State v. Nunez

The Arizona Court of Appeals recently issued a memorandum decision in *State v. Nunez*, 1 CA-CR 24-0626, on July 2, 2026, which, in accordance with Arizona Rule of the Supreme Court 111(c), is not for official publication and holds no precedential value. This article examines the implications of such non-precedential decisions for legal practitioners in Arizona. While generally not citable as authority, Rule 111(c) permits their use under specific, limited circumstances, including for claim or issue preclusion, to assist the appellate court, or for persuasive value if issued after January 1, 2015, and no published opinion adequately addresses the issue. Understanding these nuances is crucial for navigating Arizona's appellate landscape and ensuring ethical and effective legal advocacy.

The recent issuance of *State v. Nunez*, 1 CA-CR 24-0626, by the Arizona Court of Appeals on July 2, 2026, serves as a timely reminder of the unique role and limitations of non-precedential memorandum decisions within Arizona's judicial system. The decision explicitly states, "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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE." This declaration underscores a critical aspect of appellate practice in the state, where a significant portion of judicial output is not intended to establish binding legal precedent.

Arizona's appellate courts, like many jurisdictions, distinguish between published opinions, which are precedential, and memorandum decisions, which are not. This distinction is codified primarily in Arizona Rule of the Supreme Court 111. Historically, Rule 111(c) strictly prohibited the citation of memorandum decisions, reflecting a policy aimed at managing judicial workload and allowing courts to resolve routine matters without the extensive analysis required for precedential opinions. This approach also provided a mechanism for appellate courts to explore various factual permutations in developing areas of law before solidifying a binding rule.

However, effective January 1, 2015, Rule 111(c) underwent significant amendments, aligning Arizona with federal courts and other states that had previously banned the citation of unpublished decisions. The amended rule, along with corresponding changes to Arizona Rule of Civil Appellate Procedure 28 and Arizona Rule of Criminal Procedure 31.24, introduced specific, albeit limited, circumstances under which memorandum decisions may now be cited. These amendments sought to balance the need for judicial efficiency with the recognition that even non-precedential decisions can offer valuable insights or be relevant in particular contexts.

The *State v. Nunez* decision (1 CA-CR 24-0626) exemplifies a typical memorandum decision in a criminal appeal. In this case, Andres Alejandro Nunez appealed sentences imposed after a remand for resentencing. His counsel filed an *Anders* brief, certifying that no arguable question of law that was not frivolous could be found after a diligent search of the record. The Court of Appeals, after reviewing the record, affirmed Nunez's sentences, with a modification to reflect one additional day of presentence incarceration credit. This outcome, a routine affirmation with a minor adjustment, highlights the nature of many memorandum decisions: they often address fact-specific applications of established law without breaking new legal ground.

Despite their non-precedential status, Arizona Rule of the Supreme Court 111(c)(1) now permits the citation of memorandum decisions in three narrowly defined scenarios. First, they may be cited "to establish claim preclusion, issue preclusion, or law of the case." This exception acknowledges the fundamental principles of finality and judicial economy, where a prior adjudication, even if non-precedential, can bind parties to specific findings or rulings in subsequent proceedings. Second, a memorandum decision may be cited "to assist the appellate court in deciding whether to issue a published opinion, grant a motion for reconsideration, or grant a petition for review." This allows practitioners to bring relevant, albeit non-binding, judicial reasoning to the attention of the court during its deliberative processes.

Crucially for broader legal analysis, Rule 111(c)(1)(C) permits citation for "persuasive value," but only if three stringent conditions are met: the decision must have been "issued on or after January 1, 2015"; "no opinion adequately addresses the issue before the court"; and "the citation is not to a depublished opinion or a depublished portion of an opinion." This 'persuasive value' clause is a significant departure from the previous outright ban, offering attorneys a limited avenue to reference unpublished judicial reasoning when published authority is scarce or unhelpful. However, the requirement that "no opinion adequately addresses the issue" places a high burden on the citing party to demonstrate the necessity of referring to a non-precedential source. Furthermore, any citation to a memorandum decision must explicitly indicate its status as such, and the citing party must provide either a copy of the decision or a hyperlink to where it can be obtained without charge. It is also important to note that Rule 111(c)(4) explicitly states that a party has no duty to research, review, analyze, or cite memorandum decisions.

For Arizona legal practitioners, *State v. Nunez* (1 CA-CR 24-0626) serves as a practical illustration of the ongoing stream of non-precedential memorandum decisions from the state's appellate courts. While these decisions do not establish binding law, the amended Arizona Rule of the Supreme Court 111(c) provides specific, limited pathways for their citation. Attorneys must exercise meticulous care when considering citing a memorandum decision, ensuring strict adherence to the rule's conditions, particularly the post-January 1, 2015 issuance date and the absence of adequate published authority on the issue.

The strategic use of memorandum decisions, primarily for their persuasive value in the absence of on-point published opinions, requires a thorough understanding of Rule 111(c) and its underlying policy. Practitioners should remain vigilant for new memorandum decisions that might offer persuasive insights into novel legal questions or unique factual scenarios, always remembering to clearly identify them as non-precedential and provide the required access to the document. The rule does not impose a duty to cite these decisions, but their judicious application, when permissible, can enhance legal arguments in specific, carefully considered contexts.