State v. Wanna

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

NINOS ROBERT WANNA, Appellee.

No. 1 CA-CR 21-0438
FILED 3-2-2023

Appeal from the Superior Court in Maricopa County
No. CR2012-135555-001
The Honorable Monica S. Garfinkel, Judge Pro Tempore

AFFIRMED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Krista Wood
Counsel for Appellant

Horan Law Offices, PC, Phoenix
By Adnan Horan
Counsel for Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Peter B. Swann1 delivered the decision of the court, in which
Presiding Judge Cynthia J. Bailey and Judge D. Steven Williams joined.

S W A N N, Judge:

¶1 The state appeals the superior court’s order granting Ninos
Robert Wanna’s petition for Expungement of Records. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In July 2012, two Phoenix Police Officers responded to a
residential alarm. When they arrived at the home, they encountered Wanna
and his wife sitting at a table on the back patio. The officers smelled burnt
marijuana and saw a clear plastic baggy containing a green, leafy substance
on the table labeled “Mowie Wowie.” Wanna admitted to smoking
marijuana and the officers placed him under arrest. Their subsequent
search of Wanna’s wallet revealed a piece of plastic containing a tar-like
substance later identified as heroin. The officers also found a razor blade,
two straws with burnt ends, and several pieces of tin foil. After being
advised of his rights consistent with Miranda v. Arizona, 384 U.S. 426 (1966),
Wanna admitted to using the tin foil and straws to smoke heroin.

¶3 The state charged Wanna with (1) possession of drug
paraphernalia, a class 6 felony; (2) possession or use of narcotic drugs, a
class four felony; and (3) possession or use of marijuana, a class six felony.
In August 2012, Wanna entered a plea agreement by which he pled guilty
to one count of possession of drug paraphernalia. The sentencing minute
entry states that Wanna possessed drug paraphernalia in violation of A.R.S.

1 Judge Peter B. Swann was a sitting member of this court when the
matter was assigned to this panel of the court. He retired effective
November 28, 2022. In accordance with the authority granted by Article 6,
Section 3, of the Arizona Constitution and pursuant to A.R.S. § 12-145, the
Chief Justice of the Arizona Supreme Court has designated Judge Swann as
a judge pro tempore in the Court of Appeals for the purpose of participating
in the resolution of cases assigned to this panel during his term in office and
for the duration of Administrative Order 2022-162.

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Decision of the Court

§§ 13-3401, 13-3408, 13-3415, 13-3418, 13-610, 12-269, 13-701, 13-702, 13-604,
13-801, 13-901.01(D), and 13-901.01(H).2

¶4 A.R.S. § 13-3408 makes it unlawful to possess narcotic drugs.
However, at Wanna’s November 2012 sentencing hearing, his attorney read
the following factual basis:

Your Honor, on or about July 4th, 2012, at the residence of
17419 North 35th Avenue in Phoenix, Mr. Wanna knowingly
possessed a baggy known to be stored for a usable quantity
of marijuana that occurred in Phoenix, Maricopa County, the
state of Arizona, Judge.

¶5 The court asked the state if it wished to make any additions
or corrections to the factual basis, to which the state responded, “No, your
Honor.” The court then sentenced Wanna to three years’ probation, six
months’ deferred jail, and substance abuse treatment.

¶6 Nine years later in August 2021, Wanna moved the court to
expunge his drug paraphernalia conviction and the underlying arrest
record under A.R.S. § 36-2862. The state opposed the motion, arguing that
Wanna’s paraphernalia conviction related to narcotic drugs rather than
marijuana, making him ineligible for expungement under the statute. The
superior court granted Wanna’s petition. The state appeals.

DISCUSSION

I. WE HAVE JURISDICTION OVER THIS APPEAL.

¶7 Our jurisdiction is limited to those appeals authorized by
statute. See Ariz. Const. art. 6, § 9. We review questions of statutory
interpretation de novo. State v. Holle, 240 Ariz. 300, 302, ¶ 8 (2016). The
state may not appeal criminal cases “absent express legislative
authorization to the contrary.” Arizona v. Manypenny, 451 U.S. 232, 246
(1981). A.R.S. § 13-4032 outlines the exclusive grounds on which the state
may appeal from criminal cases. Wanna argues that we do not have
jurisdiction over this matter because § 13-4032 does not give the state a right

2 In the interest of completeness, we have included the entire string
citation from the minute entry. However, only § 13-3408 (prohibiting the
possession of narcotic drugs), § 13-3415 (prohibiting the possession of drug
paraphernalia), and § 13-3401 (providing relevant definitions) are relevant
to our discussion.

