State v. Williams

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

BENNETT LAQUAN WILLIAMS, Petitioner.

No. 1 CA-CR 22-0197 PRPC
FILED 2-14-2023
AMENDED PER ORDER FILED 2-14-2023

Appeal from the Superior Court in Maricopa County
No. CR2016-002220-001
The Honorable Rosa Mroz, Judge, Deceased

REVIEW GRANTED; RELIEF GRANTED

COUNSEL

Sandra Day O’Connor College of Law Post-Conviction Clinic, Phoenix
By Randal McDonald, Robert J. Dormady
Counsel for Petitioner

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

OPINION

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in
which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.
 STATE v. WILLIAMS
Opinion of the Court

T H U M M A, Judge:

¶1 In 2017, Defendant Bennett LaQuan Williams pled guilty to
two counts of sex trafficking, Class 2 felonies and non-dangerous but
repetitive offenses. Although avowing to seven prior felony convictions in
a written plea agreement, the prior felony offense referenced making the
offenses repetitive was a 2004 felony conviction for possessing or using
marijuana. After properly accepting the plea, consistent with its terms, the
court then sentenced Williams to concurrent 12-year prison terms for the
sex trafficking convictions.

¶2 In 2020, Arizona voters adopted Proposition 207, sometimes
called the Smart and Safe Arizona Act (Act), which authorizes
expungement of adult convictions for the possession or use of small
amounts of marijuana. See Ariz. Rev. Stat. (A.R.S.) §36-2862(A) (2023); 1 see
generally State v. Santillanes, ___ Ariz. ___ (App. Dec. 15, 2022) (discussing
and applying the Act). After successfully obtaining an order vacating and
expunging his 2004 marijuana conviction, in November 2021, Williams filed
this petition for post-conviction relief, claiming that his repetitive offense
convictions and sentences were invalid. See Ariz. R. Crim. P. 33. The
superior court dismissed the petition, concluding the Act “does not provide
relief for prior convictions and the resulting sentencing that occurred before
the expungement.”

¶3 Williams timely filed a petition for review by this court. In
response, the State conceded error, noting that the 2004 marijuana
conviction “has been expunged, and because the record is insufficient to
find the existence of any other allegeable historical prior [felony conviction]
that would support enforcing his sentence, Williams’ sentence is not
authorized by law.” For the reasons that follow, this court grants review
and grants relief by vacating the plea agreement (and resulting convictions
and sentences), reinstating the original charges and remanding for further
proceedings consistent with this opinion.

1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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 STATE v. WILLIAMS
Opinion of the Court

DISCUSSION

I. Williams’ Claim Is Not Precluded.

¶4 This is Williams’ third petition for post-conviction relief,
although the first one filed after expungement of his 2004 marijuana
conviction. Generally, a petitioner must file a claim for post-conviction
relief within 90 days after the oral pronouncement of sentence. See Ariz. R.
Crim. P. 33.4(b)(3). However, a petitioner is not always precluded from
raising a claim under Rule 33.1(b) through (h) in a successive or untimely
post-conviction relief proceeding if the notice is filed “within a reasonable
time after discovering the basis for the claim.” Ariz. R. Crim. P.
33.4(b)(3)(B); see also Ariz. R. Crim. P. 33.2(b)(1).

¶5 Williams’ petition for post-conviction relief alleged, under
Rule 33.1(g), that there had been a significant change in the law that, if
applicable, would probably overturn his conviction or sentence. The State
concedes that Williams is entitled to relief under Rule 33.1(g). As a result,
this court analyzes Williams’ claim under Rule 33.1(g).2

¶6 Rule 33 “does not define ‘a significant change in the law.’ But
plainly a ‘change in the law’ requires some transformative event, a ‘clear
break from the past.’” State v. Shrum, 220 Ariz. 115, 118 ¶ 15 (2009) (quoting
State v. Slemmer, 170 Ariz. 174, 182 (1991)); accord State v. Bigger, 251 Ariz.
402, 411 ¶ 28 (2021); State v. Cruz, 251 Ariz. 203, 206 ¶ 13 (2021); cf. Slemmer,
170 Ariz. at 182 (“a significant change in the law” is “a ‘sharp break’ with
the past”). Examples of significant changes in the law include when binding
case law is overruled or when a statutory or constitutional amendment is
enacted. Shrum, 220 Ariz. at 118-19, ¶¶ 16-17. Comparing Arizona law
before and after the effective date of the Act shows that the Act is “a
significant change in the law.” Ariz. R. Crim. P. 33.1(g).

