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From the Bench: Moving forward after criminal conviction in Surprise

Ending punishment doesn’t finish the consequences

Posted 2/27/24

A criminal conviction, whether for a felony, misdemeanor, or even a petty offense, can have unintended and in some cases far-reaching consequences that can last a lifetime.

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From the Bench: Moving forward after criminal conviction in Surprise

Ending punishment doesn’t finish the consequences


“All the windows of my heart I open to this day…”

With these words, which celebrate being fully present in the here and now, the poet John Greenleaf Whittier ended his poem, “My Psalm.” This closing embodies the idea of a fresh beginning; of embracing a new day of hope, opportunity, and promise, no matter how bad things may have seemed the day before.

How, you may wonder, does that relate to the work of the criminal courts, or to Arizona law?

To answer, consider this scenario: a person commits a crime, is convicted and sentenced, and successfully completes everything the judge’s order required of them. End of story, right?

No, not end of story at all.

A criminal conviction, whether for a felony, misdemeanor, or even a petty offense, can have unintended and in some cases far-reaching consequences that can last a lifetime. It may present barriers to a person’s ability to maintain employment; obtain housing; be accepted into college; qualify for military service; qualify for financial aid; get a driver’s license; obtain or keep a professional license; keep their legal status as an immigrant; possess firearms; maintain a fingerprint clearance card; and more.

And while the immediate and direct consequences of a criminal conviction are fully intended, many collateral consequences may prevent people from bettering themselves or becoming productive members of society after they complete their sentences. Studies show that a variety of unintended consequences of a criminal conviction and the resulting inability to move forward can both increase recidivism and result in a downward spiral, affecting the individual and their family for years to come.

This is where the law may provide some relief.

Arizona law has three options intended to help a person to move forward in life, even after they have been charged with or convicted of a criminal offense. Subject to certain exceptions, a defendant may apply to have their judgment of guilt set aside; petition the court to have their criminal case records sealed from public access; and, regarding certain marijuana-related offenses, ask to have the criminal records expunged.

In this article, we provide an overview of these options. But understand that the statutes are lengthy and somewhat complex, and in many respects are intertwined with other laws. Anyone wishing to seek such relief should read the entire statute (and any laws referenced in the statute), and consider getting legal advice concerning their own circumstances before proceeding.

Application to Set Aside a Judgment of Guilt. The first option (and the one most commonly seen in Surprise City Court) is the right to apply to have one’s judgment of guilt set aside. Under Arizona Revised Statutes § 13-905, with certain exceptions as to types of crimes, any person who has been convicted of a criminal offense may apply to have their conviction set aside and for a certificate of second chance.

To be eligible for this relief, the defendant must have completed everything that was required by their judgment and sentence order (including any term of probation and all mandates ordered by the court).

The exceptions to § 13-905, and the types of convictions that cannot be set aside, include those for a “dangerous offense” (defined as one which involved the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument, or the intentional or knowing infliction of serious physical injury on another person); a felony offense in which the victim was under 15 years of age; an offense for which a finding of “sexual motivation” was made; or an offense for which the defendant was ordered to register as a sex offender.

The prosecutor and any victim of the crime have the right to be heard on the defendant’s application. If there is an objection, the court may set a hearing to give the parties and the victim the opportunity to address the court. The decision whether to grant or deny the application is within the discretion of the judge, who will consider the factors described in the statute.

If the court grants the application, the court will set aside the judgment of guilt and order that the defendant be released from all penalties and disabilities resulting from the conviction, except for those imposed by the department of transportation or the game and fish commission.

But setting aside a judgment of guilt does not change history; it does not remove information that has been reported to the department of transportation, does not relieve the person of MVD or driver-license-related consequences, does not require law enforcement to redact or remove a record or other information, and does not allow the department of public safety to redact or remove any part of one’s record.

What it does do is allow the person who may be required to disclose a criminal conviction to also note that the conviction has been set aside by the court. That lets a potential employer, landlord, financial institution, or other party know that the sentencing court has acknowledged the person’s fulfillment of all the conditions of the judgment and sentencing order imposed in their case.

