State v. Rhone

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THOMAS WILLIAM RHONE, Appellant.

No. 1 CA-CR 24-0136
FILED 11-14-2024

Appeal from the Superior Court in Maricopa County
No. CR2008-008074-001
The Honorable Justin Beresky, Judge

AFFIRMED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Quinton S. Gregory
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Kristen Reller
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

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

H O W E, Judge:

¶1 Thomas Rhone appeals the superior court’s denial of his
petition to expunge a past marijuana offense under A.R.S. § 36-2862. For the
following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 In 2007, officers searched a two-bedroom apartment Rhone
shared with a roommate. Upon finding photographs and a receipt with his
name, they determined one of the bedrooms belonged to Rhone. In Rhone’s
room they found a safe, which contained over six ounces of marijuana. They
also found lesser amounts of marijuana in other areas of the apartment.

¶3 In 2008, Rhone pled guilty to one count of possession of
marijuana. Rhone pled to a class six felony under A.R.S. § 13-3405, which
specifies that a person possessing marijuana with a “weight of less than two
pounds is guilty of a class 6 felony,” but the plea did not specify an amount.
The complaint and information listed the amount as less than two pounds.
The superior court suspended the imposition of sentence and placed Rhone
on a twelve-month probation term.

¶4 In 2023, Rhone petitioned for expungement under A.R.S. § 36-
2862. The State opposed the petition, arguing the offense was not eligible
for expungement because the amount exceeded the statutory threshold.
The court held an evidentiary hearing and denied Rhone’s petition, stating
that the offense was not eligible for expungement as it “exceeded the
maximum allowable amount set forth in A.R.S § 36-2862.” Rhone appealed.
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 Rhone argues the superior court abused its discretion in
finding him ineligible for expungement because it (1) applied the wrong

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standard of proof, and (2) made insufficient findings of fact in violation of
A.R.S. § 36-2862(B)(4).

¶6 An individual may petition the superior court to have the
record of an offense expunged if they pled to “[p]ossessing, consuming or
transporting two and one-half ounces or less of marijuana.” A.R.S. § 36-
2862(A)(1). The superior court must grant the petition “unless the
prosecuting agency establishes by clear and convincing evidence that the
petitioner is not eligible for expungement.” A.R.S. § 36-2862(B)(3). This
Court reviews the denial of a petition for expungement for an abuse of
discretion. State v. Ibarra, 254 Ariz. 320, 323 ¶ 5 (App. 2022).

¶7 First, Rhone argues that the court erred by conflating the clear
and convincing standard required of the State to prove ineligibility for
expungement with the probable cause standard required for an arrest.
Rhone does not argue that the State presented insufficient evidence for the
court to find his conviction ineligible for expungement. Rather, he argues
that the court applied the wrong standard of proof, committing an error of
law and abuse of discretion. When “the court expressly base[s] its decision
upon [an] error of law,” it may constitute an abuse of discretion. State v.
Hall, 234 Ariz. 374, 377 ¶ 12 (App. 2014).

¶8 At the evidentiary hearing, the court asked several questions
about the implications of an arrest on the expungement eligibility of a
subsequent conviction. But the court did not rule at this time and instead
took the matter under advisement. These questions were just that,
questions during a hearing, and do not replace the court’s ultimate ruling
on the matter. In its ruling, the court cited to a clear and convincing
standard and never stated that it applied a probable cause standard. The
use of the word “arrest” in the court’s ruling is not dispositive to the
standard of proof applied, particularly when the court explicitly stated that
it found clear and convincing evidence. The court did not commit an error
of law, much less “expressly base[] its decision” on any error. Hall, 234 Ariz.
at 377 ¶ 12.

¶9 The court did refer to Rhone’s arrest in its ruling, but the court
properly considered the details of his arrest in its inquiry. Especially when
the “petitioner’s plea agreement and factual basis are silent as to the amount
of marijuana involved in the underlying offense,” the superior court may
extend its inquiry “into a petitioner’s arrest, charge, conviction, or
sentence.” State v. Santillanes, 254 Ariz. 301, 308 ¶ 33 (App. 2022), vacated in
part on other grounds, 256 Ariz. 480 (2024). The superior court may consider
the extended record including police reports, original charging documents,

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and presentence reports to determine a petitioner’s eligibility for
expungement. Id. at 307–08 ¶¶ 26, 33.

¶10 Here, the plea, information, and complaint all showed only
that Rhone possessed less than two pounds of marijuana. Given this lack of
specificity, the court reviewed the extended record to determine the basis
for the plea and its eligibility for expungement. The court reviewed the
State’s amended response to Rhone’s petition, which included a police
report showing that officers seized, weighed, and tested two bags
containing 83.3 and 41.9 grams (2.9 and 1.4 ounces respectively) of
marijuana from a safe in Rhone’s bedroom. The court also considered the
testimony of an officer and a crime lab employee at the evidentiary hearing.
The officer testified that, in a safe in Rhone’s room, they found two large
bags of marijuana. The crime lab employee stated that testing revealed the
two quantities of “green, leafy substance” found in Rhone’s room were 83.3
and 41.9 grams of marijuana, about 6.6 ounces all together. The court
ultimately found the offense not eligible for expungement as it “exceeded
the maximum allowable amount” of two and one-half ounces set forth in
the statute. See A.R.S. § 36-2862. The court relied not only on the fact of
Rhone’s arrest, as he alleges, but on the incident report, supplement, and
crime lab report. The record supports the finding, and the court did not
abuse its discretion.

¶11 Next Rhone argues the court failed to make sufficient findings
of fact. “The court shall issue a signed order or minute entry granting or
denying the petition in which it makes findings of fact and conclusions of
law.” A.R.S. § 36-2862(B)(4); see also Santillanes, 254 Ariz. at 308 ¶ 34
(vacating the superior court’s expungement order for failure to include
sufficient findings of fact and conclusions of law). This Court will vacate an
order if we “cannot determine the factual basis of [the court’s] conclusion
or whether it was legally sound.” Santillanes 254 Ariz. at 308 ¶ 34 (citation
omitted).

¶12 Rhone argues that the court’s “erroneous reliance on probable
cause cut the Court’s analysis short” and it failed to provide sufficient
findings of fact outside Rhone’s arrest to deny his petition. Because the
court did not erroneously apply a probable cause standard and properly
considered Rhone’s arrest in its determination, the court’s finding of fact is
sufficient. Rhone argues that the court failed to “include the ultimate fact
the court relied on in reaching its decision,” but the court found the State
established by clear and convincing evidence that the marijuana in the safe
in Rhone’s bedroom “exceeded the maximum allowable amount set forth
in A.R.S. § 36-2862.” This is sufficient.

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CONCLUSION

¶13 We affirm.

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

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