State v. Sorensen

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ETHAN THOMAS SORENSEN, Appellant.

No. 1 CA-CR 21-0518
FILED 5-30-2023

Appeal from the Superior Court in Maricopa County
No. CR2014-148130-001
The Honorable Margaret LaBianca, Judge

VACATED AND REMANDED WITH INSTRUCTIONS

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Jason Kalish, Faith Klepper
Counsel for Appellee

Mitchell Stein Carey Chapman, PC, Phoenix
By Dave Roscoe, Flynn Carey
Counsel for Appellant

Arizona Prosecuting Attorneys’ Advisory Council, Phoenix
By Elizabeth Burton Ortiz
Amicus Curiae in support of the superior court’s ruling
 STATE v. SORENSEN
Opinion of the Court

OPINION

Presiding Judge Brian Y. Furuya delivered the opinion of the Court, in
which Judge Jennifer B. Campbell and Judge Paul J. McMurdie joined.

F U R U Y A, Judge:

¶1 Ethan Thomas Sorensen appeals from the superior court’s
denial of the State’s petition to expunge all records relating to his conviction
for solicitation to possess marijuana for sale. Because we conclude sale-
related marijuana offenses are eligible for expungement under Arizona
Revised Statutes (“A.R.S.”) § 36-2862(A)(1), we vacate the court’s denial
order and remand with instructions to grant the expungement petition.

FACTS AND PROCEDURAL HISTORY

¶2 The facts are undisputed. The police arrested Sorensen in
October 2014 for possessing about 18 grams (about two-thirds of an ounce)
of marijuana. The State charged him with one count each of possession of
marijuana for sale, a Class 4 felony, and possession of drug paraphernalia,
a Class 6 felony. He pled guilty to an amended count of solicitation to
commit possession of marijuana for sale, a Class 6 undesignated felony.
Consistent with the plea agreement, the superior court placed him on two
years’ supervised probation and dismissed the remaining charge. In 2016,
the court terminated his probation and designated the conviction a Class 1
misdemeanor.

¶3 In November 2020, Arizona voters passed an initiative
legalizing adult possession and personal use of marijuana and authorizing
the expungement of adult convictions for the possession and use of
qualifying amounts of marijuana, codified at A.R.S. §§ 36-2850 to -2865. See
State v. Williams, 254 Ariz. 516, 518–20 ¶¶ 2, 11 (App. 2023) (discussing and
applying § 36-2862(A)). Section 36-2862(A) provides:

Beginning July 12, 2021, an individual who was arrested for,
charged with, adjudicated or convicted by trial or plea of, or
sentenced for, any of the following offenses based on or
arising out of conduct occurring before the effective date of
this section may petition the court to have the record of that
arrest, charge, adjudication, conviction or sentence expunged:

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Opinion of the Court

1. Possessing, consuming or transporting two and one-half
ounces or less of marijuana, of which not more than twelve
and one-half grams was in the form of marijuana
concentrate.

2. Possessing, transporting, cultivating or processing not
more than six marijuana plants at the individual’s primary
residence for personal use.

3. Possessing, using or transporting paraphernalia relating
to the cultivation, manufacture, processing or
consumption of marijuana.

Section 36-2862(I) allows prosecuting agencies to file expungement
petitions on behalf of eligible individuals. Accord Arizona Rules of Criminal
Procedure 36(a)(3).

¶4 After the initiative became effective, the State petitioned to
expunge all records related to Sorensen’s arrest and conviction. The court
denied the petition, and the State’s motion to reconsider, concluding § 36-
2862(A)(1) bars expungement for sale-related marijuana offenses.

¶5 Sorensen’s timely appeal followed. We have jurisdiction
under Article 6, § 9 of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1), 13-4031, -4033(A)(3), and 36-2862(F).

DISCUSSION

¶6 Arguing § 36-2862(A)(1)’s plain language includes sale-
related marijuana offenses, Sorensen contends the superior court
improperly refused to vacate his conviction and expunge the related
records.1 The State agrees the court should have granted its petition but
contends the statutorily undefined term “possessing” is subject to more
than one reasonable interpretation, rendering the statute ambiguous. In
support of the denial order, amicus curiae Arizona Prosecuting Attorneys’
Advisory Council asserts the expungement statute unambiguously

1 Although originally arguing that § 36-2862(B)(3) directs the superior
court to grant expungement petitions unless the prosecuting agency proves
the defendant is ineligible for expungement, Sorensen’s reply on appeal
states that assertion appears “to be resolved by Rule 36(d)(3) of the Arizona
Rules of Criminal Procedure.” Accordingly, we do not address the issue.
See State v. Foshay, 239 Ariz. 271, 273 ¶ 5 n.2 (App. 2016) (declining to
consider an argument where the appellant abandoned it in his reply brief).

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Opinion of the Court

excludes possessing-marijuana-for-sale offenses. We review the court’s
ruling for an abuse of discretion but review statutory interpretation issues
de novo. State v. Hall, 234 Ariz. 374, 375 ¶ 3 (App. 2014).

