State v. Simental

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

CHRISTY SIMENTAL, Appellant.

No. 1 CA-CR 23-0525
FILED 01-30-2025

Appeal from the Superior Court in Maricopa County
No. CR1991-008017
The Honorable Daniel G. Martin, Judge

AFFIRMED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Christine A. Davis, Jason Easterday
Counsel for Appellee

Sandra Day O’Connor College of Law, Phoenix
By Randal McDonald, Robert J. Dormady, Andi Humphreys,
Jill Logan (certified limited practice student), Connie Que (certified
limited practice student)
Counsel for Appellant
 STATE v. SIMENTAL
Opinion of the Court

OPINION

Vice Chief Judge Randall M. Howe delivered the opinion of the court, in
which Presiding Judge Michael S. Catlett and Judge Jennifer M. Perkins
joined.

H O W E, Judge:

¶1 Christy Simental appeals the trial court’s denial of her petition
to expunge a past marijuana conviction. She argues (1) the trial court may
not rely on a grand jury transcript containing hearsay in determining
whether an offense is eligible for expungement under A.R.S. § 36-2862, (2)
the trial court improperly shifted the State’s burden of proof onto her, and
(3) she was entitled to an evidentiary hearing regardless whether she
requested one. We reject her arguments and affirm the court’s denial of
Simental’s petition.

¶2 The trial court can consider the extended record in post-
conviction proceedings. See State v. Johnson, 181 Ariz. 346, 349 (App. 1995)
(explaining that the trial court may review the extended record to
determine a factual basis for a guilty plea). We now clarify that the trial
court may similarly review the extended record when deciding if a
marijuana offense is eligible for expungement. This may include review of
documents containing hearsay, such as a grand jury transcript, especially
when the amount of marijuana involved in the underlying offense is not
otherwise identified.

FACTS AND PROCEDURAL BACKGROUND

¶3 In 1992, Simental pled guilty to possession of marijuana for
sale, in an amount less than one pound, a class four felony. The trial court
suspended the imposition of sentence and placed her on a four-year
probation term. The court revoked her probation when she was found
guilty of two counts each of first-degree murder and kidnapping in 1995.
See State v. Simental, 1 CA-CR 96-0067 & -0092 (Ariz. App. July 11, 1996)
(mem. decision).

¶4 In August 2023, Simental petitioned for expungement of her
1992 marijuana conviction under A.R.S. § 36-2862(A)(1). Simental did not
request an evidentiary hearing. The State opposed the petition, requesting

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 STATE v. SIMENTAL
Opinion of the Court

that the trial court review the grand jury transcript from Simental’s
marijuana case. As documented in that transcript, an officer testified that
Simental had told him she possessed marijuana. The officer testified that,
after a search of the bedroom “where [Simental] indicated the marijuana
was,” officers found 102 grams of marijuana. This amount is just over three
and one-half ounces, or one ounce more than the statute’s two and one-half
ounce threshold for offenses to be eligible for expungement. See A.R.S. § 36
-2862(A)(1). The trial court reviewed this transcript and found that Simental
possessed an amount of marijuana greater than two and one-half ounces,
meaning her marijuana possession conviction was not eligible for
expungement. The court therefore denied her petition. Over a month
elapsed between the State’s response encouraging the trial court to review
the grand jury transcript and the court’s denial of Simental’s petition.
Simental never objected during this time. Simental now appeals, and we
have jurisdiction. Ariz. Const. art. 6, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031,
-4033(A)(3), 36-2862(F).

DISCUSSION

¶5 Simental challenges the denial of her expungement petition,
arguing that the trial court (1) should not have relied on the grand jury
testimony in evaluating the amount of marijuana at issue, (2) improperly
shifted the prosecution’s burden of proof, and (3) should have held an
evidentiary hearing. This Court reviews the denial of a petition for
expungement for an abuse of discretion but reviews issues of statutory
interpretation de novo. State v. Ibarra, 254 Ariz. 320, 323 ¶ 5 (App. 2022).

¶6 When evaluating a petition for expungement, the trial court
“must grant the petition unless the prosecuting agency establishes by clear
and convincing evidence that the offense is not eligible for expungement or
if the court finds that the offense identified in the petition is not eligible for
expungement.” Ariz. R. Crim. P. 36(d)(3) (emphasis added). The trial court
acts as a “gatekeeper,” making the initial eligibility determination. State v.
Cisneros, 255 Ariz. 564, 568 ¶ 18 (App. 2023). Here, the trial court reviewed
the grand jury transcript showing that Simental admitted to possessing
marijuana that the officers later found weighed 102 grams. This being more
than the expungable amount, the court determined that Simental’s offense
was not eligible for expungement under A.R.S. § 36-2862. Simental
characterizes this transcript as inadmissible hearsay and argues that the
State failed to rebut the presumption in favor of expungement with any
admissible evidence.

