State of Arizona v. Damrrion Jacquis Matthews

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA,
Appellant,

v.

DAMRRION JACQUIS MATTHEWS,
Appellee.

No. 2 CA-CR 2024-0106
Filed January 9, 2026

Appeal from the Superior Court in Maricopa County
No. CR2018005433001
The Honorable Justin Beresky, Judge

REVERSED

COUNSEL

Rachel H. Mitchell, Maricopa County Attorney
By Quinton S. Gregory, Deputy County Attorney, Phoenix
Counsel for Appellant

Steve Koestner, Maricopa County Legal Advocate
By Daniel Fenzel, Deputy Legal Advocate, Phoenix
Counsel for Appellee
 STATE v. MATTHEWS
Opinion of the Court

OPINION

Judge Gard authored the opinion of the Court, in which Presiding Judge
Vásquez and Judge Kelly concurred.

G A R D, Judge:

¶1 The State of Arizona appeals from the superior court’s order
expunging records of Damrrion Matthews’s conviction and sentence for
sale or transportation of marijuana. Because the undisputed record
establishes that Matthews sold marijuana, he is not eligible for
expungement. We therefore reverse.

Factual and Procedural Background

¶2 In 2018, the Maricopa County Grand Jurors indicted
Matthews for one count of sale or transportation of marijuana, a Class 3
felony, in violation of A.R.S. § 13-3405(A)(4). He subsequently pleaded
guilty as charged. To establish the factual basis for his plea, Matthews
agreed “that on February 8th of 2018 [he] or somebody else had some
marijuana,” weighing less than two pounds, “that [he] would have sold to
somebody if they wanted to buy it.” The superior court suspended the
imposition of sentence and placed Matthews on probation for three years.
The court, however, subsequently revoked Matthews’s probation and
sentenced him to 3.5 years’ imprisonment.

¶3 In 2020, Arizona voters passed the Smart and Safe Arizona
Act (“the Act”), which decriminalized the possession and use of marijuana
in certain circumstances and authorized courts to expunge court and
law-enforcement records of arrests, charges, adjudications, or convictions
for qualifying marijuana offenses. A.R.S. §§ 36-2850 to 36-2865; see Text of
Proposed Amendment § 7(7), Proposition 207 (“Smart and Safe Arizona
Act”), 2019 Ballot Propositions. In 2023, Matthews filed a petition under
the Act seeking to expunge any records of his offense of “[p]ossessing,
consuming, or transporting two and one-half (2 ½) ounces or less of
marijuana.”

¶4 In a memorandum accompanying his petition, Matthews
described his conviction as having involved a “controlled purchase” of
marijuana, during which he sold 3.5 grams of the drug to an undercover
officer in exchange for twenty dollars. He attached a police report

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Opinion of the Court

documenting the sale and the quantity of marijuana involved. Citing a
then-recent decision from this court, State v. Sorensen, 255 Ariz. 316
(App. 2023), he asserted that the Act authorized courts to expunge records
associated with sale-related marijuana offenses. The state opposed the
request, distinguishing Sorensen on the ground that it had not involved a
marijuana sale and interpreting its holding to mean only that a petitioner is
not precluded from expungement merely because he possessed marijuana
with the intent to sell it.

¶5 After a hearing, the superior court granted Matthews’s
expungement petition. The court concluded as a legal matter that Sorensen
had “expanded the scope of marijuana related set asides” to include
sale-related offenses. Relying on Sorensen’s reasoning, the court rejected the
state’s argument “that there is a meaningful distinction between
sale-related marijuana offenses and actual sale of marijuana” and appeared
to conclude that the Act allows the expungement of records involving
completed marijuana sales.

¶6 In an alternative determination, the superior court found that,
“[e]ven if expungement is only available for possession with intent to sell
offenses rather than actual sale,” the state had not met its burden of proving
by clear-and-convincing evidence that Matthews was not eligible for
expungement. See § 36-2862(B)(3). The court reasoned that “the record is
less than clear” whether Matthews had pleaded guilty “to a sale charge or
a possession for sale charge.” The court noted that the plea agreement
referred to the charge as “sale or transportation of marijuana” and the
sentencing minute entry used a similar construction. It thus determined
that the failure to distinguish between sale and transportation in these
documents weighed “against the State’s position that there is a meaningful
distinction” between the two types of conduct. The court further found that
if there is a meaningful distinction, the record’s “ambiguity likely weighs
in favor of” Matthews because the state had not established that he “was
explicitly sentenced for the sale of marijuana.” The state appealed the
order, and we have jurisdiction under article VI, § 9 of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4032(4).

