State v. Carley ( 2022 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
DONALD WILLIAM CARLEY, Appellant.
No. 1 CA-CR 21-0321
FILED 6-7-2022
Appeal from the Superior Court in Mohave County
No. S8015CR201901005
The Honorable Billy K. Sipe, Judge Pro Tempore
AFFIRMED
COUNSEL
Mohave County Attorney’s Office, Kingman
By Jacob Cote
Counsel for Appellee
Robbins & Curtin, PLLC, Phoenix
By Joel B. Robbins, Jesse Showalter
Counsel for Appellant
STATE v. CARLEY
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.
B R O W N, Judge:
¶1 Donald Carley appeals the superior court’s denial of his
petition to clear his arrest record and indictment relating to a charge for
theft, a class three felony. Because Carley has not shown an abuse of
discretion, we affirm.
BACKGROUND
¶2 In June 2019, Carley was indicted for fraudulent schemes and
artifices, solicitation of fraudulent schemes and artifices, prohibited acts
(improper influence of public officer or employee), and theft (value over
$4,000) arising from various acts allegedly committed during his
employment as a supervisor for Bullhead City. The first three charges arose
from an incident in which Carley had a personal item delivered to his
workplace to avoid a delivery charge. This appeal concerns only the fourth
charge, theft of property.
¶3 The theft charge stemmed from three different materials
allegedly stolen by Carley. First, he allegedly removed a large pipe that
was located at a fire station. Second, he allegedly made steel rails for his
personal trailer to haul work equipment, which he created from steel scraps
he took from work. Third, he allegedly used City resources to have metal
signs made for him and placed the signs on his property.
¶4 In July 2020, the court granted the State’s motion to dismiss
the charges without prejudice. Carley then filed a petition to clear his arrest
record and indictment under A.R.S. § 13-4051:
A. Any person who is wrongfully arrested, indicted or
otherwise charged for any crime may petition the superior
court for entry on all court records, police records and any
other records of any other agency relating to such arrest or
indictment a notation that the person has been cleared.
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B. After a hearing on the petition, if the judge believes that
justice will be served by such entry, the judge shall issue the
order requiring the entry that the person has been cleared on
such records, with accompanying justification therefor, and
shall cause a copy of such order to be delivered to all law
enforcement agencies and courts. The order shall further
require that all law enforcement agencies and courts shall not
release copies of or provide access to such records to any
person except on order of the court.
¶5 The superior court held an evidentiary hearing on Carley’s
petition. On the theft charge, the court heard testimony on the value of the
allegedly stolen items. Originally, the State had alleged the pipe had a
value of $9,800, but a former fire department employee tasked with finding
someone to remove the pipe testified that he informed the police during the
investigation that the pipe had no value and the department would have
incurred costs to remove it, while the city engineer testified that he
estimated the pipe was worth $200. The State alleged the trailer rails had a
value of $118. The court heard testimony that the leftover steel scraps
Carley used for the rails usually went to a recycler, and sometimes other
uses were found for the scraps. As for the signs, the court heard testimony
that 10 signs made at the City’s sign shop, most of which were in “almost
brand-new” condition, were removed from Carley’s residence. Testimony
also revealed that two similar signs were found at Carley’s ranch property.
¶6 After the hearing, the court granted the petition as to the
charges of fraudulent schemes and artifices, solicitation of fraudulent
schemes and artifices, and prohibited acts, finding no legal or factual basis
for the charges. The court denied Carley’s petition as to theft, however,
finding that while there was no factual or legal basis for the theft charge
regarding the pipe or rails, it was “not wrongful for the State to charge him
with theft regarding these signs.” Following the court’s denial, Carley
asked, “whether or not [the court] might have inherent authority . . . to
somehow make a notation that under the State’s evidence it could be no
more than a Class 1 misdemeanor.” The court responded,
[I]t‘s just a general theft charge. I realize it’s charged as a
Class 3 felony, but there’s nothing in the indictment that listed
specifically each item. If the indictment listed each specific
item that they charged Mr. Carley with, I could see entering
an order that would be specific as to each item. As indicated
earlier, I don’t see where I have the authority, nor do I think
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STATE v. CARLEY
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there’s any mechanism, that would allow me to redesignate
counts that are dismissed.
¶7 Carley filed a motion for reconsideration, which the court
denied. He also filed a second petition to clear the remaining theft charge,
asserting for the first time that the State had presented an estimated value
of $600 for the signs in the grand jury proceeding and therefore did not
exceed the $1,000 threshold for designating theft as a felony. After the court
denied the second petition, Carley timely appealed, and we have
jurisdiction under A.R.S. § 12-2101(A)(1). See State v. Mohajerin, 226 Ariz.
103, 106, ¶ 7–8 (App. 2010) (noting that petitions under § 13-4051 initiate “a
special proceeding that is in the nature of a civil action”).
