[00:00:22] Speaker 04: Next case is Angel Canava versus DHS, file 153083. [00:00:32] Speaker 04: And Mr. Calle, is it? [00:00:34] Speaker 04: Calle, yes, sir. [00:00:36] Speaker 04: Calle. [00:00:36] Speaker 04: Yes, your honor. [00:00:39] Speaker 03: If it please the court, my name is Jim Calle. [00:00:41] Speaker 03: I represent the petitioner, Mr. Canava, in this case. [00:00:45] Speaker 03: The underlying issue, I think, that is essential for determination of this case is whether or not ARS 13604A [00:00:51] Speaker 03: applies in this case. [00:00:53] Speaker 03: I say that because that is the reason the arbitrator found that Mr. Canava had been convicted of a felony and ultimately... If it does apply, then do you agree that he's convicted of a felony for purposes of this federal and legal statute? [00:01:08] Speaker 03: Yes. [00:01:09] Speaker 03: Okay. [00:01:09] Speaker 03: If it does apply, by virtue of the wording of the statute itself, a condition preceding for its application is that the defendant has to be convicted of a felony. [00:01:18] Speaker 02: My argument today... You seem to be arguing in some places that there ought to be a federal standard for what's a felony rather than to look to state law. [00:01:28] Speaker 02: And I'm wondering how that helps you, because if I understand what a felony is for federal criminal purposes, this would be a felony because you could get imprisonment of more than six months, right? [00:01:42] Speaker 03: Your Honor, I disagree with you in reference to the fact that I'm trying to use some sort of federal standard. [00:01:47] Speaker 03: I do not. [00:01:47] Speaker 03: I think that it is appropriate that the- It's a state standard. [00:01:50] Speaker 03: It is a state standard. [00:01:51] Speaker 03: Under 5 USC 7371, they have to look to the underlying state standard for a definition of a felony. [00:01:58] Speaker 03: However, I disagree with you in terms of whether or not, under the facts of this case, Mr. Canava would have been subject to a felony offense. [00:02:06] Speaker 03: Under the statute 13604A, it requires, as we just discussed, [00:02:11] Speaker 03: that a person be convicted of a felony for it to be applied. [00:02:15] Speaker 03: My argument today is that under the plea in this case, even if 13604A did not exist, this plea would be valid and enforceable without reference at all to the statute. [00:02:28] Speaker 03: And let me walk you through this plea agreement. [00:02:32] Speaker 03: If you go to the joint appendix on pages 168 and 169, if I walk you through the specific language of this plea, [00:02:41] Speaker 03: I think the court will ultimately come to agreement with me that whether or not 13604A even existed, this plea is valid. [00:02:51] Speaker 03: I'm sorry, it is joint exhibit, page 168 and 169. [00:02:59] Speaker 03: If we start with the charge itself, amended count one, unlawful imprisonment by strangulation, domestic violence, a class six, undesignated offense, it is not a felony. [00:03:09] Speaker 03: It cannot be an undesignated offense and a felony at the same time. [00:03:13] Speaker 05: How would this plea agreement look different if it were a 13604 plea agreement? [00:03:18] Speaker 05: Would it just include the word felony? [00:03:20] Speaker 03: Yes, Your Honor. [00:03:20] Speaker 03: And in fact, in the case I cited, State versus Arana, that's exactly, that's precisely what took place. [00:03:27] Speaker 03: In that case, the Arizona Supreme Court, Justice Martone, referenced a case where the predecessor statute to 13604A applied. [00:03:36] Speaker 03: It was 13702. [00:03:37] Speaker 03: In that case, this person who had been charged with a class 3 theft ultimately pled to, quote, a classic open-ended felony, unquote. [00:03:48] Speaker 03: That is the difference between what the agency is arguing and what the arbitrator relied upon and what we are arguing. [00:03:55] Speaker 04: Aside from 13604, plea agreement says in special terms, the defendant agrees that the offense should not be designated a misdemeanor for the entire period of probation. [00:04:08] Speaker 04: Doesn't that mean felony? [00:04:09] Speaker 03: Absolutely not, your honor. [00:04:11] Speaker 03: In this particular case, if you read the entirety of all of the language, it represents three possible states for this offense. [00:04:17] Speaker 