State v. Wade

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Respondent,

v.

WILLIAM EARL WADE, JR., Petitioner.

No. 1 CA-CR 23-0421 PRPC
FILED 10-02-2025

Petition for Review from the Superior Court in Maricopa County
No. CR2018-158411-001, CR2018-121601-001
The Honorable Ronee Korbin Steiner, Judge

REVIEW GRANTED; RELIEF GRANTED IN PART;
REMANDED FOR RE-SENTENCING

APPEARANCES

Maricopa County Attorney’s Office, Phoenix
By Christine Davis
Counsel for Respondent

William Earl Wade, Jr., Winslow
Petitioner Pro Se
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Anni Hill Foster and Judge Paul J. McMurdie joined.

B R O W N, Judge:

¶1 Petitioner William Earl Wade, Jr. seeks review of the superior
court’s order denying his claims for post-conviction relief (“PCR”) under
Arizona Rule of Criminal Procedure (“Rule”) 32. For the following reasons,
we grant review, grant relief in part, and remand for re-sentencing.

BACKGROUND

¶2 In May 2018, police officers arrested Wade after discovering a
plastic baggie containing methamphetamine in his pocket while searching
him during a non-drug-related investigation. State v. Wade, 1 CA-CR 20-
0096, 2021 WL 709765, at *1, ¶ 2 (Ariz. App. Feb. 23, 2021) (mem. decision).
In December 2018, while on release from that arrest, Wade was arrested
after police officers discovered a glass pipe and a baggie containing
methamphetamine in his pocket. State v. Wade, 1 CA-CR 20-0095, 2021 WL
710187, at *1, ¶ 2 (Ariz. App. Feb. 23, 2021) (mem. decision).

¶3 Following a trial on the May charge, the jury found Wade
guilty of possession or use of dangerous drugs, a class 4 felony. Wade, 1
CA-CR 20-0096, at *1, ¶ 5. Another trial was held on the December charges,
at which Wade testified and admitted to a 2016 felony conviction for
possession of marijuana. The jury found Wade guilty of possession or use
of dangerous drugs, a class 4 felony, and guilty of possession of drug
paraphernalia, a class 6 felony. Wade, 1 CA-CR 20-0095, at *1, ¶ 3. The jury
also found an aggravating circumstance because the December offenses
were committed while Wade was released on his own recognizance after
the May arrest. A.R.S. § 13-708(D). The State did not seek to prove any of
Wade’s other prior convictions.

¶4 The superior court held a joint sentencing hearing for both
offenses. Relying on the admitted prior conviction for marijuana
possession, the court sentenced Wade as a category two repeat offender to
four-and-a-half years’ imprisonment for the May offense. A.R.S. § 13-703(I).
And noting both the marijuana conviction and the conviction for the May

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offense, the court sentenced him as a category three repeat offender for the
December offenses as follows: a “presumptive term of 10 years plus 2 years
as a result of his being on release, for a total of 12 years” for possession or
use of a dangerous drug and a “presumptive term of 3.7 years plus 2 years
as a result of his being on release, total[ing] 5.75 years” for possession or
use of drug paraphernalia. The court ordered presentence incarceration
credit of 200 days and ordered all sentences to run concurrently. Wade
appealed, and this court affirmed but modified his presentence
incarceration credit to 202 days. Wade, 1 CA-CR 20-0096, at *2, 5, ¶¶6–8, 26;
Wade, 1 CA-CR 20-0095, at *3, ¶ 16.

¶5 In November 2020, Arizona voters passed Proposition 207,
which decriminalized possession of small amounts of marijuana, A.R.S.
§ 36-2852, and provided an avenue for expungement of previous
convictions for possession of marijuana, A.R.S. § 36-2862. Wade
successfully petitioned to expunge his 2016 conviction for possession of
marijuana. In its response to Wade’s petition for expungement, the State
included a motion requesting the superior court to schedule a re-sentencing
hearing if the petition was granted because the marijuana conviction “was
used to enhance the sentences in those matters.” The court granted the
petition for expungement but took no action on the State’s motion,
explaining that (1) Wade was free to seek PCR relief under Rule 32 but had
not done so, and (2) “re[-]sentencing would not change the outcome given,
that there are other convictions on which the Court can rely to maintain the
same sentence.” Wade then filed a motion requesting a re-sentencing
hearing, which the court denied on the grounds that such a request must be
made through a Rule 32 petition.

¶6 In November 2021, Wade filed a pro per notice of PCR and
petition for PCR, asserting in part that a significant change in the law
affected his sentences. See Ariz. R. Crim. P. 32.1(g) (“Grounds for relief
[include] a significant change in the law that, if applicable to the defendant’s
case, would probably overturn the defendant’s . . . sentence.”). In February
2022, the superior court appointed counsel to represent Wade during the
PCR process. Almost one year later, PCR counsel filed a notice of no
colorable claims, explaining that even though the marijuana conviction was
expunged, it “would still leave [Wade] with three other priors and thus
have no effect on [his] sentence.” Wade then filed a PCR petition in both
cases. He raised several issues, including lack of proof of prior convictions,
but did not specifically address expungement. The State argued the
petitions were procedurally deficient, urging the court to either return them
along with orders outlining the deficiencies, or to summarily dismiss the

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petitions. In his reply, Wade asserted that the only aggravating factor at
sentencing was his now expunged marijuana conviction.

¶7 The superior court denied Wade’s claims for PCR and
dismissed his petitions. The court acknowledged expungement of the
marijuana conviction but reasoned that Wade “has multiple other
allegeable prior felony convictions, which could have been alleged and will
be alleged and proven if he was to be re[-]sentenced.”

