State of Arizona v. Daniel Louis Santillanes

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,

Appellant,

v.

DANIEL LOUIS SANTILLANES,

Appellee.

No. CR-23-0042-PR
Filed January 23, 2024

Appeal from the Superior Court in Maricopa County
The Honorable Jennifer C. Ryan-Touhill, Judge
No. CR2011-108577-001
REMANDED

Opinion of the Court of Appeals, Division One
522 P.3d 691 (App. 2022)
VACATED IN PART

COUNSEL:

Rachel Mitchell, Maricopa County Attorney, Krista Wood (argued), Deputy
County Attorney, Maricopa County Attorney’s Office, Phoenix, Attorneys
for State of Arizona

Derek Debus (argued), Craig Rosenstein, Kenneth Misajet, Rule 39(c)
Certified Law Student, Stone Rose Law PLLC, Scottsdale, Attorneys for
Daniel Louis Santillanes
 STATE v. SANTILLANES
Opinion of the Court

Sarah L. Mayhew (argued), Tucson City Public Defender’s Office, Tucson,
Attorney for Amicus Curiae Arizona Attorneys for Criminal Justice; and
Julie R. Gunnigle, Law Office of Julie Gunnigle, PLLC, Scottsdale, Attorney
for Amicus Curiae National Organization for the Reform of Marijuana
Laws

JUSTICE KING authored the Opinion of the Court, in which
CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and
JUSTICES BOLICK, LOPEZ, BEENE, and PELANDER (RETIRED) joined. *

JUSTICE KING, Opinion of the Court:

¶1 In 2011, Daniel Santillanes pleaded guilty to one felony count
of facilitation to commit sale or transportation of marijuana. Nine years
later, Arizona voters adopted Proposition 207, known as the Smart and Safe
Arizona Act (the “Act”). The Act authorizes a trial court to expunge an
individual’s records pertaining to certain marijuana-related offenses. See
A.R.S. § 36-2862. After the Act’s effective date, Santillanes filed a petition
seeking the expungement of all records relating to his felony marijuana
conviction and the restoration of his civil rights, including the right to
possess a firearm. The trial court granted his petition.

¶2 The sole issue before us is whether the State has the right to
appeal the trial court’s order granting Santillanes’s request for
expungement and restoration of his civil rights, or whether it may seek
relief only through a petition for special action. We conclude that the State
has the right to appeal this expungement order under A.R.S. § 13-4032(4).

∗
Justice William G. Montgomery has recused himself from this case.
Pursuant to article 6, section 3 of the Arizona Constitution, Justice John
Pelander (Ret.) of the Arizona Supreme Court was designated to sit in this
matter.

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Opinion of the Court

BACKGROUND

¶3 In 2011, the State charged Santillanes with (1) possession of
“four pounds or more” of marijuana for sale, a class 2 felony; (2) possession
or use of “less than two pounds” of marijuana, a class 6 felony; (3)
possession of drug paraphernalia, a class 6 felony; and (4) possession or use
of narcotic drugs (cannabis), a class 4 felony. Santillanes pleaded guilty to
an amended count one: facilitation to commit sale or transportation of
marijuana, a class 6 designated felony (“2011 conviction”). As part of his
guilty plea, the State dismissed counts two, three, and four. At a hearing,
counsel for Santillanes stated the following factual basis for Santillanes’s
guilty plea: “On or about February 17, 2011, Santillanes did provide the
means or opportunity to another to sell or transport marijuana.” The State
indicated that it did not “have anything to add or correct.” The trial court
accepted Santillanes’s guilty plea and placed him on two years’ probation
with a three-month jail term as a condition of probation. The court also
ordered him to complete twenty-four hours of community service,
participate in substance abuse counseling, and pay various fees and fines.
Santillanes subsequently completed the term and conditions of probation.

