STATE v. HOPE No. 1 CA-CR 10-0500.

STATE OF ARIZONA, Appellee, v. JASON R. HOPE, Appellant.

Court of Appeals of Arizona, Division One, Department E.
Filed May 3, 2011.
Harper Christian Dichter & Sluga, P.C., Phoenix, by Stephen M. Dichter and Alison R. Christian, Attorneys for Appellant.

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

PETER B. SWANN, Presiding Judge.

¶1 Jason Hope ("Appellant") was subject to wrongful prosecution, and the superior court granted him relief under A.R.S. § 13-4051. After discovering records of the prosecution were still publicly available that did not indicate that he had been cleared, Appellant moved for an order sealing the records. The court denied that motion, and Appellant timely appeals from that denial. We conclude that Appellant is entitled to additional relief under § 13-4051, but that he was not entitled to have the records sealed. We therefore affirm the denial of the motion to seal and remand with instructions.

FACTS AND PROCEDURAL HISTORY

¶2 On February 1, 2007, Appellant was indicted. On July 18, 2008, the trial court granted Appellant's Motion to Dismiss Indictment Based Upon Vindictive Prosecution, and dismissed all charges with prejudice. On May 13, 2009, in an unsigned minute entry, the trial court granted Appellant relief:

The Court has read and considered Defendant's Petition for Entry of Clearance of Records Pursuant to A.R.S. § 13-4051. There being no objection from the State, IT IS ORDERED granting the Petition, and authorizing that all court records, police records, and any other records of any other agency relating to such arrest or indictment bear the notation that the Defendant has been "cleared."

¶3 The court issued no other orders to accomplish the purposes of A.R.S. § 13-4051, which provides in relevant part:

A. Any person who is wrongfully arrested, indicted or otherwise charged for any crime may petition the superior court for entry upon all court records, police records and any other records of any other agency relating to such arrest or indictment a notation that the person has been cleared. B. After a hearing on the petition, if the judge believes that justice will be served by such entry, the judge shall issue the order requiring the entry that the person has been cleared on such records, with accompanying justification therefor, and shall cause a copy of such order to be delivered to all law enforcement agencies and courts. The order shall further require that all law enforcement agencies and courts shall not release copies of such records to any person except upon order of the court.

(Emphasis added.)

¶4 Appellant later discovered that records of his case were still publicly available on a government website. Therefore, on April 13, 2010, he filed a motion asking that the records of the case be sealed. That motion was denied.

¶5 Appellant timely appeals. We have jurisdiction under A.R.S. § 12-2101(E).

DISCUSSION

¶6 We review a trial court's decision to deny a motion to seal records for an abuse of discretion. In re Marriage of Flynn, 27 Ariz.App. 653, 655, 557 P.2d 1085, 1087 (1976). We interpret A.R.S. § 13-4051 de novo. See State v. Jensen, 193 Ariz. 105, 107, ¶ 16, 970 P.2d 937, 939 (App. 1998) ("Interpretation of a statute is a question of law we review de novo."). An unambiguous statute should be interpreted to mean what it plainly states unless an absurdity would result. U.S. Parking Sys. v. City of Phoenix, 160 Ariz. 210, 211, 772 P.2d 33, 34 (App. 1989).

¶7 Under the plain language of A.R.S. § 13-4051, once the court grants relief, it must issue the orders specified in subsection B. See City of Chandler v. Ariz. Dep't of Transp., 216 Ariz. 435, 438-39, ¶ 10, 167 P.3d 122, 125-26 (App. 2007) (finding the use of "shall" requires the court to act). But § 13-4051 does not require that the court seal records, nor does it expressly authorize sealing. See State v. Mohajerin, 226 Ariz. 103, 108, ¶ 15, 244 P.3d 107, 112 (App. 2010) ("[A.R.S. § 13-4051] does not authorize a person's criminal record to be. . . hidden from law enforcement officials.").

¶8 Nevertheless, on the record before us it does not appear that all of the relief that Appellant is entitled to under A.R.S. § 13-4051(B) has been granted. The trial court is required to fully comply with that statute by issuing appropriate orders to effectuate its finding that Appellant is entitled to relief, but sealing of the record is not a form of relief prescribed by the statute.

¶9 The public has a significant interest in monitoring the government's performance of its law enforcement functions. See generally Schoeneweis v. Hamner, 223 Ariz. 169, 221 P.3d 48 (App. 2009). To that end, there is no authority in Arizona to support the wholesale sealing of law enforcement and judicial records. Instead, the statute balances the interests of public scrutiny and the avoidance of reputational harm to those wrongfully subject to prosecution by requiring the orders described in A. R. S. § 13-4051 (B). We conclude that such orders represent the relief to which Appellant is legally entitled. Because neither the statute nor the record on appeal reveals the precise details of the relief required — including which agencies require § 13-4051(B) orders — we remand for further proceedings to permit the court and counsel to craft necessary orders that will afford the full relief to which Appellant is entitled under the statute.

CONCLUSION

¶10 Because the record does not indicate that Appellant has received the full measure of relief he is entitled to under A.R.S. § 13-4051(B), we affirm the denial of Appellant's request to seal, and remand for further proceedings to ensure that the orders prescribed by the statute are issued.

PATRICK IRVINE, Judge and MAURICE PORTLEY, Judge, Concurring.


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