State v. Burke

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

NATALIE SIMONE BURKE, Appellant.

No. 1 CA-CR 23-0351
FILED 06-25-2024

Appeal from the Superior Court in Maricopa County
No. CR2003-015998-002
The Honorable David W. Garbarino, Judge

AFFIRMED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Bradley F. Perry
Counsel for Appellee

DiMaggio Law Office, PLLC, Phoenix
By Kaitlin DiMaggio
Counsel for Appellant

OPINION

Presiding Judge Angela K. Paton delivered the opinion of the Court, in
which Judge Michael S. Catlett and Judge Andrew M. Jacobs joined.

STATE v. BURKE
Opinion of the Court

P A T O N, Judge:

¶1 The superior court granted Natalie Simone Burke’s petition to
expunge her drug paraphernalia offense records and seal the arrest,
charging, and court records pertaining to that offense, but denied her
request to seal the remaining unexpunged offense records within the same
criminal case. She appealed, and contends that Arizona Revised Statutes
(“A.R.S.”) Section 36-2862(C)(1)(e) requires the court to seal the entire case
record—including unexpunged offense records—when the case includes at
least one expunged offense. We conclude that it does not and affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In 2004, a jury convicted Burke of possession of marijuana for
sale, a class 2 felony (count 1); conspiracy to commit sale or transportation
of marijuana, a class 2 felony (count 2); possession of drug paraphernalia, a
class 6 felony (count 3); and first-degree money laundering, a class 2 felony
(count 4). The superior court sentenced her to a term of probation, which
she completed and was discharged from in 2012.

¶3 In 2020, Arizona voters adopted Proposition 207, known as
the Smart and Safe Arizona Act, which authorizes courts to expunge certain
marijuana-related offense records. See A.R.S. § 36-2862. Under Section 36-
2862, an individual may seek expungement of the record of a prior arrest,
charge, adjudication, conviction, or sentence involving a qualifying
marijuana offense. See A.R.S. § 36-2862(A). If the court grants expungement
of an eligible offense, the court’s order shall “[r]equire the clerk of the court
to seal all records relating to the expunged arrest, charge, adjudication,
conviction or sentence and allow the records to be accessed only by the
individual whose record was expunged or the individual’s attorney.”
A.R.S. § 36-2862(C)(1)(e).

¶4 In 2021, the Arizona Supreme Court enacted Arizona Rule of
Criminal Procedure (“Rule”) 36 to provide additional guidelines for
expungement. The Rule states: “If the court grants the [expungement]
petition, the court must, as to any applicable count, vacate the conviction and
sentence, if any, [and] order that any record of the arrest, charge, conviction
and sentence be expunged . . . .” Ariz. R. Crim. P. 36(d)(4) (emphasis
added).

¶5 Our supreme court also issued an administrative order to
establish “standardized procedures . . . to implement the expungement
process” pursuant to Rule 36 and Section 36-2862. See Ariz. Sup. Ct. Admin.

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STATE v. BURKE
Opinion of the Court

Order No. 2021-82 (May 26, 2021). The Administrative Order requires all
Arizona courts to comply with certain procedures after granting
expungement, including:

2. Seal the entire case file if the charges being expunged
constitute the entirety of the complaint, information, or
indictment, including the petition to expunge and related
responses, motions, and orders, and allow the records to be
accessed only by the person whose record was expunged or
the person’s attorney.

3. Seal all records contained within the case file relating to the
expunged arrest, charge, adjudication, conviction, and
sentence, including the petition to expunge and related
responses, motions, and orders as to the applicable counts if
the charges being expunged constitute less than the entirety
of the complaint, information, or indictment. Upon receipt of
a public records request, the court must withhold case records
related solely to the expunged charges, redact references to
the expunged portions of the case file, and allow public access
to the records containing information concerning the charges
that were not expunged in the case file.

...

6. Comply with Rule 123(c)(2)(C), Rules of the Supreme
Court, by ensuring that all sealed information related to the
expunged charge is redacted from any record provided in
response to a public record request.

Id.

¶6 In April 2023, Burke petitioned to expunge her drug
paraphernalia conviction (count 3) pursuant to Section 36-2862(A)(3).
Count 3 was eligible for expungement because Burke was convicted of
“[p]ossessing, using or transporting paraphernalia relating to the
cultivation, manufacture, processing or consumption of marijuana.” A.R.S.
§ 36-2862(A)(3).