¶7 As when construing statutes adopted by the Legislature,
interpreting a statute enacted by initiative “requires us to determine the
meaning of the words the [electorate] chose to [adopt]. We do so neither
narrowly nor liberally, but rather according to the plain meaning of the
words in their broader statutory context, unless the [adopted statutory
language] directs us to do otherwise.” S. Ariz. Home Builders Ass’n v. Town
of Marana, 522 P.3d 671, 676 ¶ 31 (2023). “Only if the language is unclear or
ambiguous do we employ principles of statutory construction to determine
the [statute]’s intent.” State v. Lee, 236 Ariz. 377, 383 ¶ 16 (App. 2014).
Ambiguity exists when a term “is open to multiple reasonable
interpretations.” Glazer v. State, 244 Ariz. 612, 614 ¶ 12 (2018). We give
statutorily undefined words their ordinary meaning unless context directs
otherwise and may consult dictionary definitions to do so. Shepherd v. Costco
Wholesale Corp., 250 Ariz. 511, 515 ¶ 20 (2021); see also A.R.S. § 1-213.

¶8 We determine a word’s meaning from its broader context,
examining the entire statute and considering “statutes that are in pari
materia—of the same subject or general purpose—for guidance and to give
effect to all of the provisions involved.” Stambaugh v. Killian, 242 Ariz. 508,
509 ¶ 7 (2017). “A cardinal principle of statutory interpretation is to give
meaning, if possible, to every word and provision so that no word or
provision is rendered superfluous.” Nicaise v. Sundaram, 245 Ariz. 566, 568
¶ 11 (2019). “We must ‘strive to construe a statute and its subsections as a
consistent and harmonious whole.’” State v. Green, 248 Ariz. 133, 135 ¶ 8
(2020) (quoting Hoffman v. Chandler ex rel. Cnty. of Pima, 231 Ariz. 362, 363 ¶
7 (2013)). To that end, when the electorate adopts “restrictive language in
one section of the statute but not in the other section,” we presume “it
intended the restriction to apply only where it was designated.” Garcia v.
Butler in & for Cnty. of Pima, 251 Ariz. 191, 195 ¶ 16 (2021).

¶9 We begin by examining the statute’s text. While the term
“possessing” is not defined in A.R.S. §§ 1-215, 36-2850, or elsewhere in Title
36, Title 13 does provide insight. In the criminal context, “‘Possess’ means
knowingly to have physical possession or otherwise to exercise dominion
or control over property,” A.R.S. § 13-105(34), and “‘Possession’ means a
voluntary act if the defendant knowingly exercised dominion or control
over property.” A.R.S. § 13-105(35). These definitions align with ordinary
meaning. Accord Possess, Black’s Law Dictionary (11th ed. 2019) (defining
“possess” as “to have in one’s actual control; to have possession of”);

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Opinion of the Court

Possess, Merriam-Webster.com, https://www.merriam-webster.com/
dictionary/possess (last visited May 17, 2023) (meaning, among others,
“[t]o have and hold as property: own”). Nothing in these broad criminal or
common definitions encompasses a person’s intent or purpose in
possessing an item. Thus, ascribing the natural meaning to “possessing”
weighs against the notion voters intended to impose an intent-based
limitation in the application of § 36-2862(A)(1).

¶10 A harmonious reading of the expungement statute bolsters
the conclusion that subsection (A)(1) permits the expungement of sale-
related qualifying offenses. See Green, 248 Ariz. at 135 ¶ 8. Although
subsection (A)(2) expressly limits its applicability to “the personal use” of
marijuana for the listed offenses, subsections (A)(1) and (A)(3) omit that
restrictive language. This distinction must be accorded meaning and
indicates imposition of a personal-use constraint only where it was
specifically designated. See Garcia, 251 Ariz. at 195 ¶ 16. Concluding
otherwise improperly reduces “the personal use” in subsection (A)(2) to
mere surplusage. See Nicaise, 245 Ariz. at 568 ¶ 11.

¶11 Examining Arizona’s criminal code in pari materia yields the
same result. See Stambaugh, 242 Ariz. at 509 ¶ 7; see also Garcia, 251 Ariz. at
195 ¶¶ 16–17 (considering Title 13 and Title 36 in pari materia). First, § 13-
105(34), as noted, defines “possess” as “knowingly to have physical
possession or otherwise to exercise dominion or control over property,”
which aligns with common definitions of the term. Second, subsection
(A)(1) lists “transporting” marijuana as a qualifying offense, and such
offenses require proof of a for-sale element; transporting marijuana for
personal use is not a cognizable crime in Arizona. See A.R.S. § 13–3405(A)(4)
(transporting marijuana); State v. Chabolla-Hinojosa, 192 Ariz. 360, 364 ¶ 16
n.2 (App. 1998) (explaining “[t]he crime of transportation of marijuana no
longer exists in Arizona” following the Legislature’s repeal of the former §
13-3405(A)(4) in 1987). Subsection (A)(1)’s inclusion of transporting
offenses thus displays the electorate’s intent to allow expungement of sale-
related qualifying offenses.

¶12 In sum, we conclude § 36-2862(A)(1) authorizes expungement
of sale-related marijuana offenses when they otherwise satisfy the statute’s
eligibility requirements. As a result, the court erred by denying the State’s
expungement petition.

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Opinion of the Court

CONCLUSION

¶13 We vacate the denial order and remand with instructions to
grant the expungement petition consistent with this opinion.

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

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