Discussion

¶7 The state argues that the superior court erred in granting
Matthews’s expungement petition by limiting its inquiry to the plea and
sentencing record while overlooking the expanded expungement record
and Matthews’s admission in his petition that he had sold marijuana. In
response, Matthews asks us to defer to the court’s finding that it is “less

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Opinion of the Court

than clear” whether he pleaded guilty to selling marijuana or to a
possession-for-sale offense and suggests that this ambiguity prevents the
state from carrying its burden of proving him ineligible for expungement.

¶8 We review a superior court’s order granting a petition to
expunge for an abuse of discretion. See State v. Cisneros, 255 Ariz. 564, ¶ 8
(App. 2023). In so doing, “[w]e defer to the trial court’s factual findings that
are supported by the record and not clearly erroneous.” See State v.
MacHardy, 254 Ariz. 231, ¶ 17 (App. 2022). “An error of law constitutes an
abuse of discretion . . . .” Shinn v. Ariz. Bd. of Exec. Clemency, 254 Ariz. 255,
¶ 13 (2022) (quoting State v. Bernstein, 237 Ariz. 226, ¶ 9 (2015)). So does “an
order unsupported by the record.” Id.

¶9 Section 36-2862(A)(1), “in plain and precise terms,”
“identifies the expungement eligible offenses,” which include, as relevant
here, “the possession, consumption, and transportation of two and one-half
ounces or less of marijuana.” State v. Bouhdida, 258 Ariz. 542, ¶ 9 (App.
2024). The statutory “list is not illustrative, but exhaustive.” Id.; see State v.
Santillanes (Santillanes II), 256 Ariz. 534, ¶ 29 (2024) (observing that the Act
authorizes expungement for “only certain marijuana offenses—those
expressly specified in § 36-2862(A)(1)−(3)”). A court must grant a petition
to expunge “unless the prosecuting agency establishes by clear and
convincing evidence that the petitioner is not eligible for expungement.”
§ 36-2862(B)(3). A court may also independently find that an offense is not
expungable. See Ariz. R. Crim. P. 36(d)(3); Cisneros, 255 Ariz. 564, ¶ 18.

¶10 In deciding whether a marijuana-related offense is eligible for
expungement, a court is not limited to the elements of the offense of which
the petitioner was convicted or to the factual basis for his plea. See State v.
Santillanes (Santillanes I), 254 Ariz. 301, ¶¶ 31, 33 (App. 2022), vacated in part
on other grounds by Santillanes II, 256 Ariz. 534, ¶ 39. Rather, because
§ 36-2862(A) refers to general categories of conduct that may not align
precisely with enumerated criminal offenses, “the superior court’s inquiry
into a petitioner’s arrest, charge, conviction, or sentence may extend beyond
the elements of the underlying offense.” Santillanes I, 254 Ariz. 301,
¶¶ 31-33. Accordingly, a court may consider “any admissible evidence” as
part of its inquiry, id. ¶ 33, including police reports, charging documents,
grand jury transcripts, and presentence reports, State v. Simental, 259 Ariz.
153, ¶¶ 2, 7 (App. 2025). An expanded record is particularly important
where the trial or plea record is silent on information critical to determining
whether the statutory requirements for expungement are met. See id. ¶¶ 7-8
(where plea and charging documents did not specify amount of marijuana

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Opinion of the Court

involved in offense, trial court appropriately reviewed grand jury
transcripts to determine whether amount exceeded limit under
expungement statute); Santillanes I, 254 Ariz. 301, ¶ 33 (recognizing need
for expanded record “[e]specially where, as here, the petitioner’s plea
agreement and factual basis are silent as to the amount of marijuana
involved in the underlying offense”).