¶4 The Act permits either an individual, or a “prosecuting
agency . . . on behalf of any individual who was prosecuted by that
prosecuting agency,” to petition the court to have the individual’s records
of certain marijuana-related offenses expunged. § 36-2862(A), (I). The
prosecuting agency may object to the petition and request a hearing.
§ 36-2862(B)(1), (2). The Act instructs that the court “shall grant the
petition unless the prosecuting agency establishes by clear and convincing
evidence that the petitioner is not eligible for expungement.”
§ 36-2862(B)(3).

¶5 In 2021, Santillanes filed a petition requesting that the court
expunge “the record of arrest, charge, adjudication, conviction and
sentence relating to [his 2011] conviction,” citing § 36-2862. In addition,
Santillanes asked the court to “restore all of his civil rights—including the
right to possess a firearm.”

¶6 The State objected to Santillanes’s petition, arguing that the
weight of the marijuana involved in his offense exceeded the 2.5-ounce limit
set forth in § 36-2862(A). See § 36-2862(A)(1) (authorizing the
expungement of certain records of the “arrest, charge, adjudication,

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Opinion of the Court

conviction or sentence” for “[p]ossessing, consuming or transporting two
and one-half ounces or less of marijuana”). The State claimed that “[t]his
case involved over 10 pounds of marijuana” and, citing the original
charging documents, presentence report, and police report, pointed out that
Santillanes was originally “charged with possessing an amount over four
pounds.”

¶7 The trial court granted Santillanes’s petition for expungement
without a hearing. The court also restored Santillanes’s civil rights,
including his right to possess a firearm. The State appealed.

¶8 The court of appeals held that “the State does not have
statutory authority to appeal an order granting expungement but may seek
review via a special action.” State v. Santillanes, 254 Ariz. 301, 304 ¶ 1
(App. 2022). The court reasoned that § 13-4032 “sets forth the exclusive
grounds on which the State may appeal in criminal cases,” but the
subsections upon which the State relied—§ 13-4032(1), (4), and (7)—do not
give the State the right to appeal an expungement order. Id. at 305–06
¶¶ 9–17 (internal quotation marks omitted) (quoting State v. Hansen, 237
Ariz. 61, 64 ¶ 5 (App. 2015)). Further, although § 36-2862 provides “a right
to appeal from orders denying expungement,” it “provides no avenue for a
petitioner, or anyone, to appeal an order granting an expungement.” Id.
at 306 ¶¶ 18–19.

¶9 Nonetheless, the court of appeals exercised its discretion to
review the State’s appeal as a special action. Id. at 306–07 ¶¶ 20–21. The
court determined that the trial court erred by (1) failing to hold a hearing
on Santillanes’s petition, and (2) not making adequate findings of fact and
conclusions of law in the expungement order. Id. at 308–09 ¶¶ 30, 35.
The court of appeals vacated the trial court’s expungement order and
remanded for further proceedings. Id. at 309 ¶ 36.

¶10 The State filed a petition for review on the sole issue of
whether § 13-4032(4) allows it to appeal an order granting a petition for
expungement pursuant to § 36-2862. We granted review because there are
conflicting court of appeals’ decisions on this issue and it is one of statewide
importance. Compare Santillanes, 254 Ariz. at 305–06 ¶¶ 11–15, with State v.
Wanna, 1 CA-CR 21-0438, 2023 WL 2318465, at *2 n.3 (Ariz. App. Mar. 2,
2023) (mem. decision) (“Because the expungement of a conviction affects a
substantial right of the state, we respectfully depart from the holding in

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Opinion of the Court

Santillanes.”). We have jurisdiction pursuant to article 6, section 5(3) of the
Arizona Constitution.

DISCUSSION

¶11 “We review questions of statutory interpretation de novo.”
State v. Jones, 246 Ariz. 452, 454 ¶ 5 (2019) (quoting Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122 ¶ 6 (2015)). Where the language of a statute passed by
voter initiative “is clear and unambiguous, we apply its plain meaning and
the inquiry ends.” Id.