03: One is a misdemeanor, one is a felony, and one is undesignated. [00:04:22] Speaker 03: And it is that middle state in which Mr. Canava, at the time of the agency's action, was in when they decided that five USC 7371 applied. [00:04:33] Speaker 03: In fact, let me touch on a couple of things. [00:04:39] Speaker 05: Throughout this plea agreement, I was talking about felonies. [00:04:43] Speaker 05: I mean, I understand your argument, but in the probation portion, in Part B, it talks about the available term for probation of a Class 6 felony is three years. [00:04:53] Speaker 05: This all reads like it's a plea agreement under 13604, which allows a felony conviction or a guilty plea to be non-designated, a probation, [00:05:03] Speaker 05: is fulfilled and then it will be changed to a misdemeanor. [00:05:06] Speaker 05: You don't need to do any of that if you're pleading guilty to a misdemeanor because you're pleading guilty to a misdemeanor. [00:05:12] Speaker 03: Your Honor, I would agree. [00:05:13] Speaker 05: Why would you ever have this middle class that you're talking about? [00:05:17] Speaker 05: The middle class is I'm pleading guilty to an undesignated felony offense that if I complete my probation will be re-designated. [00:05:25] Speaker 03: No, I disagree. [00:05:26] Speaker 03: It will be designated. [00:05:28] Speaker 03: You know, the difference is this. [00:05:30] Speaker 03: the prosecutor and ultimately the courts by their agreement are essentially saying, we're going to give you a chance. [00:05:36] Speaker 03: And this is an essential point. [00:05:38] Speaker 03: In Arizona, a person is convicted, they are convicted [00:05:43] Speaker 03: of a felony or misdemeanor. [00:05:44] Speaker 05: So this is what I think I was trying to get at. [00:05:50] Speaker 05: First of all, 13604 doesn't seem to contemplate the situation you're talking about. [00:05:55] Speaker 05: You're talking about some other situation where you could just plead guilty to some completely undesignated to be determined at a later date offense. [00:06:05] Speaker 05: I don't see any statutory support beyond kind of your general allegations about, you know, the way criminal stuff works, that that's even permissible under Arizona law. [00:06:17] Speaker 05: All that seems permissible is [00:06:19] Speaker 05: you can plead to an undesignated felony offense. [00:06:21] Speaker 05: But even if you're right, why would people pleading guilty to this kind of offense that is normally designated as potentially a felony be allowed to be treated differently in Arizona because of your unique view of the statute as opposed to any other state where this would clearly be a felony plea? [00:06:42] Speaker 03: Your Honor, this is a decision by a prosecutor and a superior court. [00:06:47] Speaker 03: to allow not only Mr. Canava, a law enforcement agent, but also entire classes of other people, lawyers, accountants, pilots, who if they plead guilty to an offense under Arizona law that is a felony, they are now convicted of that offense. [00:07:03] Speaker 03: And if they are convicted of that offense, that can have huge consequences on their ability to continue in their chosen careers. [00:07:10] Speaker 03: This plea, which is outside [00:07:13] Speaker 03: of 13604A allows not only Mr. Canava but anyone that also pleads in this specific fashion to avoid the felony conviction. [00:07:24] Speaker 03: Your Honor, the ability to do this is pursuant to Arizona rule of criminal procedure 17.4, which is very broad. [00:07:34] Speaker 03: The Supreme Court has said that the parties are able to negotiate on and reach agreement on any aspect of the case. [00:07:41] Speaker 03: And this is such a [00:07:43] Speaker 03: a well-accepted doctrine, there were only two cases that I could find that even questioned the breadth of the statute. [00:07:50] Speaker 03: And I cited both of those, State v. Solano and State v. Friedrich. [00:07:54] Speaker 05: If this paragraph 1 had the word felony between undesignated and offense, you would consider this a plea agreement under 604. [00:08:05] Speaker 03: Absolutely, Your Honor. [00:08:07] Speaker 05: And the arbitrator looked at this and determined that that was essentially just a typo. [00:08:12] Speaker 05: Isn't that a question that the arbitrator looks at and that we defer to? [00:08:16] Speaker 