¶11 Here, the superior court’s reliance on Sorensen to conclude
that records of an offense involving the sale of marijuana are expungable
does not survive our decision in Bouhdida. In Sorensen, this court considered
whether § 36-2862(A)(1) allows for “sale-related marijuana offenses” to be
expunged. Sorensen, 255 Ariz. 316, ¶¶ 1-2. We construed the verb “to
possess,” as used in the statute, not to “encompass[] a person’s intent or
purpose in possessing an item.” Id. ¶ 9. We further observed that
§ 36-2862(A)(1) omits any kind of personal-use restriction and enumerates
as a qualifying offense transportation of marijuana, which “require[s] proof
of a for-sale element” under § 13-3405(A)(4). Sorensen, 255 Ariz. 316,
¶¶ 10-11; see State v. Chabolla-Hinojosa, 192 Ariz. 360, n.2 (App. 1998)
(recognizing repeal of transportation of marijuana as a criminal offense and
replacement with transportation for sale). Based on the foregoing, we held
that § 36-2862(A)(1) “authorizes expungement of sale-related marijuana
offenses when they otherwise satisfy the statute’s eligibility requirements.”
Sorensen, 255 Ariz. 316, ¶ 12.

¶12 Since the superior court’s ruling, however, we have clarified
Sorensen. In Bouhdida, the petitioner cited Sorensen to argue—consistent
with the superior court’s reasoning here—that by permitting transportation
offenses to be expunged the Act also implicitly allows expungement of
records of completed marijuana sales. Bouhdida, 258 Ariz. 542, ¶¶ 10-12.
We rejected that argument, observing that “Sorensen did not expand the
scope of expungement eligible offenses beyond those clearly listed in the
statute” and that the statutory list does not include the sale of marijuana.
Id. ¶¶ 13, 17. We clarified that “Sorensen holds that the offenses expressly
enumerated within the statute—specifically, possessing and transporting
marijuana—are not ineligible for expungement based on a defendant’s
intent to sell.” Id. ¶ 13. Ultimately, we held that a conviction for selling
marijuana is not expungable. Id. ¶¶ 1, 17. Matthews does not distinguish
Bouhdida or otherwise challenge its applicability to this case, and we apply

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Opinion of the Court

it here.1 Accordingly, under Bouhdida, Matthews is ineligible for
expungement if he actually sold marijuana.

¶13 The superior court, however, determined that the state had
not proved by clear-and-convincing evidence that Matthews’s conviction
was for selling marijuana. As set forth above, the court found that the
record was ambiguous “whether [Matthews had] plead[ed] guilty to a sale
charge or a possession for sale charge” and that this ambiguity weighed in
favor of Matthews because the state had not proved that he was “explicitly
sentenced” for a marijuana sale. The state contends that, in reaching this
conclusion, the court inappropriately limited its review to the plea and
sentencing documents and overlooked the undisputed facts underlying the
offense as set forth in the expanded record.

¶14 As a preliminary matter, the superior court appeared to refer
to transportation of marijuana and possession of marijuana for sale
interchangeably at points in its minute entry, including in its finding that
“the record is less than clear when identifying whether [Matthews]
plead[ed] guilty to a sale charge or a possession for sale charge,” which it
immediately followed by discussing the parties’ failure to distinguish
between transportation and sale in the plea agreement. In addition, in its
formal order vacating Matthews’s conviction and expunging all associated
records, the court repeatedly identified the offense of conviction as
possession or use of marijuana under § 13-3405(A)(1).

¶15 To the extent the superior court found that the record is
ambiguous about whether Matthews pleaded guilty to simple possession
under § 13-3405(A)(1), possession for sale under § 13-3405(A)(2), or sale or
transportation under § 13-3405(A)(4), that finding is clearly erroneous.
See MacHardy, 254 Ariz. 231, ¶ 17. Setting aside any potential defect in the
factual basis given at the change-of-plea hearing, which we address below,
the written plea agreement, the minute entry pronouncing judgment and
suspending the imposition of sentence in favor of a probationary term, and
the subsequent minute entry revoking probation and sentencing Matthews
to prison reflect that he pleaded guilty to and was sentenced for sale or

1We stayed briefing in this matter for several months pending
Bouhdida’s issuance, and again while a petition for review of that decision
was pending before our supreme court. That court denied review in May
2025. Both parties had the opportunity to address Bouhdida in their
subsequently filed briefs.

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Opinion of the Court

transportation of marijuana under § 13-3405(A)(4), not a possession offense
under § 13-3405(A)(1) or (2).