A. Does A.R.S. § 36-2862(F) Preclude The State’s Right To Appeal Under
A.R.S. § 13-4032(4)?

¶12 The court of appeals’ jurisdiction is addressed in article 6,
section 9 of the Arizona Constitution: “The jurisdiction, powers, duties and
composition of any intermediate appellate court shall be as provided by
law.” Section 13-4032 defines the various grounds upon which the state
may appeal in criminal cases. Here, the State argues that it has the right
to appeal Santillanes’s expungement order under § 13-4032(4), which
provides that “[a]n appeal may be taken by the state from . . . [a]n order
made after judgment affecting the substantial rights of the state or a victim.”

¶13 However, Santillanes claims that § 36-2862(F) provides the
exclusive grounds upon which an appeal may lie with respect to petitions
for expungement under the Act. See § 36-2862(F) (“If the court denies a
petition for expungement, the petitioner may file a direct appeal pursuant
to § 13-4033, subsection A, paragraph 3.”).

¶14 We cannot read § 36-2862(F) in isolation. For over 100 years,
the state has had the right to appeal an “order made after judgment
affecting the substantial rights of the state.” See State v. McKelvey, 30 Ariz.
265, 267 (1926) (explaining that this provision existed in Arizona Penal Code
§ 1155(5) (1913)). That right still exists today in § 13-4032(4), which the Act
left entirely undisturbed.

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Opinion of the Court

¶15 In the context of statutory construction, this Court has
emphasized:

[R]epeal of statutes by implication is not favored in the law.
In State ex rel. Larson v. Farley, we held that if it is reasonably
practical, a statute should be explained in conjunction with
other statutes to the end that they may be harmonious and
consistent; and, if statutes relate to the same subject and are
thus in pari materia, they should be construed together with
other related statutes as though they constituted one law.
Unless a statute, from its language or effect, clearly requires
the conclusion that the legislature must have intended it to
supersede or impliedly repeal an earlier statute, courts will
not presume such an intent. Also, when reconciling two or
more statutes, courts should construe and interpret them,
whenever possible, in such a way so as to give effect to all the
statutes involved.

Pima County ex rel City of Tucson v. Maya Constr. Co., 158 Ariz. 151, 155 (1988)
(internal citations omitted) (cleaned up). This is our role regardless of
whether a statute was enacted by voter initiative (like § 36-2862(F)), see Ariz.
Const., art. 4, pt. 1, § 1(2), or by the legislature (like § 13-4032(4)), see Ariz.
Const., art. 4, pt. 1, § 1(1). See Cave Creek Unified Sch. Dist. v. Ducey, 233
Ariz. 1, 4 ¶ 8 (2013) (“The legislature and electorate ‘share lawmaking
power under Arizona’s system of government.’” (quoting Ariz. Early
Childhood Dev. & Health Bd. v. Brewer, 221 Ariz. 467, 469 ¶ 7 (2009))).

¶16 Santillanes’s reading of § 36-2862(F) would effectuate a repeal
by implication of § 13-4032(4) in all expungement cases. But this Court has
repeatedly made clear that “repeals by implication are not favored, and will
not be indulged, if there is any other reasonable construction.” S. Pac. Co.
v. Gila County, 56 Ariz. 499, 502 (1941) (quoting Rowland v. McBride, 35 Ariz.
511, 520 (1929)); see also State v. Rice, 110 Ariz. 210, 213 (1973) (“[O]ur duty
is to harmonize statutes and we ‘will not construe a statute as repealed by
implication’ if we can avoid it.” (quoting State ex rel. Purcell v. Superior Court, 107 Ariz. 224, 227 (1971))); State Land Dep’t v. Tucson Rock & Sand Co., 107
Ariz. 74, 77 (1971) (“It is the rule, one so solidly embedded in American
jurisprudence to be without exception, that a court will not construe a
statute as repealed by implication by another if it can avoid doing so on any
reasonable hypothesis.”). Here, there is no conflict between § 36-2862(F)

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and § 13-4032(4), and there is a reasonable construction that gives effect to
all statutory provisions.