05: I mean, this seems, every other portion of this seems like it was meant to be a 604 plea agreement. [00:08:22] Speaker 05: And it left out one word in one place. [00:08:25] Speaker 04: I disagree, Your Honor. [00:08:25] Speaker 04: And the plea agreement says that this is a class 6 offense. [00:08:29] Speaker 04: And this is obviously undesignated, but it's a class 6 offense. [00:08:34] Speaker 03: Your Honor, if you look at both that word, the class 6, and also the fact that there is a rubric for [00:08:41] Speaker 03: Felony sentencing the reason you have to have this in here is for due process and notice Requirements if you're having a person pursuant to a plea agreement Created pursuant to Arizona rule of criminal procedure 17.4, which isn't cited here anywhere. [00:08:56] Speaker 05: I'm sorry, which isn't cited here No, your honor it is not why would we read it under that provision rather than the provision it appears to be under your honor 13604 [00:09:08] Speaker 03: A is not cited in this plea agreement. [00:09:10] Speaker 03: It is not cited in the change of plea agreement. [00:09:13] Speaker 03: It is not cited in the sentencing minute entry. [00:09:16] Speaker 03: 13604A is not cited anywhere in the proceedings. [00:09:20] Speaker 02: Is there such a thing as a class 6 misdemeanor? [00:09:23] Speaker 03: No, Your Honor. [00:09:24] Speaker 02: Well, that's the problem with the use of the word class 6, because it seems to necessarily imply that it's a felony. [00:09:32] Speaker 03: Your Honor, as I just mentioned, the reason why you ended up having to have Classics and also the felony rubric in here is because if you allowed a person to plead to an undesignated offense and you did not include this language and then subsequently you said, you know what, I'm going to designate this a felony, that defendant is going to have on appeal [00:09:50] Speaker 03: a very good due process argument that, hey, I didn't know I was going to be subject to a classic felony or felony. [00:09:55] Speaker 02: The problem is we don't need this and understand what it's meant to, but when the reference to class 6 necessarily is to a felony. [00:10:03] Speaker 03: Your Honor, if that was the only reference in here, then perhaps that would be a good argument. [00:10:09] Speaker 03: But if you look on page 1, you have references to the felony sentencing provisions. [00:10:14] Speaker 03: But then on page 2, you also have reference to the misdemeanor sentencing provisions. [00:10:19] Speaker 03: so yes but also the felony provisions only apply if he is actually designated as having been a felony and again [00:10:30] Speaker 03: The difference, as is illustrated in state versus Iran Act. [00:10:32] Speaker 05: See, I still don't understand your argument. [00:10:35] Speaker 05: I think you're keen on something that you think is unique to Arizona law that's going to make it special than any other country. [00:10:43] Speaker 05: What if in some other state you have a regime where you can issue a conditional guilty plea to a felony that would later be reduced to a misdemeanor if you complete your probation successfully? [00:10:56] Speaker 05: That would be covered by this federal statute, wouldn't it? [00:11:01] Speaker 03: I'm sorry, Your Honor. [00:11:02] Speaker 03: I don't feel like it's even appropriate for me to discuss another state's- Well, I'm asking you hypothetically. [00:11:07] Speaker 05: So hypothetically, instead of pleading to an undesignated offense, which doesn't have misdemeanor or felony attached to it, you plead, you enter a conditional plea guilty to a felony. [00:11:20] Speaker 05: But if you complete your probation, it's re-designated as a misdemeanor. [00:11:25] Speaker 03: That would be subject to the federal statute. [00:11:27] Speaker 05: And this is operating in the same exact way, because he's subject to felony penalties by the terms of this if he doesn't complete his probation sentence. [00:11:36] Speaker 03: I disagree. [00:11:37] Speaker 03: Your Honor, this court, above all other courts, deals in precision. [00:11:41] Speaker 03: Words have a meaning. [00:11:43] Speaker 03: This is a contract. [00:11:45] Speaker 03: If the count in here that he pled to said felony, [00:11:49] Speaker 03: as it does in state versus Irana, we wouldn't be here. [00:11:53] Speaker 05: This plea agreement