Petition to Seal Case Records. The second option is provided by Arizona Revised Statutes § 13-911. Under this statute, after the required waiting period has passed and again, subject to exceptions, a person may be eligible to petition the court for an order to seal from public access all the criminal case records of their arrest, conviction, and sentence.

However, § 13-911 is particularly intertwined with other laws. Getting legal advice can be crucial in helping one understand both its requirements and its limitations.

For cases in which one was convicted of a crime, they may be eligible to file a petition to seal after certain conditions are met. First, they must complete all the terms and conditions of their sentence; then, they must wait a designated period of time after that date of completion before they file their petition. The statutory waiting period is anywhere from two years to ten years, depending on the level of crime, plus the possibility of an additional five years if they have certain prior convictions. In addition, they must not have been convicted of any other offense thereafter (except for certain misdemeanors under title 28, not including DUI).

Significantly, this right is not limited to cases which resulted in a criminal conviction. It also applies where a person was arrested but never formally charged with a crime; where a person was charged with a crime but the charge was later dismissed; and where a person was charged with a crime but was later found “not guilty” at trial. In all these circumstances, the person may petition to have the criminal case records sealed.

A petition to seal must be filed in the court where the conviction took place. If the charges were dismissed, or the person was found not guilty, or their conviction was vacated, the petition must be filed in the court where the criminal complaint was filed.

If a petition to seal is granted, the records that are under the control of criminal justice entities (including the courts, the Department of Public Safety, prosecutors’ offices, and law enforcement agencies) will be ordered removed from public access. However, any case record that was published or distributed prior to sealing may still be accessible and may not be impacted by the order.

If a petition to seal is denied, the defendant must wait three years from the date of the denial to file a new petition regarding those records. If a petition is instead dismissed (because, for example, it was filed in the wrong court), the 3-year waiting period would not apply.

Petition to Expunge Records of Marijuana-Related Offenses. The third option is under Arizona Revised Statutes § 36-2862. This statute was added as part of Proposition 207, a voter initiative known as “The Smart and Safe Arizona Act.”

Proposition 207 legalized and regulates the adult recreational use of marijuana, and allows for expungement of certain prior marijuana offenses. Under § 36-2862, people with certain criminal records related to marijuana may petition the court to have the records of their arrest, charge, adjudication, conviction, or sentence expunged.

Specifically, one may ask the court to expunge records for charges that relate to possessing, consuming, or transporting small (specified) quantities of marijuana; possessing, growing, or processing not more than six marijuana plants at their home for their personal use; or possessing or using drug paraphernalia that is related to marijuana.

A petition to expunge marijuana-related records must be filed in the court that resolved the case. If the person was arrested but never charged, the petition must be filed in the Superior Court for the county where the arrest took place.

The prosecutor may respond to the petition. However, the court must grant the petition unless the prosecutor shows by clear and convincing evidence that the petitioner is not eligible for expungement.

If the court grants a petition to expunge, the case file and related law enforcement records will be sealed, and the judgment, conviction, and sentence will be vacated. Any monies that are still owed to the court in connection with the expunged charge will be cancelled (although monies previously paid will not be refunded). The court, law enforcement agency, prosecuting agency, and Arizona DPS will no longer make the expunged records available to the public, and the expunged charge cannot be used for any purpose by a prosecution agency or a court in any later prosecution. The defendant’s civil rights as to the expunged charge will also be restored.

The above is an overview of three Arizona laws that may help a person move forward, despite having a criminal conviction or record of arrest in their past. A great deal of additional information on these topics is available at the Arizona Judicial Branch’s website, azcourts.gov (from that “home” page, search for “Petition to Seal” or “Proposition 207”).

For convictions that were adjudicated in Surprise City Court, a fillable pdf of the Application to Set Aside Judgment of Guilt is available at surpriseaz.gov/courts, and the remaining forms may be obtained from the court.

Judge Catherine Gaudreau is the associate judge for the city of Surprise.