¶17 Section 36-2862(F) states: “If the court denies a petition for
expungement, the petitioner may file a direct appeal . . . .” (Emphasis
added.) The italicized prefatory language provides guidance to
represented and self-represented petitioners alike—whether an individual
or a prosecuting agency filing a petition under § 36-2862(I)—about how to
challenge the denial of a petition for expungement. In such an instance,
“the petitioner may file a direct appeal pursuant to § 13-4033, subsection A,
paragraph 3.” See § 36-2862(F) (citing § 13-4033(A)(3) (“An appeal may be
taken by the defendant only from . . . [a]n order made after judgment
affecting the substantial rights of the party.”)).

¶18 Section 36-2862(F) adds something not previously available
under Arizona law. Individuals who are arrested but never charged are
not a “defendant” with an “order made after judgment” under
§ 13-4033(A)(3), and thus that provision alone does not give such
individuals the right to appeal the denial of an expungement petition.
Section 36-2862(F) now makes clear that all petitioners, including those
arrested but never charged, may appeal such an order. In addition,
because § 36-2862 does not appear in the criminal code, subsection (F)
removes any doubt that the denial of a petition for expungement affects the
substantial rights of a petitioner. See State v. Bowsher, 225 Ariz. 586, 589
¶ 14 (2010) (“When construing two statutes, this Court will read them in
such a way as to harmonize and give effect to all of the provisions
involved.”).

¶19 Further, § 36-2862(F) does not address situations where the
court grants a petition for expungement, nor does it attempt to modify or
eliminate the state’s longstanding right to appeal under § 13-4032(4). If
voters sought to amend or reject § 13-4032(4) in the expungement context,
we would expect that § 36-2862 would refer to § 13-4032(4) or at least
indicate that only a petitioner may file a direct appeal in expungement cases.
Section 36-2862 does not do so. Accordingly, § 36-2862(F) does not “from
its language or effect, clearly require[] the conclusion that the [electorate]
must have intended it to supersede or impliedly repeal” § 13-4032(4). See
Maya Constr. Co., 158 Ariz. at 155. And we “will not presume such an
intent.” See id.

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Opinion of the Court

¶20 Santillanes argues that “where general statutes conflict with
special statutes on the same subject, the special statute controls,” citing the
general/specific canon of construction. That canon applies “[i]f there is a
conflict between a general provision and a specific provision,” in which
case “the specific provision prevails.” Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 183 (2012); see also State v. Jones, 235 Ariz. 501, 503 ¶ 8 (2014) (“When ‘two conflicting statutes cannot operate
contemporaneously, the more recent, specific statute governs over an older,
more general statute.’” (quoting UNUM Life Ins. Co. v. Craig, 200 Ariz. 327,
333 ¶ 29 (2001))). But here, we do not apply the general/specific canon
because, as noted above, there is no conflict in the first place. Section
36-2862(F) explicitly applies to the denial of a petition for expungement.
Section 13-4032(4) continues to apply in cases, as here, where the trial court
grants a petition for expungement.

¶21 Amici contend that § 36-2862(F) excludes the state’s right to
appeal because of the rule that “[i]n general, when the legislature (or voters)
expressly prescribes a list in a statute (or initiative), ‘we assume the
exclusion of items not listed.’” State v. Maestas, 244 Ariz. 9, 13 ¶ 15 (2018)
(quoting State v. Ault, 157 Ariz. 516, 519 (1988)). But this rule does not
apply here, because § 36-2862(F) does not contain an expressly prescribed
list regarding a right to appeal. It is unlike the “list of locations where the
legislature may impose ‘civil, criminal or other penalties’” in the Arizona
Medical Marijuana Act, as addressed in Maestas. See id. (citing A.R.S.
§ 36-2802(B)(1)–(3)).

¶22 Therefore, § 36-2862(F) does not preclude the state from
appealing an order granting an expungement petition. We must now
decide whether § 13-4032(4) authorizes the state to appeal such orders as
“[a]n order made after judgment affecting the substantial rights of the state
or a victim.”