makes him subject to a felony conviction if he doesn't fulfill the terms of his probation agreement. [00:12:00] Speaker 03: Yes, conditionally, if he doesn't complete. [00:12:04] Speaker 03: But sitting here, and importantly. [00:12:06] Speaker 05: That's the entire impetus of this federal statute, wasn't it? [00:12:09] Speaker 05: I mean, did you look at the legislative history? [00:12:12] Speaker 05: The whole point of this statute is somebody entered a conditional plea and was allowed to remain on government payrolls [00:12:19] Speaker 05: and subsequently retire as an LEO. [00:12:23] Speaker 05: So the conditional nature of the plea was what occasioned this. [00:12:26] Speaker 05: This is the same thing. [00:12:27] Speaker 05: This is a conditional plea that could subject him to felony. [00:12:31] Speaker 03: Your Honor, the 5 U.S.C. [00:12:33] Speaker 03: 7371 mandates a felony. [00:12:37] Speaker 03: It does not mandate a undesignated offense. [00:12:40] Speaker 03: It does not designate, you know, a misdemeanor. [00:12:42] Speaker 03: It mandates a felony. [00:12:44] Speaker 05: You agree it contemplates conditional pleas, though, don't you? [00:12:47] Speaker 03: Not by its words. [00:12:49] Speaker 05: Okay, well, did you look at the legislative history? [00:12:51] Speaker 03: Your Honor, I looked at the statute and the words of the statute. [00:12:54] Speaker 05: Well, I'm also looking at the legislative history to see what Congress's intent was in this situation that specifically caused the statute to be enacted was a conditional guilty plea. [00:13:05] Speaker 03: Your Honor, that might be the underlying congressional intent, but I think this court [00:13:10] Speaker 03: as well as the people that are practicing in front of this court, have to rely on the words of the statute. [00:13:14] Speaker 03: The statute says it has to be a felony. [00:13:17] Speaker 03: It doesn't say a conditional plea. [00:13:18] Speaker 03: It does not say an undesignated offense. [00:13:21] Speaker 03: It requires a felony. [00:13:23] Speaker 04: Your Honor. [00:13:24] Speaker 04: I will give you three minutes of rebuttal time. [00:13:26] Speaker 04: Thank you, Your Honor. [00:13:37] Speaker 00: May it please the court. [00:13:39] Speaker 00: Before delving into the intricacies of the Arizona law in this case, I'd like to start by explaining why, under federal law, Mr. Canava's offense is quite plainly a felony. [00:13:51] Speaker 00: And that's important because federal statutes, like the mandatory removal statute, are typically interpreted under federal law, pursuant to the Supreme Court's decision in Holyfield. [00:14:03] Speaker 00: And the general [00:14:04] Speaker 00: reasoning for that presumption applies strongly here. [00:14:07] Speaker 00: We want to have uniform application of federal laws and there are law enforcement agencies and law enforcement officers in all 50 states and there's no reason to think that Congress in this statute wanted removal to turn on potential anomalies or idiosyncrasies in state law. [00:14:26] Speaker 00: Certainly the mandatory removal statute is meant to be triggered [00:14:29] Speaker 00: by state convictions, but nothing in the statute says that Congress wants the term felony specifically to be interpreted pursuant to state law. [00:14:41] Speaker 05: And this court in Malder recently... So your view is, even if your friend's argument is right, that this is an undesignated offense, not under 13604, that it would still trigger this bar because it's the type of offense that is considered a felony under federal law. [00:14:59] Speaker 00: Precisely, yeah. [00:15:00] Speaker 00: And we disagree with regard to the application of state law, which I'll [00:15:04] Speaker 00: address in a moment, but the quite clear and straightforward analysis is that pursuant to federal law, this offense, federal law and sources like Black's Dictionary [00:15:16] Speaker 00: define felony as an offense that is punishable. [00:15:19] Speaker 02: Suppose that what happens is someone is convicted of a felony, but then that conviction is vacated and a misdemeanor conviction is substituted in using for the moment the federal definitions of felony and misdemeanor. [00:15:36] Speaker 02: Has that person at that point been convicted of a felony? [00:15:40] Speaker 00: Yes, and the focus in answering that