¶7 Burke acknowledged in her petition that her only
expungement-eligible offense was the drug paraphernalia conviction, but
also requested that her possession, conspiracy, and money laundering
convictions be sealed and made available only to Burke or her attorney. She
asserted “[t]he request for expungement . . . if granted, provides the basis

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STATE v. BURKE
Opinion of the Court

to seal counts one, two, and four of this case.” The State agreed that the
drug paraphernalia conviction was expungement-eligible but asserted: “To
the extent that any records contain information about other charges, records
related to the arrest, charge, conviction, adjudication or sentence of charges
outside the purview of A.R.S. § 36-2862 they should not be expunged.”

¶8 The court heard argument regarding Burke’s expungement
petition and request to seal the records for not only her expungement-
eligible drug paraphernalia conviction, but also for her non-expungement
eligible possession, conspiracy, and money laundering convictions. The
court expressed concern about sealing the entire matter when only one
conviction was eligible for expungement and asked whether Burke’s
petition should be treated as a combined petition to expunge and petition
to seal, in which case the court would consult the sealing statute, Section
13-911. The court noted that in previous cases containing both expunged
and unexpunged offenses, it ordered the clerk of court to redact information
related to the expunged offenses, leaving the unexpunged, unsealed
offenses publicly available. Burke asserted that the Section 13-911 sealing
statute was not a part of her petition, and that under Section 36-2862, once
an expungement is granted, all records related to the expunged offense are
sealed—including non-expungement eligible offenses that are part of the
same criminal case. She also argued the statute requires more than
redaction of the expunged portion. The State did not “have a detailed
answer for [the court]” at the time, adding that it also understood Section
36-2862 to require the entire case record to be sealed but the other
convictions would still exist and be eligible for sentencing enhancement.

¶9 The superior court found that no legal authority supported
sealing the entire case. It ruled that “[e]xpungement is charge specific,” and
under Section 36-2862(C)(1)(e), “only records that relate to the expunged
charge are to be sealed.” It also concluded that “Section 36-2862(C)(1)(e)
does not authorize either expressly or impliedly the Court to order sealing
of documents related to charges that are not expunged,” and thus,
“[c]harges that are not subject to expungement continue to exist and the
public should have access to the court records related to those charges
absent an order upon a proper petition to seal based on A.R.S. § 13-911.”
The court granted expungement of the arrest records, charging documents,
and all court records “pertaining only to Count 3” (the drug paraphernalia
conviction), but denied Burke’s request to seal the case records relating to
the unexpunged convictions. (Emphasis in original.)

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STATE v. BURKE
Opinion of the Court

¶10 Burke timely appealed, and we have jurisdiction under
Article 6, Section 9 of the Arizona Constitution, and Sections 12-
120.21(A)(1), 13-4031, 13-4033(A)(3), and 36-2862(F).

DISCUSSION

¶11 Burke argues the superior court abused its discretion by
denying her request to seal the entire case file, including the records for her
possession, conspiracy, and money laundering convictions, after
expunging her drug paraphernalia offense under Section 36-2862.
Specifically, she argues the term “seal” in Section 36-2862(C)(1)(e) applies
to all unexpunged offenses if those offenses are “related to” an expunged
offense in the same criminal case, and because all four of her convictions
are within the same criminal case, the three unexpunged convictions are
“related to” the one expunged conviction.

¶12 Both parties acknowledge that the State agreed with Burke’s
interpretation of the statute during the superior court proceedings. On
appeal, Burke does not raise waiver or respond to the State’s judicial
estoppel arguments. Even if she had, we are not bound by the parties’
agreements or concessions when interpreting a statute. See Mora v. Phoenix
Indem. Ins. Co., 196 Ariz. 315, 318, ¶ 14 n.3 (App. 1999). We review the
superior court’s ruling on an expungement petition for an abuse of
discretion but “‘review the interpretation of statutes and court rules de
novo.’” State v. Ibarra, 254 Ariz. 320, 323, ¶ 5 (App. 2022) (quoting Cranmer
v. State, 204 Ariz. 299, 301, ¶ 8 (App. 2003)).

¶13 This court recently examined whether the words “relating to”
in Section 36-2862(A)(3) should be read broadly to allow the expungement
of a drug paraphernalia conviction if the conviction involves any marijuana
paraphernalia plus some other illegal substance. See State v. Cisneros, 255
Ariz. 564, 566–68, ¶¶ 10–17 (App. 2023). To determine the meaning of the
phrase “relating to,” we looked to our supreme court’s decision in Saban
Rent-a-Car LLC v. Ariz. Dep’t of Revenue, 246 Ariz. 89 (2019). In Saban, the
supreme court concluded that the phrase “relating to” is subject to
“unlimited reach if construed too broadly,” and, therefore, must be read “in
conjunction with the history and purpose” of the text. Id. at 95–96, ¶ 22.
We applied this reasoning to Cisneros and held:

Given the voters’ limited intent to legalize possession and use
of marijuana and related paraphernalia, and to provide for
expungement of such offenses only, we reject Cisneros’s
argument that the absence of the word ‘only’ from the phrase

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STATE v. BURKE
Opinion of the Court

‘relating to’ requires us to read it more expansively. Cf.
Roberts v. State, 253 Ariz. 259, 266, ¶ 20 (2022) (“court will not
inflate, expand, stretch or extend a statute to matters not
falling within its expressed provisions” (quoting City of
Phoenix v. Donofrio, 99 Ariz. 130, 133 (1965))).

