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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
DEJUAN MARKEISS HOPSON, Appellant.
No. 1 CA-CR 22-0570
FILED 10-17-2023
Appeal from the Superior Court in Maricopa County
No. CR2014-104991-003
The Honorable Adam D. Driggs, Judge
AFFIRMED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Johnny Jacquez
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
STATE v. HOPSON
Decision of the Court
MEMORANDUM DECISION
Presiding Judge David D. Weinzweig delivered the decision of the Court,
in which Judge Michael S. Catlett and Judge Maria Elena Cruz joined.
W E I N Z W E I G, Judge:
¶1 Dejuan Markeiss Hopson appeals the superior court’s denial
of his petition to expunge all records related to his conviction for possession
of drug paraphernalia. We reject his argument and affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The State charged Hopson with multiple counts of gang and
drug-related offenses, including one count of possession or use of narcotic
drugs, a class 4 felony. According to the indictment and probable cause
statement, Hopson possessed or used the narcotic drug heroin.
¶3 Hopson entered a plea agreement with the State, pleading
guilty to an amended count of possession of drug paraphernalia, a class 6
designated felony. As part of that agreement, Hopson signed a written
factual basis in which he admitted knowingly possessing “a plastic baggie
of heroin.” The probation department issued a presentence report stating
that Hopson possessed a “small plastic baggie containing heroin” at the
time of his arrest. Hopson did not contest the report.
¶4 The superior court suspended Hopson’s sentence and placed
him on intensive probation. The court later revoked Hopson’s probation
and imposed a term of imprisonment equal to his credit for time served.
¶5 Here, Hopson petitioned the superior court to expunge all
records related to his conviction for possession of drug paraphernalia under
A.R.S. § 36-2862. The State opposed the petition, arguing Hopson pled
guilty to an amended count of possession of drug paraphernalia involving
heroin, not marijuana. The State attached the indictment and sentencing
minute entry. Before Hopson replied and without conducting a hearing,
the superior court denied his petition, noting it had considered only the
petition and response.
¶6 Hopson moved for the superior court to reconsider, filed his
response and requested a hearing. For the first time, he argued that he
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STATE v. HOPSON
Decision of the Court
possessed “cannabis resin” at the time of his arrest, and the conviction was
therefore a marijuana-related offense under A.R.S. § 36-2862. After
reviewing the pleadings, the court found Hopson’s reply unpersuasive and
denied his motion to reconsider and request for hearing.
¶7 Hopson timely appealed. We have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, -4033(A)(3), and 36-2862(F).
DISCUSSION
¶8 Hopson argues the superior court failed to comply with the
requirements of A.R.S. § 36-2862 and Rule 36 in denying his petition for
expungement. He contends that the court erred by (1) failing to conduct a
hearing; (2) shifting the burden of proof; (3) denying the petition before he
replied; and (4) failing to make findings of fact and conclusions of law. He
asks that we vacate the court’s order and remand for proceedings in
accordance with the law. We review the denial of a petition for
expungement for an abuse of discretion, but review issues of statutory
interpretation de novo. State v. Hall, 234 Ariz. 374, 375, ¶ 3 (App. 2014).
¶9 In November 2020, Arizona voters adopted Proposition 207,
the Smart and Safe Arizona Act, which authorized expungement of certain
marijuana-related offenses. The Act was codified in § 36-2862(A). Our
supreme court enacted Arizona Rule of Criminal Procedure 36 to provide
additional guidelines for expungement.
¶10 As relevant here, § 36-2862(A) authorizes individuals to
petition the superior court to expunge the records related to: (1) their
“arrest, charge, adjudication, conviction or sentence” for offenses involving
the possession of “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,” or (2) the possession of “paraphernalia relating to the
cultivation, manufacture, processing or consumption of marijuana.” A.R.S.
§ 36-2862(A)(1), (3). When petitioned “pursuant to this section,”
1. The court shall notify the prosecuting agency of the filing
of the petition, and allow the prosecuting agency to respond
to the petition within thirty days.
2. The court may hold a hearing . . . [i]f the court concludes
there are genuine disputes of fact regarding whether the
petition should be granted.
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STATE v. HOPSON
Decision of the Court
3. The court shall grant the petition unless the prosecuting
agency establishes by clear and convincing evidence that the
petitioner is not eligible for expungement.
4. 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)(1)–(4).
¶11 Rule 36 similarly authorizes the court to conduct a hearing if
“there are genuine issues of fact,” allows the parties to file a response and
reply, and requires the court to make “findings of fact and conclusions of
law.” Ariz. R. Crim. P. 36(b)(4)–(5), (c)(1), (d)(5).
¶12 Rule 36 places the burden of proof on the State, but provides
the superior court “must grant the petition unless the prosecuting agency
establishes by clear and convincing evidence that the offense is not eligible
for expungement or if the court finds that the offense identified in the
petition is not eligible for expungement.” Ariz. R. Crim. P. 36(d)(3). The
court may deny a petition if it finds the offense facially ineligible for
expungement. State v. Ibarra, 254 Ariz. 320, 324, ¶ 11 (App. 2022).
¶13 All record evidence demonstrated that Hopson was convicted
of a heroin-related offense, not a marijuana-related offense. For that reason,
his conviction did not qualify for expungement under § 36-2862(A). A
hearing was not warranted because the pleadings raised no “genuine
disputes of fact,” Ariz. R. Crim. P. 36(c)(1), and the superior court correctly
rejected the petition as facially ineligible for expungement, Ariz. R. Crim. P.
36(d)(3). And because the petition was facially ineligible, the court need not
have waited for Hopson’s reply. Even so, the court later reviewed
Hopson’s reply and found it unpersuasive.
¶14 Lastly, a lack of findings under A.R.S. § 36-2862(B)(4) and
Rule 36(d)(5) “will not automatically invalidate an order,” and require
remand only “if we cannot determine the factual basis of [the court’s]
conclusion or whether it was legally sound.” State v. Santillanes, ___ Ariz.
___, ___, 522 P.3d 691, 698, ¶ 34 (App. 2022) (cleaned up). The court had
sufficient information to resolve the dispute and reached the correct
decision. Id. at 698–99, ¶¶ 30, 35.
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STATE v. HOPSON
Decision of the Court
CONCLUSION
¶15 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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