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Decision of the Court

to appeal the superior court’s granting of an expungement petition. We
disagree.

¶8 The state may appeal from “[a]n order made after judgment
affecting the substantial rights of the state.” A.R.S. § 13-4032(4). The state
has a substantial right to ensure that defendants face the legal consequences
of their convictions. For example, in State v. McKelvey, our supreme court
held that the state could appeal an early-release order because it has a
substantial interest in having prison sentences carried out. 30 Ariz. 265,
267–68 (1926). So too here, the state has a substantial right to preserve the
host of legal consequences that conviction records may carry. See, e.g.,
A.R.S. §§ 13-701(D)(11) (including certain convictions as sentencing
aggravators), 13-703 (establishing sentencing schemes for repetitive
offenders), 36-2862(D) (providing that expunged conviction cannot be used
in subsequent prosecution), 16-101(A)(5) (precluding felony convicts from
voting absent expungement), 25-403.04(A) (describing rebuttable
presumption disfavoring sole or joint legal decision-making by parents
with certain convictions). Because the granting of an expungement order
directly interferes with that right (and does not challenge the disposition of
the underlying criminal case), we have jurisdiction under A.R.S. § 13-
4032(4).3

II. THE SUPERIOR COURT DID NOT ABUSE ITS DISCRETION IN
EXPUNGING WANNA’S CONVICTION.

¶9 We review the superior court’s grant of a motion for
expungement for abuse of discretion but review issues of statutory
construction de novo. See State v. Bernini, 233 Ariz. 170, 173–74, ¶ 8 (App.
2013). “An error of law committed in reaching a discretionary conclusion
may . . . constitute an abuse of discretion.” State v. Hall, 234 Ariz. 374, 375
¶ 3 (App. 2014) (citation omitted). The state argues that because a plea
agreement is interpreted according to contract law standards, the superior

3 In State v. Santillanes, our colleagues held that the state does not have
a right to directly appeal expungement orders under A.R.S. § 36-2862. ___
Ariz. ___, ___, ¶¶ 11–19, 522 P.3d 691, 695–96 (App. 2022). The court found
that Arizona voters did not intend to give the state a right to directly appeal
such expungement orders and that the state’s statutory grounds for appeal
are inapplicable in such cases. Id. But A.R.S. § 13-4032 explicitly grants the
state standing in cases where its substantial rights are at issue. Because the
expungement of a conviction affects a substantial right of the state, we
respectfully depart from the holding in Santillanes.

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court erred in finding the factual basis altered the written plea agreement.
We find no error in the court’s conduct.

¶10 Before accepting a plea under Ariz. R. Crim. P. 17.3, the
superior court must first “be satisfied that there is a factual basis to support
all the essential elements of the charge.” State v. Johnson, 142 Ariz. 223, 224
(1984). In its minute entry granting Wanna’s expungement petition, the
court found that “[Wanna]’s conviction for Count 1 (as amended) for
Possession of Drug Paraphernalia, was supported by a factual basis for
possession of drug paraphernalia for marijuana, rather than drug
paraphernalia for use with a narcotic drug, as originally charged.” The
court’s findings are supported by the transcript from Wanna’s 2012 change
of plea hearing, which made no mention of narcotic drugs.

¶11 The state argues that the proper redress for any issues with
the factual basis would be “to set aside the plea and reinstate the original
charges.” In defense of this assertion, the state references State v. Coleman, 152 Ariz. 583 (App. 1987). In Coleman, we set aside the defendant’s plea and
reinstated his original charges because we found the factual basis
insufficient to support his conviction. Id. at 587. That is not the case here.

¶12 Wanna was convicted under Arizona’s drug paraphernalia
statute, which states:

[I]t is unlawful for any person to use, or to possess with intent
to use, drug paraphernalia to plant, propagate, cultivate,
grow, harvest, manufacture, compound, convert, produce,
process, prepare, test, analyze, pack, repack, store, contain,
conceal, inject, ingest, inhale or otherwise introduce into the
human body a drug in violation of this chapter.

A.R.S. § 13-3415(A). His conviction is supported by the factual basis the
parties agreed to at his change of plea hearing: that Wanna possessed a
plastic baggie he knew contained marijuana. These facts cover every
element of the offense. The record supports the superior court’s finding
that Wanna’s paraphernalia conviction related to marijuana rather than
narcotic drugs, making him eligible for expungement under A.R.S. § 36-
2862.

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CONCLUSION

¶13 We affirm.

AMY M. WOOD • Clerk of the Court
FILED: AA

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