KELLY, Presiding Judge.
¶ 1 In this special action proceeding, the state has asked us to consider the relationship between a trial court's designation of an offense as "non-dangerous" for the purpose of conviction and sentencing, see A.R.S. §§ 13-702, 13-704, and another judge's later consideration of whether that same conviction had been for "a dangerous offense," which would render the defendant ineligible to have the conviction set aside pursuant to A.R.S. § 13-907(D)(1). Specifically, the state argues the respondent judge erred as a matter of law when she set aside real-party-in-interest Debbie Copeland's conviction for attempted aggravated assault.
¶ 2 The state contends Copeland's conviction cannot be set aside because it was "for a dangerous offense, even though the allegation of the dangerous nature was dropped" by Copeland's plea agreement, and even though the offense had been designated at conviction as non-dangerous. The state also urges this court to "grant jurisdiction and publish its decision to provide guidance to the trial courts on this issue," a matter of first impression in Arizona courts.
¶ 3 Although special action review is not available "where there is an equally plain, speedy, and adequate remedy by appeal," Ariz. R.P. Spec. Actions 1(a), the state's right to appeal from post-judgment orders is limited to those orders "affecting the substantial rights of the state or a victim." A.R.S. § 13-4032(4). The state believes its right to a remedy by appeal is not readily apparent, and Copeland agrees. We may accept special action jurisdiction when the "remedy by appeal is not `equally plain' compared to [a] remedy by special action." State v. Bernini, 230 Ariz. 223, ¶ 5, 282 P.3d 424, 426 (App. 2012). We do so here because the question raised may be resolved on purely legal grounds and is likely to arise again, but may evade review by direct appeal. See State ex rel. Romley v. Martin, 203 Ariz. 46, ¶ 4, 49 P.3d 1142, 1143 (App.2002) ("Special action jurisdiction is appropriate in matters of statewide importance, issues of first impression, cases involving purely legal questions, or issues that are likely to arise again."). Although we accept special action jurisdiction, we deny relief, for the reasons that follow.
¶ 4 On March 28, 2011, Copeland pleaded guilty pursuant to a plea agreement that provided,
The agreement also "amend[ed] the charges filed in this case to the offense(s) set forth above," with "[a]ll other charges and allegations in this case ... dismissed." Presumably, the agreement's dismissal of "other ... allegations" included the dismissal of a separate allegation that Copeland had committed a "dangerous offense" that subjected her to an enhanced sentence under § 13-704(A). The agreement did not exclude the possibility of probation, but required that any probation ordered by the court be for a minimum three-year term and include specific conditions.
¶ 5 The trial court accepted Copeland's guilty plea, stating in its sentencing minute entry,
The court suspended the imposition of sentence and placed Copeland on a three-year term of probation.
¶ 6 On April 29, 2013, the respondent judge awarded Copeland a certificate of graduation from a "Specialty Court" and ordered her probation successfully terminated. On May 1, Copeland applied for an order setting aside her judgment of conviction and "restoring her civil rights, with the exception of the right to bear arms," pursuant to A.R.S. §§ 13-907 and 13-908. Recognizing that § 13-907(D)(1) provides the section "does not apply" to a person "convicted of a criminal offense ... [i]nvolving a dangerous offense," Copeland argued her "conviction is not for a dangerous offense" because "in accordance with her plea of guilty, [she] currently stands convicted of attempted aggravated assault, a non-dangerous class four felony."
¶ 7 The state did not object to restoration of Copeland's civil rights,
¶ 8 We review a decision to set aside a conviction for an abuse of discretion. See A.R.S. § 13-908; State v. Key, 128 Ariz. 419,
¶ 9 "`Dangerous offense'" is defined in A.R.S. § 13-105(13) as "an offense involving 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." This definition was added in 2008 to § 13-105, the general definition section for title 13, when the legislature "reorganize[d] title 13, chapters 6 and 7, ... for the purpose of simplifying the criminal sentencing laws." 2008 Ariz. Sess. Laws, ch. 301, §§ 10, 119. The language for the definition was drawn from former A.R.S. § 13-604, 2007 Ariz. Sess. Laws, ch. 248, § 1, a statute that prescribed enhanced penalties for "[d]angerous... offenders" "if the dangerous nature of the felony is charged in the indictment or information and admitted or found by the trier of fact."
¶ 10 Since the legislature's reorganization of Arizona's sentencing statutes in 2008, the substance of this sentence enhancement provision is found in § 13-704 and is applicable to "a person ... who stands convicted of a felony that is a dangerous offense," as now defined in § 13-105(13). In 2011, the legislature amended § 13-907(D) to adopt the phrase "dangerous offense" for the purpose of the exclusions found in that subsection.