¶8 Wade timely petitioned this court for review of the denial and
dismissal of his claims for PCR. The State did not respond on the merits
but instead filed a notice of acknowledgment asserting the petition was
“inadequate and did not comply with procedural rules.” We have
jurisdiction under A.R.S. § 13-4239(C) and Rule 32.16.

DISCUSSION

¶9 Absent an abuse of discretion, we will not disturb a superior
court’s ruling on a petition for post-conviction relief. State v. Gutierrez, 229
Ariz. 573, 577, ¶ 19 (2012). “An abuse of discretion occurs if the PCR court
makes an error of law or fails to adequately investigate the facts necessary
to support its decision.” State v. Pandeli, 242 Ariz. 175, 180, ¶ 4 (2017). Wade
has the burden to show the court abused its discretion. State v. Poblete, 227
Ariz. 537, 538, ¶ 1 (App. 2011).

¶10 Wade argues that he is entitled to re-sentencing because “[t]he
only prior discussed or used [at his sentencing] was a possession of
marijuana charge.” We agree.

¶11 After Prop 207, “use or possession of marijuana became legal
within certain limits, A.R.S. § 36-2852, and prior convictions arising from
such use or possession must be vacated and expunged on request and
cannot be used as prior convictions, § 36-2862(C)(1)–(2), (E).” State v.
Williams, 258 Ariz. 53, 57, ¶ 13 (2024). Wade’s “enhanced sentence [is]
retroactively illegal.” Id.; see also State v. Shrum, 220 Ariz. 115, 118, ¶ 14
(2009) (“In those rare cases when a “new rule” of law is announced, Rule
32.1(g) provides a potential avenue for relief.”).

¶12 The State alleged multiple prior felony convictions, but the
superior court expressly relied only on the admitted marijuana conviction
to enhance Wade’s sentence. And nothing in the record indicates that he
knowingly and intelligently admitted his older prior felony convictions. See
State v. Morales, 215 Ariz. 59, 61, ¶ 8 (2007) (explaining that for the purposes

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of sentence enhancement, the court must ensure a defendant makes an
admission of prior convictions voluntarily and intelligently).

¶13 Because Wade did not admit to any prior convictions other
than his marijuana conviction, the court could not rely on any other prior
convictions at sentencing without following the procedure set out in Rule
17. This procedure includes (1) engaging in a plea-type colloquy to confirm
Wade would understand the consequences of an admission, id. at ¶ 7, and
(2) explaining the effect of admitting a prior conviction on Wade’s sentence,
State v. Young, 230 Ariz. 265, 268, ¶ 8 (App. 2012). See Ariz. R. Crim P. 17.2.,
17.3, 17.4.

¶14 Our review of the record does not reveal the court complied
with these procedures for any of Wade’s convictions beyond the marijuana
conviction (which he admitted while testifying) and the conviction for the
May offense (which the court took judicial notice of because the same
judicial officer presided over the trial). At sentencing, Wade waived a trial
on his prior convictions, but that had no legal effect because he had already
admitted the marijuana conviction and nothing in the record shows there
was an admission or proof of any other prior conviction. The court stated
that Wade “admitted to his prior felonies,” but our review of the transcripts
reveals only the admission of the marijuana conviction. Furthermore, the
minute entry ruling denying Wade’s PCR petition states that a trial on the
prior convictions “was conducted” but nothing in the record confirms that
statement.

¶15 The State must prove the existence of Wade’s prior felony
convictions to enhance his sentences in the absence of his marijuana
conviction. See State v. Nash, 143 Ariz. 392, 403 (1985) (holding when the
State “alleges a prior conviction, it must prove two facts: (1) that the
defendant in the present case and the one convicted in the prior case are the
same individual, and (2) that there was in fact a prior conviction”). Because
those facts are not present in the record before us, we cannot sua sponte
replace Wade’s marijuana conviction with another one of his alleged prior
convictions to satisfy the requirements of A.R.S. § 13-105(22). Thus, the
superior court erred in denying Wade’s petition.

¶16 In reaching this conclusion, we recognize that Wade should
have clearly asserted the relief he was seeking (re-sentencing based on
expungement) in the PCR petition he filed after his counsel found there
were no colorable claims. But the State was aware of the expungement
issue and its potential impact on Wade’s sentences and even requested that
he be re-sentenced. Moreover, notwithstanding the deficiencies of Wade’s

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PCR petition, the superior court still addressed the expungement issue,
concluding he was not entitled to relief. The State could have addressed
the expungement issue Wade has presented in this court, but it filed only
the notice of acknowledgement in lieu of a response to his petition for
review. Under these unique circumstances, we have addressed the merits
of Wade’s claim that a significant change in the law affected his sentencing.

¶17 In his petition for review, Wade summarily references
additional issues, such as unlawful arrest, failure to properly provide
Miranda warnings, lack of field testing or photographs, lack of testimony
from the arresting officer, replacement of a juror, and conflict of interest by
counsel. Because these issues are either improperly raised under Rule 32,
unsupported by record citations, or waived, we do not address them. See
Ariz. R. Crim. P. 32.1 (proper grounds for relief), 32.7(b) (legal and record
citations), 32.2(a)(3) (waiver).

CONCLUSION

¶18 We grant review and grant relief in part by vacating the
portion of the superior court’s order rejecting his claim that he should be
re-sentenced based on expungement of his marijuana conviction. We
therefore remand for re-sentencing, at which time the State may elect to
prove one or more of Wade’s prior convictions. We otherwise deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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