Cisneros, 255 Ariz. at 567, ¶ 16.

¶14 We face a similar interpretive question here—that is, when a
criminal matter involves at least one expungement-eligible offense,
whether the court must also seal unexpunged offenses that are part of the
criminal case because they “relat[e] to” the same criminal matter. See A.R.S.
§ 36-2862(C)(1)(e). Burke asserts the answer to that question is yes,
contending that multiple offenses within a single criminal case establish a
“connection” between all offenses, such that unexpunged convictions are
“related to” an expunged conviction, requiring the entire criminal case
record to be sealed when expungement is granted for one eligible offense.

¶15 Our primary goal in interpreting Section 36-2862(C)(1)(e) “is
to effectuate the electorate’s intent in adopting it.” See Saban Rent-a-Car LLC,
246 Ariz. at 95, ¶ 21 (citing Jett v. City of Tucson, 180 Ariz. 115, 119 (1994)).
“If we can discern the provision’s meaning from its language alone, we will
apply it without further analysis.” Id. (citing Jett, 180 Ariz. at 119).

¶16 We disagree with Burke’s broad reading of Section 36-
2862(C)(1)(e). The statute requires the court to order the clerk of court to
“seal all records relating to the expunged arrest, charge, adjudication,
conviction or sentence[.]” A.R.S. § 36-2862(C)(1)(e) (emphasis added). The
text applies the term “seal” only to the expunged portion of a defendant’s
criminal record. Here, the court only expunged the drug paraphernalia
conviction from Burke’s criminal record. Thus, the statute requires that
only records relating to the expunged offense—here, the drug
paraphernalia offense—be sealed; the statute does not automatically
require sealing of unexpunged offenses within the same criminal case
record.

¶17 Further, the text of Proposition 207 does not support the
notion that the voters intended the phrase “relating to” to mean the
expungement statute requires sealing other unexpunged offenses because
they exist in the same criminal case. Sections 36-2850 to 36-2865
decriminalized certain marijuana-related offenses, only making some
offenses eligible for expungement. See Ibarra, 254 Ariz. at 323, ¶ 6 (citing
A.R.S. §§ 36-2850 to 36-2865). The offenses that may be expunged are

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STATE v. BURKE
Opinion of the Court

limited, and include those involving possession, consumption, or
transportation of two and one-half ounces or less of marijuana; possession,
transportation, cultivation, or processing of not more than six marijuana
plants at the individual’s residence for personal use; and possession, use,
or transportation of drug paraphernalia related to the cultivation,
manufacture, processing, or consumption of marijuana. A.R.S. § 36-
2862(A)(1)–(3). Sealing the entire criminal case record—including
unexpunged offenses—would expand the statute’s protections beyond the
text, structure, and purpose of Proposition 207 by shielding other offenses
not included in the statute’s narrowly-constructed definition of legal
marijuana use. See A.R.S. § 36-2853(A).

¶18 The superior court gave the following helpful hypothetical: If
before the enactment of the expungement statute, an individual was
arrested for armed robbery, and in the course of that arrest was also found
to be in possession of marijuana and thus charged with both marijuana
possession and armed robbery, it cannot be the case that because the two
convictions exist under the same case number, all records related to the
armed robbery would be sealed if the possession conviction is expunged.
“[W]e interpret and apply statutory language in a way that will avoid an
untenable or irrational result.” State v. Estrada, 201 Ariz. 247, 251, ¶ 16
(2001). Applying Burke’s interpretation would require us to read the
statute in a way that would result in non-marijuana specific records being
sealed or withhold access to criminal records that would otherwise be
public—essentially rendering other statutes meaningless. See State v.
Thompson, 204 Ariz. 471, 475, ¶ 10 (2003).