DISCUSSION
¶8 Carley argues the superior court erred in denying his petition
to clear his arrest record and indictment on the theft charge because there
was no factual basis to support designating the charge as a felony. He
argues the State alleged the pipe’s value was over $9,000 in order to
transform the misdemeanor theft charge into a felony charge, when the State
knew the pipe was worthless and did not belong to the City. According to
Carley, because the value of the signs was approximately $600, there was
no factual support for the State to charge him with theft as a felony. See
A.R.S. § 13-1802(G) (designating theft of property or services with a value
of $1,000 or more as a felony, and theft of property or services with a value
of less than $1,000 as a misdemeanor).
¶9 We review a ruling on a § 13-4051 petition for an abuse of
discretion and defer to any factual findings. See Mohajerin, 226 Ariz. at 108,
¶ 18. At the hearing on Carley’s petition, the superior court explained that
it denied Carley’s petition regarding the theft charge because there was
evidence that Carley used public labor and resources to make the signs
without proper authorization from the City. Because it was a general theft
charge, and there was some factual basis to the charge, the court further
explained there was no mechanism for it to redesignate the dismissed theft
count as a misdemeanor.
¶10 Carley argues that the plain language of § 13-4051 and its
underlying policy authorized the court to grant relief regarding the
remaining felony theft charge. He does not challenge the court’s conclusion
that there was a factual basis for the theft charge. Rather, Carley argues the
court erred because it based its decision on the incorrect belief that it did
not have discretion under § 13-4051 to grant the petition. See Mohajerin,
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STATE v. CARLEY
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226 Ariz. at 108, ¶ 18 (“When a trial court predicates its decision on an
incorrect legal standard, however, it commits an error of law and thereby
abuses its discretion.”). Carley’s position fails for several reasons.
¶11 First, nothing in the evidentiary record provides a definitive
value of the signs that Carley admitted he wrongfully obtained. Carley
repeatedly references a $600 value in his appellate briefing; however, that
value came from a detective’s testimony at the grand jury proceedings.
Although the superior court agreed to review the grand jury transcript after
counsel asked the court to take judicial notice, the transcript is not part of
the record before us. Carley included an excerpt of the transcript with his
opening brief, but that does not make it part of the official appellate record.
See ARCAP 11(b) (“A party that wants the record on appeal to include a
transcript of an oral proceeding that was not previously filed as a part of
the official record must order the transcript[.]”). We therefore decline to
consider it. And even if the $600 estimated value accurately reflects the
grand jury transcript, Carley cites no authority suggesting the State would
be bound by that estimate if the case proceeded to trial.
¶12 Second, nothing in the language of § 13-4051 supports
Carley’s position that the superior court had the authority to essentially
grant the petition as to felony theft, but then add a notation to the effect that
the arrest records and indictment for misdemeanor theft would not be
cleared. When a party requests clearance under § 13-4051, the request must
be tied to the specific allegations or charges as alleged in the arrest and
charging documents. See A.R.S. § 13-4051(A) (authorizing petition seeking
clearance “on all court records, police records and any other records of any
other agency relating to such arrest or indictment” (emphasis added)). Stated
differently, the statute provides for an all or nothing remedy as to each
charge, and it is not our role to question the wisdom of the legislature in
crafting the scope of the remedy. See Folk v. City of Phoenix, 27 Ariz. App.
146, 150 (1976) (noting questions as to the wisdom of a legislative act must
be left to the legislative branch, not the courts).
¶13 Third, if the theft charge proceeded to trial, the jury would be
tasked with deciding whether a theft occurred, and if so, it would determine
the value of the property taken. As noted, nothing in this record
conclusively establishes what that value would be.
¶14 Finally, Carley cites no authority for the proposition that a
court may grant a petition to clear an arrest record or indictment when a
factual basis exists supporting the allegations contained in those records.
He relies on Mohajerin to suggest that the word “wrongfully” as it appears
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STATE v. CARLEY
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in § 13-4051 should be interpreted broadly, such that a court would have
discretion to grant relief even if there are some colorable facts relating to
the charge.
¶15 Carley’s reliance on Mohajerin is misplaced. In that case, the
defendant was arrested and charged with sexual assault and threatening or
intimidating, where his wife was the alleged victim. 226 Ariz. at 104–105,
¶ 2. After she recanted, the charges were dismissed. Id. at 105. Following
dismissal, the defendant filed a § 13-4051 petition, arguing he was
wrongfully arrested and charged because he was factually innocent. See id.
at 105, 109, ¶¶ 3, 19. On appeal, this court affirmed the denial of his petition,
finding that “any determination that [the defendant] was factually innocent
would be unsupported by and contrary to the record,” because at the
evidentiary hearing, his wife did not recant the factual content of her
allegations. Id. at 114, ¶¶ 23, 24. While we noted that a defendant is not
limited to proving he was unlawfully arrested or charged to establish its
wrongfulness, we concluded that the defendant did not show he was
wrongfully arrested and indicted because he failed to establish that he was
factually innocent. Id. at 113–15, ¶¶ 22, 24. Similarly, Carley does not
challenge the superior court’s conclusion that there was a factual basis for
the theft charge; thus, he has failed to establish that the court abused its
discretion.
CONCLUSION
¶16 We affirm the superior court’s denial of Carley’s petition to
clear his arrest record and indictment.
AMY M. WOOD • Clerk of the Court
FILED: AA
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