B. Does An Expungement Order Pertaining To Records Of A Felony
Conviction Affect The Substantial Rights Of The State?

¶23 “Historically, appeals by the state in criminal matters have
not been favored and are allowed only when that right is clearly provided
by constitution or statute.” State ex rel. McDougall v. Gerber, 159 Ariz. 241,
242 (1988). Thus, “[i]n the absence of a constitutional provision or statute
conferring the state’s right to appeal, an appellate court has no subject

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Opinion of the Court

matter jurisdiction to consider that appeal.” State v. Dawson, 164 Ariz. 278,
280 (1990); see also State v. Moore, 48 Ariz. 16, 18 (1936) (“The right of appeal
in criminal cases is not known to the common law and exists, if at all, by
virtue of some constitutional or statutory provision.”).

¶24 Here, the parties agree that whether the State has the right to
appeal turns on the meaning of § 13-4032(4), which permits an appeal from
“[a]n order made after judgment affecting the substantial rights of the state
or a victim.” The State contends that the order granting Santillanes’s
petition for expungement meets the requisite standard in § 13-4032(4)
because it is one “affecting the substantial rights of the state.” Santillanes
claims, however, that the expungement order does not affect the State’s
substantial rights.

¶25 Arizona statutes and court opinions do not provide a precise
definition of “substantial rights,” but courts have found several
circumstances that implicate the substantial rights of the state. See State v.
Lewis, 224 Ariz. 512, 513 ¶ 1, 514 ¶¶ 9–10 (App. 2010) (addressing
termination of probation); State v. Cowles, 207 Ariz. 8, 8–9 ¶¶ 1–2 (App.
2004) (addressing order releasing defendant from incarceration); State v.
Corno, 179 Ariz. 151, 153 (App. 1994) (addressing denial of motion to
withdraw from a plea agreement, and concluding a “‘substantial right’ is
implicated because the state ordinarily may withdraw from a plea
agreement when the trial court rejects a sentencing stipulation”).

¶26 This Court addressed the substantial rights of the state in
McKelvey, a case in which the defendant was convicted, sentenced to
imprisonment for nine months, and ordered to pay a $250 fine. 30 Ariz.
at 265–66. Partially into his prison term, the trial court issued an order
suspending the remainder of his sentence conditioned on him paying $150,
maintaining good behavior, remaining employed, and supporting his
family. Id. at 266. He was released from custody. Id. The state
appealed. Id. This Court determined that the order “did affect the
substantial rights of the state,” as required by § 13-4032(4)’s predecessor
statute then in effect. Id. at 267 (citing Ariz. Penal Code § 1155(5) (1913)
(“An appeal may be taken by the state . . . from an order made after
judgment affecting the substantial rights of the state.”)). Specifically, “[b]y
such order defendant was released from further imprisonment under the
sentence and judgment imposed by the court. The state has the right to

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have that sentence carried out, unless in some legal manner defendant is
relieved from the penalty thereof.” Id.

¶27 Santillanes contends that his case differs from McKelvey
because he completed the term and conditions of probation, and therefore
the expungement order does not affect the “substantial rights of the state”
under § 13-4032(4). 1 We disagree.

¶28 The electorate substantially and directly involved the state
throughout the Act’s statutory expungement scheme codified in § 36-2862.
More specifically, the state (1) may file a petition for expungement, (2)
receives notice of the filing of a petition, (3) may object to a petition, (4) may
request an evidentiary hearing and present evidence at such hearing, and
(5) has the burden of establishing by clear and convincing evidence that the
petitioner is not eligible for expungement. § 36-2862(B)(1), (B)(2)(a), (B)(3),
(I).