¶7 Before the Act, Arizona law made it a felony to knowingly
“[p]ossess or use marijuana,” A.R.S. § 13-3405(A)(1) (2022), subject to
certain exceptions under the Arizona Medical Marijuana Act enacted after
Williams’ 2004 marijuana conviction, see A.R.S. § 36-2801 to – 2822. Before
the Act, Arizona did “not authorize a person’s criminal records to be

2 Accordingly, this court need not (and expressly does not) address
Williams’ arguments under Rule 33.1(c), which were not pressed with the
superior court. See Ariz. R. Crim. P. 33.16(c)(2) (limiting petition for review
by this court to issues raised in the superior court).

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 STATE v. WILLIAMS
Opinion of the Court

expunged or hidden from law enforcement officials.” State v. Mohajerin, 226
Ariz. 103, 108 ¶15 (App. 2010).

¶8 After enactment of the Act, by contrast, adult possession and
personal use of marijuana is legalized, subject to limits that do not apply
here. A.R.S. § 36-2852. The Act also authorizes expungement of convictions
for, among other things, conduct “occurring before the effective date of” the
Act for “[p]ossessing, consuming or transporting two and one-half ounces
or less of marijuana.” A.R.S. § 36-2862(A)(1).

¶9 For these reasons, the Act represents a “clear,” “sharp” break
from prior Arizona law. See Shrum, 220 Ariz. at 118 ¶ 15; Slemmer, 170 Ariz.
at 182. For these reasons, Williams’ petition states a claim for relief under
Rule 33.1(g) that is not precluded.

II. The Act Applies Retroactively.

¶10 New constitutional rules of criminal procedure typically do
not apply retroactively in collateral proceedings. See State v. Towery, 204
Ariz. 386, 389 ¶¶ 6-7 (2003) (following Teague v. Lane, 489 U.S. 288 (1989)).
Retroactive application applies in “two narrow exceptions:” where the
change either (1) “’places certain kinds of primary, private individual
conduct beyond the power of the criminal law-making authority to
proscribe’” or (2) “is a watershed rule of criminal procedure that is ‘implicit
in the concept of orderly liberty.’” Towery, 204 Ariz. at 389 ¶ 7, 392 ¶ 14
(quoting Teague, 389 U.S. at 307, 311). “The Constitution, however, neither
forbids nor demands retroactive application of new rules that have become
final.” Towery, 204 Ariz. at 389 ¶ 6.

¶11 By legalizing adult possession and personal use of marijuana,
the Act prohibits the criminalization of such conduct. Accordingly, the Act
falls within the first narrow exception to prospective only application. See
Towery, 204 Ariz. at 392 ¶ 14 (quoting Teague, 489 U.S. at 307). Moreover,
the Act itself expressly directs that it applies retroactively. See A.R.S. § 1-244
(“No statute is retroactive unless expressly declared therein.”) (emphasis
added). The Act authorizes expungement for specific offenses “based on or
arising out of conduct occurring before the effective date” of the Act. A.R.S.
§ 36-2862(A). An order granting expungement “shall” “vacate the judgment
of adjudication or conviction” for any applicable offense, including those
committed “before the effective date” of the Act. A.R.S. § 36-2862(C)(1)(a).
And when expungement is ordered, the Act also requires the court to grant
a motion to dismiss, with prejudice, any pending charges “based on or
arising out of conduct occurring before the effective date” of the Act. A.R.S.

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 STATE v. WILLIAMS
Opinion of the Court

§ 36-2862(G). Thus, by its own terms, the Act applies retroactively, see A.R.S.
§ 1-244, meaning Williams properly can invoke its protections in this
collateral proceeding.

III. Williams Is Entitled to Relief.

¶12 The Act mandates that “[a]n arrest, charge, adjudication,
conviction or sentence that is expunged pursuant to this section may not be
used in a subsequent prosecution by a prosecuting agency or court for any
purpose.” A.R.S. § 36-2862(D) (emphasis added). The superior court found
the Act did not apply because Williams pled guilty before the effective date
of the Act. Put another way, that ruling prohibited the State from using
expunged convictions in prosecutions after the enactment of the Act. That
was error.