¶ 11 Section 13-907 provides, "Except as provided in subsection D of this section, every
¶ 12 The state maintains Copeland's argument below "incorrectly conflates the definitions of the term `dangerous' as it is used in Section[] ... 13-907(D)(1) ... and the term as it is used in the sentence enhancement scheme set forth in ... § 13-704." As suggested in the state's opposition to Copeland's motion below, this court previously has held a judgment's designation of an offense as non-dangerous, and therefore not subject to § 13-704, may not preclude consideration of whether the prior offense was subject to sentencing decisions based on other, similarly worded factors. For example, in Leon, an offender challenged a sentence enhancement imposed for committing dangerous offenses while on probation for "an offense resulting in serious physical injury or an offense involving the use or exhibition of a deadly weapon or dangerous instrument." 197 Ariz. 48, ¶¶ 1, 3, 3 P.3d at 969, quoting former A.R.S. § 13-604.02(A), 1997 Ariz. Sess. Laws, ch. 34, § 2 (now A.R.S. § 13-708(B)). Leon had been placed on probation for felony disorderly conduct committed by "recklessly handl[ing], display[ing] or discharg[ing] a deadly weapon or dangerous instrument," A.R.S. § 13-2904(A)(6), designated at sentencing as a non-dangerous offense. Id. ¶¶ 5-8.
¶ 13 We noted "[t]he designation of [Leon]'s disorderly conduct conviction as nondangerous at sentencing on that charge governed the sentencing range for that offense" pursuant to former § 13-604(F), and the "designation of the prior conviction as nondangerous, as opposed to dangerous, could affect the sentencing range under [former] § 13-604 on some offenses in the present case." Id. ¶ 5. But "[b]ased on the plain language" of former § 13-604.02(A), we concluded the legislature had "not limited the predicate for enhanced punishment under that provision to release or escape from confinement for offenses considered `dangerous'" under former § 13-604. Id. ¶ 6. Thus, by distinguishing the language used in the two statutes,
¶ 14 Similarly, in Montero v. Foreman, we found no error in the trial court's determination that a defendant convicted of a drug
¶ 15 Thus, in Leon and Montero, we expressly relied on distinctions between the definitions of "dangerous" in former § 13-604 and definitions of similar — but not identical — concepts found elsewhere in the criminal code. In contrast here, we see no basis for distinguishing a determination of whether an offense was "dangerous" pursuant to § 13-704, as entered in the judgment of conviction, and whether it was "dangerous" pursuant to § 13-907(D). Thus, contrary to the state's argument, there are no separate definitions to "conflate[]" in this case, because both statutory sections now rely on the common definition of dangerous offense in § 13-105(13). Although the state suggests a trial court may not rely on a judgment of conviction designating an offense as non-dangerous to conclude a defendant was not "convicted" of a dangerous offense, and so is not subject to the exclusion in § 13-907(D), it cites no authority to support this proposition. Nor has the state explained why the judgment of conviction designating Copeland's offense as non-dangerous is not a conclusive resolution of that issue, or why relitigation of the designation is not barred by principles of res judicata and collateral estoppel. See State v. Williams, 131 Ariz. 211, 213, 639 P.2d 1036, 1038 (1982) (collateral estoppel "`means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit'"), quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); State v. Little, 87 Ariz. 295, 304, 350 P.2d 756, 761-62 (1960) (principles of res judicata and collateral estoppel apply to criminal judgments).
¶ 16 At oral argument, the state reasoned that, as a policy matter, it would like the flexibility to reach an appropriate, negotiated resolution by a plea agreement in which it dismisses allegations of a dangerous offense — and therefore does not subject a defendant to the sentence enhancement features of § 13-704 — without losing the ability to assert the offender "was convicted of ... a dangerous offense" under § 13-907(D)(1), and therefore is ineligible to apply for a set-aside of the conviction. We are not persuaded the state loses much by our resolution of this issue.
¶ 17 As we already have explained, § 13-907(D) serves a gate-keeping function; it precludes those convicted of a dangerous offense from even applying to have the conviction set aside. A court's determination that an offender was convicted of a non-dangerous offense, based on that express finding in a judgment of conviction, merely permits the application. It does not end the inquiry, but opens it to any facts relevant to the court's broad discretion in considering the request to set aside a conviction, including any facts or issues the state raises in opposition. See, e.g., Key, 128 Ariz. at 420-22, 626 P.2d at 150-52 (court did not abuse discretion in considering nature of offense and short time since conviction in denying motion to set aside). From a policy perspective, we conclude the state suffers little prejudice from having to oppose the merits of an application to set aside a conviction for an offense designated at judgment as non-dangerous.
¶ 18 The respondent judge did not abuse her discretion in concluding Copeland was not ineligible, under § 13-907(D), to apply to set aside her conviction for attempted aggravated assault, which was designated a nondangerous
¶ 19 Accordingly, although we accept jurisdiction of the state's petition for special action, we deny the requested relief.
CONCURRING: PETER J. ECKERSTROM, Judge and J. WILLIAM BRAMMER, JR., Judge.
Leon, 197 Ariz. 48, ¶ 6, 3 P.3d at 969-70 (emphasis added in Leon).