¶29 In this context, it is significant that the electorate authorized
the expungement of only certain marijuana offenses—those expressly
specified in § 36-2862(A)(1)–(3). See § 36-2862(A)(1) (“[p]ossessing,
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”); § 36-2862(A)(2) (“[p]ossessing, transporting,
cultivating or processing not more than six marijuana plants at the
individual’s primary residence for personal use”); § 36-2862(A)(3)
(“[p]ossessing, using or transporting paraphernalia relating to the
cultivation, manufacture, processing or consumption of marijuana”). The
state explicitly has the authority to contest expungement petitions and to
ensure that expunged records of arrests, charges, adjudications,
convictions, and sentences are for the specific offenses statutorily eligible
for expungement under § 36-2862(A)(1)–(3). The state’s substantial and

1 Under § 36-2862(A), a convicted defendant may seek the expungement of

records before he has fulfilled all terms of his sentence or probation (e.g.,
imprisonment, fines, or restitution). See § 36-2862(A). Although
Santillanes completed probation, other expungement orders that interfere
with the state’s “right to have th[e] sentence carried out” would affect the
substantial rights of the state under § 13-4032(4). See McKelvey, 30 Ariz.
at 265–67.

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direct involvement allows it to review and take legal measures to ensure
that only those specified offenses are expunged. No reason appears why
the electorate would grant the state a significant role in the expungement
process, yet simultaneously create a process that implicitly eliminates the
state’s appeal rights.

¶30 But Santillanes claims that the substantial rights of the state
are affected only if its procedural rights in the expungement process are
denied. For example, if the state requested and was denied the right to
introduce evidence in a proceeding, this denial would affect a substantial
right of the state. But, according to Santillanes, after the state has been
afforded its procedural rights, an order granting expungement does not
affect the state’s substantial rights. Therefore, in this case, Santillanes
claims that the State at most has a substantial interest, but not a substantial
right.

¶31 We conclude that Santillanes’s expungement order does in
fact affect a substantial right of the State. As the court of appeals explained
in Wanna, “[t]he state has a substantial right to ensure that defendants face
the legal consequences of their convictions.” 2023 WL 2318465, at *2 ¶ 8.
In addressing Wanna’s felony conviction, the court concluded that “the
state has a substantial right to preserve the host of legal consequences that
conviction records may carry.” Id. at *2 ¶ 8, 3 ¶ 12 (citing A.R.S.
§ 13-701(D)(11), A.R.S. § 13-703, and § 36-2862(D), among other statutes);
see also Ariz. R. Sup. Ct. 111(c)(1)(C) (authorizing citation of unpublished
memorandum decisions “for persuasive value”).

¶32 Indeed, Arizona law allows a prior felony conviction to be
used for aggravation and enhancement of a sentence. See State v. Cota, 229
Ariz. 136, 152 ¶ 85 (2012) (“Use of a prior felony conviction for aggravation
and enhancement is expressly authorized by A.R.S. §§ 13-701(D)(11) and
13-703.”); § 13-703 (categorizing “repetitive offenders” and setting forth
distinct sentencing ranges for different categories of “repetitive offenders”
with felony convictions); see also § 13-701(D)(11), (F) (providing that the
court shall determine and consider as an aggravating circumstance the fact
that a defendant was “previously convicted of a felony within the ten years
immediately preceding the date of the offense” and should take this into
account when determining the sentence for a felony conviction).

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¶33 Under the Act, however, an expunged conviction “may not be
used in a subsequent prosecution by a prosecuting agency or court for any
purpose.” § 36-2862(D). Where the state has pursued and obtained a
felony conviction, it has a substantial right in ensuring that its statutory
authority to use a prior felony conviction for enhancement or aggravation
of a subsequent sentence is not improperly eliminated by virtue of an
erroneous expungement. See Wanna, 2023 WL 2318465, at *1–2 ¶¶ 7–8.
An erroneous expungement would include, for example, one that expunges
records of a conviction for possession of more than two and one-half ounces
of marijuana, which is ineligible for expungement under § 36-2862(A)(1).
The state has a substantial right in ensuring that the legal consequences of
a felony conviction are lawfully preserved, a right that is comparable to the
one addressed in McKelvey. See McKelvey, 30 Ariz. at 267.