¶19 Our supreme court’s guidance in Administrative Order 2021-
82 confirms our interpretation of Section 36-2862(C)(1)(e). Our supreme
court has “administrative supervision over all the courts of the state,” and
the “[p]ower to make rules relative to all procedural matters in any court.”
Ariz. Const. art. 6, §§ 3, 5. Pursuant to that power, the supreme court
ordered that Arizona courts “must withhold case records related solely to the
expunged charges, redact references to the expunged portions of the case file, and
allow public access to the records containing information concerning the charges
that were not expunged in the case file.” Ariz. Sup. Ct. Admin. Order No. 2021-
82 (emphasis added). The supreme court ordered courts to only “[s]eal the
entire case file if the charges being expunged constitute the entirety of the
complaint, information, or indictment . . . .” Id. And in Rule 36, which
governs petitions to expunge records, the supreme court ordered
expungement of all records related to the “applicable count,” meaning the
count eligible for expungement. Ariz. R. Crim. P. 36(d)(4). The
Administrative Order and Rule 36 direct the courts to redact references to

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STATE v. BURKE
Opinion of the Court

the expunged portions—i.e., the applicable counts—and otherwise allow
public access to records concerning the unexpunged offenses. See Ariz.
Sup. Ct. Admin. Order No. 2021-82; Ariz. R. Crim. P. 36.

¶20 Finally, Burke’s interpretation of Section 36-2862(C)(1)(e)
conflicts with the right of access to judicial records in Arizona Supreme
Court Rule 123. Our supreme court has recognized that the public has a
“significant interest in access to information regarding the courts,” and
given the importance of public access, there is a “presumption that court
records be open and available to the public.” London v. Broderick, 206 Ariz.
490, 492, ¶ 8 (2003).

¶21 Rule 123, adopted by our supreme court in 1997, recognizes
that “[h]istorically, [Arizona] has always favored open government and an
informed citizenry.” Ariz. R. Sup. Ct. 123(c)(1). Thus, court records “are
presumed to be open to any member of the public for inspection or to obtain
copies[.]” Id. But public access to court records may be restricted because
of “countervailing interests of confidentiality, privacy or the best interests
of the state” or “in accordance with . . . other provisions of law.” Id.

¶22 When it comes to adult criminal records, Rule 123 restricts
access to the following records: “Criminal History Records, diagnostic
evaluations, psychiatric and psychological reports, medical reports, alcohol
screening and treatment reports, social studies, probation supervision
histories” and court work product. Ariz. R. Sup. Ct. 123(d)(2)(A).
“Criminal History Record Information” includes “only those records of
arrests, convictions, sentences, dismissals and other dispositions of
charges” provided by crime information centers or criminal justice
agencies. Ariz. R. Sup. Ct. 123(b)(6). Otherwise, “[a]ll other information in
the adult criminal case files maintained by the clerk of the court is open to
the public[.]” Ariz. R. Sup. Ct. 123(d)(2)(C).

¶23 The expungement statute provides that an individual who
was involved in court proceedings for certain marijuana offenses “may
petition the court to have the record of that arrest, charge, adjudication,
conviction or sentence expunged[.]” A.R.S. § 36-2862(A) (emphasis added).
“That” means “the person, thing, or idea indicated, mentioned, or
understood from the situation[.]” Merriam-Webster’s Dictionary,
https://www.merriam-webster.com/dictionary/that (last visited June 21,
2024). Here, the “thing” indicated in Section 36-2862(A) is an arrest, charge,
adjudication, conviction, or sentence stemming from one of the marijuana
offenses listed in the statute. The statute does not say that non-marijuana
offenses occurring at the same time as marijuana offenses are eligible for

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STATE v. BURKE
Opinion of the Court

expungement. Thus, Section 36-2862 is not a “provision[] of law” restricting
public access to non-marijuana offenses. See Ariz. R. Sup. Ct. 123(c)(1).

¶24 Yet Burke asks us to interpret Section 36-2862(C)(1)(e) in a
way that would restrict public access to case documents reflecting non-
marijuana offenses. She does not attempt to rebut any presumption that
case documents reflecting non-marijuana offenses remain open for
inspection and copying. Nor does she argue that such case documents fall
within an exception to the right to public access. And she does not claim
that such documents fall within those categories of documents restricted
under Rule 123(d)(2)(A). Accordingly, adopting Burke’s interpretation and
sealing documents reflecting non-marijuana offenses would conflict with
Rule 123’s right of access to judicial records.

¶25 In sum, the statutory language the Arizona electorate adopted
does not support sealing unexpunged offenses within the same criminal
case as an expunged offense merely because the unexpunged offenses
occurred in the same criminal case as an expunged offense. The superior
court correctly concluded that Section 36-2862(C)(1)(e) does not authorize
the court to order sealing of records related to unexpunged offenses. We
therefore reject Burke’s broad reading of the statute and hold that the
phrase “relating to” does not mean that unexpunged offenses are eligible
for sealing under Section 36-2862(C)(1)(e).

CONCLUSION

¶26 We affirm.

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

9