question [00:15:44] Speaker 00: is what we tried to address in our 28-J letter, that the focus remains on the time of conviction, which, as this court explained in Mulder, is the time that the plea of guilty is entered or when the jury verdict of guilty is issued. [00:15:58] Speaker 00: So the question is, at that time, when the plea was entered, was that offense punishable by over a year of imprisonment? [00:16:06] Speaker 00: And under federal law, [00:16:08] Speaker 02: as the Ninth Circuit explained in Norbury and cited many other federal circuits. [00:16:18] Speaker 00: The statute expressly has that exception. [00:16:23] Speaker 00: But the fact that it expressly includes that exception shows that when there's not an express statutory provision... I don't think so. [00:16:36] Speaker 00: That would be... [00:16:37] Speaker 00: If there, perhaps if there is a finding of innocence, that would be tantamount to being reversed on appeal due to a finding of innocence. [00:16:43] Speaker 02: But uniformly, federal courts in interpreting- It's not that if the trial court vacates the conviction for whatever reason, that that's no longer a conviction of a felony, doesn't it? [00:16:54] Speaker 00: Well, Your Honor, the problem is that the mandatory removal statute refers to the point in which the person is convicted of a felony. [00:17:04] Speaker 00: And that is when the plea of guilty occurs. [00:17:07] Speaker 00: And after that happens, the agency is required by statute to remove the person five days after they receive notice of that conviction. [00:17:14] Speaker 00: And as this court held in Mulder, conviction is different than sentencing. [00:17:18] Speaker 00: The statute doesn't say the person must be removed five days after sentencing. [00:17:22] Speaker 00: It says five days after the conviction notice date. [00:17:25] Speaker 02: So under- I can't believe that Congress intended that if the conviction is vacated post-conviction relief by the trial court, that that counts as a felony. [00:17:33] Speaker 02: That just doesn't make any sense. [00:17:34] Speaker 00: I think the question in a case like that would be, is this tantamount to being reversed on appeal? [00:17:40] Speaker 05: So if the conviction was vacated due to errors or insufficiency of evidence or something like that, would you agree that it shouldn't be considered a conviction? [00:17:53] Speaker 05: I just wonder, are you trying to distinguish between situations where somebody can enter a guilty plea [00:18:01] Speaker 05: serve a probationary period, and then in some states, instead of having it re-designated a misdemeanor, they may revoke it altogether and erase it. [00:18:11] Speaker 05: In those situations, that's not a finding to give. [00:18:14] Speaker 05: In a sense, that's a fulfillment of probation terms. [00:18:16] Speaker 00: Precisely, Your Honor. [00:18:17] Speaker 00: And many states have this kind of flexibility in sentencing analyses. [00:18:21] Speaker 05: But there's a different situation, I think, that we're worried about, which is if somebody is convicted by a jury of a crime, and there are some kind of post verdict motions, and the district court says, no, there's insufficiency of evidence, or there are some procedural layer, or the like, I'm going to vacate that conviction. [00:18:40] Speaker 05: Would the statute still apply in those circumstances, which directly go to whether the conviction itself was valid, not whether the person served some probationary terms that allowed the conviction to be later vacated? [00:18:54] Speaker 00: Perhaps one way to answer this question is to address what other federal courts have held when interpreting the term conviction in other federal statutes. [00:19:04] Speaker 00: As I mentioned, in Norbury, the Ninth Circuit explained that convictions that have been deferred, expunged, [00:19:10] Speaker 00: or even dismissed are still regarded as convictions for purposes of, for example, sentencing enhancement. [00:19:18] Speaker 00: But presumably there would be a different sort of analysis if this was [00:19:24] Speaker 00: if this was overturned on the basis of an underlying defect or innocence in the actual plea. [00:19:31] Speaker 00: Of course, in a plea of guilty, there are certain protections that may not happen. [00:19:35] Speaker 02: If it was the case... Nothing has