¶34 Santillanes maintains that McKelvey’s vitality diminished
after this Court developed the Arizona Rules of Procedure for Special
Actions. But those rules, which provide a process for a party to seek relief
from a court order through a discretionary special action, do not affect
whether an expungement order affects a “substantial right” of the state,
thus permitting it to appeal under the state’s longstanding right to appeal
under § 13-4032(4). See Ariz. R. P. Spec. Act. 1(a), (3). Further, contrary
to Santillanes’s claim, McKelvey has not been superseded by the addition of
§ 13-4032(5) (allowing the state to appeal a “sentence on the grounds that it
is illegal”). The right to appeal an order “affecting the substantial rights
of the state” still exists under § 13-4032(4). See Young v. Beck, 227 Ariz. 1,
4–5 ¶ 13 (2011) (“We generally do not find that a statute changes common
law unless ‘the legislature . . . clearly and plainly manifest[s] an intent’ to
have the statute do so.” (quoting Wyatt v. Wehmueller, 167 Ariz. 281, 284
(1991))) (alterations in original).

¶35 Moreover, Arizona law deprives a convicted felon of certain
civil rights, including the right to possess a firearm. See A.R.S.
§ 13-3101(A)(7)(b) (defining “prohibited possessor” as “any
person . . . [w]ho has been convicted within or without this state of a felony
or who has been adjudicated delinquent for a felony and whose civil right
to possess or carry a firearm has not been restored”); see also A.R.S.
§ 16-101(A)(5) (“Every resident of this state is qualified to register to vote if
the resident . . . [h]as not been convicted of treason or a felony, unless
restored to civil rights.”). The expungement order here restored
Santillanes’s civil rights, including his right to possess a firearm. See

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§ 36-2862(C)(1)(c) (providing that an order granting expungement of a
conviction or adjudication under § 36-2862(A) shall “state that the
petitioner’s civil rights, including the right to possess firearms, are restored,
unless the petitioner is otherwise not eligible for the restoration of civil
rights”). An expungement order granting restoration clearly affects the
status of a petitioner’s civil rights. It also affects the state’s substantial
right in ensuring that an individual deprived of his civil rights due to a
lawful felony conviction does not have those rights, including the right to
possess a firearm, unlawfully restored.

¶36 Our opinion does not thwart the purpose of the Act, as amici
claim, because records ordered expunged will become unsealed only after
an appellate court determines that those records are statutorily ineligible
for expungement in the first place. Moreover, we do not permit the state
“to appeal every granted expungement,” a concern that amici raised. As
discussed, appeals from orders expunging records of a felony conviction
are always appealable by the state because they affect the substantial rights
of the state under § 13-4032(4). And in every proceeding, the state’s
lawyer will be appropriately constrained by Ethical Rule (“ER”) 3.1. The
state may not appeal an expungement order that it alleges falls outside the
scope of the specific offenses identified in § 36-2862(A) “unless there is a
good faith basis in law and fact for doing so that is not frivolous.” See Ariz.
R. Sup. Ct. 42, ER 3.1.

¶37 For these reasons, we hold that an order that expunges
records pertaining to a felony conviction is “[a]n order made after judgment
affecting the substantial rights of the state” under § 13-4032(4). Therefore,
the State has the right to appeal the order expunging Santillanes’s records
and restoring his civil rights, including the right to possess a firearm.

¶38 Our holding today applies only to the right to appeal an
expungement order pertaining to records of a felony conviction under
§ 13-4032(4). We do not address or take a position on whether the state
will ever have the right to appeal, under any subsection of § 13-4032,
expungement orders where the petitioner (1) was convicted only of a

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misdemeanor offense, or (2) was arrested or charged but never convicted. 2
Those circumstances are not before us.

CONCLUSION

¶39 We vacate paragraphs 1 and 7–21 of the court of appeals’
opinion. Because the court of appeals decided additional legal issues that
were not raised to this Court, we remand to the trial court for further
proceedings consistent with the remainder of the court of appeals’ opinion.

2 We note that where a petitioner was arrested or charged but never
convicted of any offense, there would not be “[a]n order made after
judgment” under § 13-4032(4).

14