¶13 Only a “constitutionally valid” prior conviction can be used
to enhance a sentence. State v. McCann, 200 Ariz. 27, 31 ¶ 17 (2001). In
general, under Arizona law, if a prior conviction used to make an offense
repetitive is later vacated, the resulting sentence is no longer valid. State v.
Szpyrka, 223 Ariz. 390, 392 ¶ 4 (App. 2010) (citing State v. Thompson, 200 Ariz.
439, 441 ¶ 6 (2001)). Recognizing the need for a factual basis for a prior
conviction to make an offense repetitive, when such a prior conviction is
later vacated, there is “clearly no factual basis” to support it. Szpyrka, 223
Ariz. at 392 ¶ 4. When that happens, the factual basis supporting a plea
agreement based on that prior conviction is missing. See, e.g., id.; Ariz. R.
Crim. P. 17.3(b) (determining a factual basis for a guilty or no contest plea)
& 17.6 (requiring a factual basis for a prior conviction); see also State v.
Ofstedahl, 208 Ariz. 406, 408 ¶ 7 (App. 2004) (“When admitting a prior
conviction for sentence enhancement purposes is part of a plea agreement,
as it was here, a factual basis for the prior conviction must be established,
just as a factual basis is similarly required for each element of the
substantive offense.”). Although Szpyrka involved a prior conviction later
vacated on appeal, there is no reason to treat expungements any differently.
Accordingly, that same rationale applies here.3

3Szpyrka came to this same conclusion even when the defendant later pled
guilty to the prior felony that had been vacated on appeal. 223 Ariz. at 392
¶ 4. In the expungement context, no such later plea could be implicated,
given the marijuana offense could not be reinstated.

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 STATE v. WILLIAMS
Opinion of the Court

IV. Remedy.

¶14 Given the expungement of the only prior felony conviction
listed in the plea agreement that allowed Williams to be sentenced as a
repetitive offender, he argues that the proper remedy is resentencing as a
nonrepetitive offender. The State, by contrast, argues that the proper
remedy is to remand for a resentencing hearing, where the State could
withdraw from the plea agreement “should it seek to do so.”

¶15 “’Plea agreements are contractual in nature and subject to
contract interpretation.’” Szpyrka, 223 Ariz. at 392 ¶ 5 (citation omitted).
Where, as here, a plea agreement specifies a sentence, “[n]o authority exists
for this court to modify the sentence so as to deviate from the intent of both
the state and the defendant.” State v. Quick, 167 Ariz. 318, 322 (App. 1991).
Nor is this a case in which a change in the law, or a legal error, immaterially
alters the plea agreement. See Coy v. Fields, 200 Ariz. 442, 445 ¶ 10 (App.
2001) (vacating order setting aside a plea agreement, where an
impermissible probation option did not “materially alter[] the plea
agreement”). Applying Szpyrka, when the prior conviction is vacated by
expungement, “the terms of the plea agreement were altered materially,
frustrating its purpose.” 223 Ariz. at 393 ¶ 9. When that happens, “[t]he
usual disposition where there is no factual basis for a plea is vacation of the
plea and remand with reinstatement of charges.” State v. Draper, 123 Ariz.
399, 401 (App. 1979); see also Quick, 167 Ariz. at 322 (vacating plea where
sentence was enhanced with no factual basis); State v. Bonnell, 171 Ariz. 435,
438 (App. 1992) (vacating plea and reinstating charges when factual basis
to support the conviction was lacking). The parties provide no reason for
this court to deviate from this “usual disposition.”

¶16 In vacating the plea agreement, reinstating the charges and
remanding for further proceedings, the court recognizes Williams’ avowal
in the written plea agreement that he had “no more than” six other prior
felony convictions, apart from his now-vacated 2004 marijuana conviction.
But because the only prior felony conviction specified in the plea to enhance
his sentences has been vacated, the terms of the plea were materially
altered, and its purpose frustrated. This court lacks authority to order
Williams to be resentenced pursuant to a modified plea as both Williams
and the State request.

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 STATE v. WILLIAMS
Opinion of the Court

CONCLUSION

¶17 This court grants review and grants relief by vacating the plea
agreement (and resulting convictions and sentences), reinstating the
original charges and remanding for further proceedings consistent with this
opinion.

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

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