happened here. [00:19:37] Speaker 02: I mean, so far as you know, there's been no action by the trial court to designate this as a misdemeanor, right? [00:19:47] Speaker 00: Not as far as we're aware. [00:19:48] Speaker 00: And because of the plea agreement expressly providing that [00:19:51] Speaker 00: It's not even eligible for potential misdemeanor treatment for the full three years. [00:19:55] Speaker 00: I would imagine it has not yet been altered in any way. [00:19:59] Speaker 00: In this case, there really is none of that concern presented. [00:20:05] Speaker 00: In this case, Mr. Cronova pled guilty to this offense. [00:20:10] Speaker 00: And under federal law, at the time that he pled guilty, the very first page of his plea agreement provides that the offense, which at JS 168, [00:20:20] Speaker 00: provides that the offense is punishable. [00:20:23] Speaker 00: The maximum sentence is 1.5 years. [00:20:25] Speaker 00: The aggravated sentence is two years. [00:20:27] Speaker 00: So this is certainly over the one-year limit that under Black's Law Dictionary and the federal statute, that would qualify as a felony. [00:20:38] Speaker 00: And this court, again to cite to Mulder in footnote three, [00:20:43] Speaker 00: of Mulder. [00:20:43] Speaker 00: The court, again, did not resolve whether state or federal law applied, but it did note that it doubted that Congress would have intended state law to define the issue in that case. [00:20:54] Speaker 00: And similarly here, the best result is to interpret this under the straightforward analysis of federal law. [00:21:01] Speaker 00: And just one more note about Mulder is that the court repeatedly relied on Black's law dictionary in determining the ordinary meaning of terms in that statute. [00:21:09] Speaker 00: And here, the Black's Law Dictionary certainly favors the ordinary meaning of felony as an offense punishable by over one year. [00:21:18] Speaker 00: Now, if I may, I'll turn to the state application, which also requires affirmance of the arbitrator's decision that Mr. Cronawa was convicted of a felony. [00:21:32] Speaker 00: The best place to start here is the definition of what Mr. Cronawa's offense was. [00:21:38] Speaker 00: He was convicted of [00:21:39] Speaker 00: unlawful imprisonment by strangulation, which under 13-1303C, quote, unlawful imprisonment is a class six felony unless five circumstances apply, none of which are mentioned in the plea agreement. [00:21:54] Speaker 00: And if these five facts apply, then it can be a class one misdemeanor. [00:21:59] Speaker 00: These are that the victim is released voluntarily by the defendant without physical injury in a safe place before arrest. [00:22:07] Speaker 00: Now, none of these facts are mentioned in the plea agreement, and as the court has already noted, instead the plea agreement refers to this as a class six undesignated offense. [00:22:19] Speaker 00: There are only three classes of misdemeanors, no classes of undesignated offenses, because the undesignated statute under 604 is simply a sentencing procedure. [00:22:32] Speaker 00: It is not a separate class of [00:22:35] Speaker 00: of offense. [00:22:36] Speaker 00: So 604 provides that if it's once an individual has been convicted of a Class 6 felony, it applies if the judge believes it would be unduly harsh to sentence. [00:22:48] Speaker 00: So here again we have this dichotomy between conviction and sentencing. [00:22:52] Speaker 00: Mr. Canava's point really is that we have to wait and find out what the Mr. Canava is going to be sentenced for before the agency can remove him under this provision. [00:23:04] Speaker 00: But again, the mandatory removal provision focuses on the conviction, not the ultimate sentence. [00:23:10] Speaker 00: And under both federal and state law, the definition of a felony is the maximum possible term of imprisonment for which the offense is eligible. [00:23:22] Speaker 00: So here under Arizona law, as we note in the brief, the exact sentencing rubric on page 1 is the class 6 felony sentencing rubric. [00:23:33] Speaker 00: So certainly, as the court has already noted, the structure of the plea agreement does reflect the Section 604, the undesignated provision. [00:23:43] Speaker 00: And as Mr. Cronova has conceded, therefore, this offense is a felony under state law as well. [00:23:50] Speaker 