¶16 If ambiguity exists in the record, it lies only in whether
Matthews pleaded guilty to transporting marijuana or selling it. See Simental,
259 Ariz. 153, ¶¶ 7-8; Santillanes I, 254 Ariz. 301, ¶ 33. We agree with the
state, however, that the superior court erred by overlooking undisputed
evidence in the expanded expungement record that resolved any such
ambiguity and by concluding that the state had not proved Matthews’s
ineligibility for expungement merely because he had not “explicitly” been
sentenced for sale of marijuana.

¶17 To be sure, Matthews pleaded guilty to sale “or”
transportation of marijuana, and the plea agreement does not designate the
type of conduct in which he engaged. See § 13-3405(A)(4) (“[A] person shall
not knowingly . . . [t]ransport for sale, import into this state or offer to
transport for sale or import into this state, sell, transfer or offer to sell or
transfer marijuana.”). The sentencing documents likewise refer to sale
“and/or” transportation and do not distinguish between the two. Nor does
the factual basis given at the change-of-plea hearing elucidate whether
Matthews admitted to transporting marijuana or to selling it.

¶18 Under these circumstances, the superior court should have
looked to the expanded record to understand the facts underlying
Matthews’s conviction. See Simental, 259 Ariz. 153, ¶¶ 7-8; Santillanes I,
254 Ariz. 301, ¶ 33. That record—which is undisputed and which was, in
fact, supplied by Matthews himself—resolves any ambiguity by
establishing that he sold marijuana to an undercover officer.2 Matthews
provided police reports establishing that a sale had occurred, and he
admitted this fact in his expungement petition. The court appears to have
overlooked this uncontested evidence, instead concluding, despite
Matthews’s admission, that the mere existence of ambiguity in the plea and

2Matthews maintains that he disputed below that a completed sale

had occurred, pointing to his reply to the state’s response to the
expungement petition. But his argument in the reply asserted only that he
did not admit to a completed sale as part of the factual basis at the
change-of-plea hearing. At no point, including in his answering brief on
appeal, has Matthews contested that, as a factual matter, he sold marijuana
to an undercover officer.

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Opinion of the Court

sentencing documents favored Matthews and rendered the state unable to
carry its burden of proving that the offense involved a marijuana sale.

¶19 To defend the superior court’s ruling, Matthews relies
primarily on the factual basis given at the change-of-plea hearing, arguing
that it does not align with either the charge or the police report and that he
instead admitted only to possessing marijuana for sale.3 See § 13-3405(A)(2).
The relevance of this discrepancy to the expungement analysis is unclear,
particularly in light of our directive in Santillanes I that courts look toward
the record as a whole to determine whether a petitioner is eligible for
expungement. And even assuming the factual basis to which Matthews
agreed in pleading guilty was defective—a question that is not before us
and that we do not decide—“[i]t is well established in this state that a judge
is not limited to a defendant’s statement at the plea hearing in ascertaining
a factual basis for a guilty plea.” State v. Salinas, 181 Ariz. 104, 107 (1994)
(quoting State v. Brooks, 120 Ariz. 458, 461 (1978)). A court may instead
consider all evidence before it, including police and presentence reports, to
determine whether a factual basis exists. Id.; see also Simental, 259 Ariz. 153,
¶ 7. Here, as we have explained, the undisputed evidence resolves any
deficiency in the plea colloquy and establishes that Matthews actually sold
marijuana.

¶20 For these reasons, the record does not support the superior
court’s conclusion that Matthews was eligible for expungement. See Shinn,
254 Ariz. 255, ¶ 13. To the contrary, the undisputed evidence establishes
that his conviction for sale or transportation of marijuana flowed from a
marijuana sale, rendering him ineligible for expungement. Bouhdida,
258 Ariz. 542, ¶¶ 10-12, 17.

Disposition

¶21 For the foregoing reasons, we reverse the superior court’s
order granting Matthews’s petition for expungement.

3Matthews also suggests that the superior court in fact considered

the entire record, highlighting its summary of items it had reviewed.
Although the court listed the expungement filings in its recitation of items
it had considered, it did not discuss—or even acknowledge—the content of
those documents, instead ruling based on what the plea and sentencing
record failed to “explicitly” communicate.

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