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 STATE v. SIMENTAL
Opinion of the Court

¶7 Simental correctly notes that this Court held in State v.
Santillanes that “courts may consider any admissible evidence the State
presents regarding a petitioner’s ineligibility for expungement.” 254 Ariz.
301, 308 ¶ 33 (App. 2022) (emphasis added), vacated in part on other grounds,
256 Ariz. 480 (2024). But the trial court may consider the extended record in
post-conviction proceedings. See Johnson, 181 Ariz. at 349 (“[C]ourts
reviewing the factual basis of a guilty plea should be allowed to examine
numerous sources in order to promote substantial justice.”); see also State v.
Salinas, 181 Ariz. 104, 106 (1994) (explaining that the evidence to support a
guilty plea “may be derived from any part of the record including
presentence reports, preliminary hearing transcripts, or admissions of the
defendant”). And when determining the factual basis of a guilty plea, “the
court may consider the defendant’s statements, police reports, certified
transcripts of grand jury proceedings, or other satisfactory information.” Ariz.
R. Crim. P. 17.3 (emphasis added). As this Court recognized in Santillanes,
the trial court may extend its inquiry “especially where [] the petitioner’s
plea agreement and factual basis are silent as to the amount of marijuana
involved in the underlying offense.” 254 Ariz. at 308 ¶ 33. This Court has
allowed the trial court to consider other documents commonly containing
hearsay (a police report, original charging documents, and a presentence
report) to determine a petitioner’s eligibility for expungement. Id. at 307
–308 ¶¶ 26, 33; see also Ibarra, 254 Ariz. at 325 ¶ 13 (referencing the plea
agreement, transcript of the change-of-plea hearing, and grand jury
transcript in reversing the trial court’s denial of an expungement petition).

¶8 Simental herself points out that the indictment, plea
agreement, change of plea minute entry, and sentencing order all fail to
specify an amount of marijuana beyond “less than one pound.” Given this
lack of specificity, the trial court reviewed the grand jury transcript to
determine the basis for the plea and its eligibility for expungement. The trial
court did not abuse its discretion by doing so.

¶9 Simental also argues that the court improperly shifted the
burden of proof to the defense by noting that her motion “inaccurately”
stated the threshold amount. The court “may independently deny the
petition if it finds ‘the offense identified in the petition is not eligible for
expungement.’” Cisneros, 255 Ariz. at 568 ¶ 18 (quoting Ariz. R. Crim. P.
36(d)(3)). In doing so, the trial court may make both findings of fact and
conclusions of law without altering the burden of proof. Id. By statute, the
court is required to make such findings. A.R.S. § 36-2862(B)(4); see also
Santillanes, 254 Ariz. at 308–309 ¶¶ 34–35 (vacating the trial court’s
expungement order for failure to include findings of fact and conclusions
of law). The trial court made the required findings of fact and conclusions

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 STATE v. SIMENTAL
Opinion of the Court

of law and did not shift the burden of proof to the defense by noting that
Simental’s petition “inaccurately” stated the law.

¶10 Finally, Simental argues that the trial court erred by failing to
hold an evidentiary hearing. “[T]ypically, failure to request a hearing will
lead to waiver of the claim on appeal.” Santillanes, 254 Ariz. at 307–308 ¶ 28.
Simental did not request a hearing; thus, the issue is waived. Regardless,
when a petitioner requests expungement,

[t]he court may hold a hearing:

(a) On the request of either the petitioner or the prosecuting
agency.
(b) If the court concludes there are genuine disputes of fact
regarding whether the petition should be granted.

A.R.S. § 36-2862(B)(2) (emphasis added). “[The] use of the word ‘may’
generally indicates permissive intent . . . while ‘shall’ generally indicates a
mandatory provision.” Walter v. Wilkinson, 198 Ariz. 431, 432 ¶ 7 (App.
2000) (citations omitted). As here, when a statute uses both “may” and
“shall” we infer that they carry their ordinary meanings. Id. Given that the
statute says the court “may” hold a hearing, the trial court has discretion to
determine if a hearing is necessary to resolve any genuine disputes. A.R.S.
§ 36-2862(B)(2).

¶11 Citing Santillanes, Simental argues “[t]his Court has held that
when the State objects to a petition for expungement, it creates a genuine
dispute of fact as to whether the petitioner is entitled to the expungement.”
But this mischaracterizes Santillanes. In Santillanes this Court stated “[h]ere,
when the State objected to Santillanes’s petition, it created a ‘genuine
dispute [] of fact’ as to Santillanes’s eligibility for expungement, and
without a hearing, the court had insufficient evidence to resolve the
dispute.” 254 Ariz. at 308 ¶ 30. This does not mean the State’s objection will
necessarily create a genuine issue of material fact requiring an evidentiary
hearing in every case but rather that “here” (in Santillanes’s case) the court
had insufficient evidence to resolve the dispute raised by the objection
without an evidentiary hearing. Id. The court need only hold a hearing
when it otherwise has insufficient evidence to resolve a dispute. Id.

¶12 Regarding Simental’s petition, the grand jury testimony
provided sufficient evidence for the trial court to determine that she
possessed more than two and one-half ounces of marijuana. The transcript
provides that she told officers that marijuana was in a bedroom. They then
searched the bedroom “where she indicated the marijuana was” and found

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 STATE v. SIMENTAL
Opinion of the Court

102 grams of marijuana. This was sufficient to dispel any genuine issues of
material fact. This Court’s general guidance that “when the State objects to
an expungement, the superior court should hold an evidentiary hearing
before deciding the petition” is not a command for the trial court to hold an
evidentiary hearing every time the State objects. Id. at 308 ¶ 29 (emphasis
added). Although the trial court could have done so, it was not compelled
to hold an evidentiary hearing.

¶13 Simental also argues the trial court was obliged to hold an
evidentiary hearing because the State requested one. The State’s response
to the petition to expunge states “[i]f the Court does not deny the petition
based on the pleadings, the State requests an evidentiary hearing.” The trial
court ruled on the pleadings however, mooting this alternative request. As
such, the court did not abuse its discretion by not holding an evidentiary
hearing.

CONCLUSION

¶14 For the reasons stated above, we affirm.

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

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