00: So for these reasons, we respectfully request that the court affirm the arbitrator's decision upholding the removal. [00:23:58] Speaker 04: Thank you, Ms. [00:24:00] Speaker 04: Vaughan. [00:24:01] Speaker 04: Mr. Kaie has some time left to rebuttal. [00:24:05] Speaker 03: Three minutes, Your Honor? [00:24:07] Speaker 02: Yes, three minutes. [00:24:08] Speaker 02: Nothing has happened in the trial court to change the statuses put in the record here. [00:24:15] Speaker 03: Your Honor, there's nothing in the record, but the fact is I've checked, and he remains on probation. [00:24:21] Speaker 03: Your Honor, for this court to uphold the decision in this case, this court has to find that ARS 604A actually applied, because that is the basis by which the arbitrator found that Mr. Kanaba was convicted of a felony. [00:24:35] Speaker 03: And again, getting back to this language, there is a difference. [00:24:39] Speaker 03: The Arizona Supreme Court found that in that particular case, State versus Irana, it made a difference when a person actually pled to a felony as opposed to an undesignated offense. [00:24:49] Speaker 03: Words matter. [00:24:51] Speaker 03: This is a contract. [00:24:52] Speaker 03: The plain meaning of the words should carry some weight with this court. [00:24:57] Speaker 03: In terms of Mulder, the case cited by the agency, [00:25:01] Speaker 03: I took that case to mean that it is the time of conviction as opposed to sentencing. [00:25:06] Speaker 03: We agree with that. [00:25:07] Speaker 03: That's why we're making the arguments here today. [00:25:09] Speaker 03: You have to look at this plea, though. [00:25:12] Speaker 03: We don't feel like the fact of felony sentencing provisions being in the plea agreement as being dispositive of whether or not he was a felony. [00:25:21] Speaker 03: It would be true if he had pled to something that was actually called a felony. [00:25:26] Speaker 03: But because he pled to something that was undesignated, it's conditional. [00:25:31] Speaker 03: And in fact, if you look on the other side of the page, there's the misdemeanor statutes as well. [00:25:35] Speaker 03: We're not arguing here, and I'm not arguing here today, that in fact, oh, this must be a misdemeanor because the misdemeanor provisions of sentencing are included within his plea agreement. [00:25:43] Speaker 03: That would be inappropriate. [00:25:44] Speaker 03: It would be inappropriate because what he pled to was something that was not designated. [00:25:49] Speaker 03: It's only at the time that it's designated that we would know for sure whether or not he would be subject to felony sentencing provisions or, conversely, misdemeanor sentencing provisions. [00:26:02] Speaker 03: The state argues that there was no factual findings regarding ARS 13, 1303 in reference to this being a misdemeanor. [00:26:11] Speaker 03: That statute actually is important to our argument. [00:26:14] Speaker 03: Whereas 13604 often provides the statutory basis in which a Class 6 felony by definition can be considered a misdemeanor. [00:26:24] Speaker 03: In this particular case, this statute defining the offense itself provides for it to be a misdemeanor. [00:26:31] Speaker 03: Now, the agency faults us for not having factual findings within the record to establish that it is a misdemeanor. [00:26:38] Speaker 03: But the fact of the matter is that if you look at the plea, the plea actually incorporates by its own reference the factual basis provided by the defendant and the grand jury preliminary hearing transcript. [00:26:53] Speaker 03: The agency had the burden, if they wanted to raise this as an issue, to provide those transcripts and the materials provided [00:26:59] Speaker 03: when they went to the deciding official to seek my client's removal. [00:27:03] Speaker 03: They did not do that. [00:27:04] Speaker 03: And lastly, I would ask this court to consider the presumption of regularity. [00:27:10] Speaker 03: If you have questions regarding what took place in the underlying proceedings, the presumption of regularity suggests that you must give credence to what you see, what is plainly said in the documents themselves. [00:27:26] Speaker 04: Thank you, Your Honor. [00:27:35] Speaker 01: All rise. [00:27:36] Speaker 01: The Honorable Court is adjourned until tomorrow morning at 10 o'clock a.m.