Opinion
NO. 19-KA-280
01-15-2020
STATE of Louisiana v. Shawn M. GEORGE
COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, PUBLIC SAFETY SERVICES, OFFICE OF STATE POLICE, BUREAU OF CRIMINAL IDENTIFICATION AND INFORMATION, Jericha P. Remondet, Adrienne E. Aucoin
COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, PUBLIC SAFETY SERVICES, OFFICE OF STATE POLICE, BUREAU OF CRIMINAL IDENTIFICATION AND INFORMATION, Jericha P. Remondet, Adrienne E. Aucoin
Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst
JOHNSON, J.
Appellant, State of Louisiana, Department of Public Safety and Corrections, Public Safety Services, Louisiana Bureau of Criminal Identification and Information ("the Bureau"), appeals the January 23, 2019 judgment of the 24th Judicial District Court granting Shawn M. George's ("Defendant") motion for expungement of the record of his arrest and conviction for La. R.S. 14:35.3, domestic abuse battery, La. R.S. 14:35, simple battery, and La. R.S. 14:63, criminal trespass. For the following reasons, we affirm in part, vacate in part, and remand for further proceedings.
According to the trial testimony, Defendant forced his way into the Gretna, La. home of his then wife, Asharia Feloss, on July 11, 2005. Asharia shared the home with her mother, Joann Feloss, and her three children, a six-week-old baby boy and 22-month-old twins. Initially, Defendant banged on the front door saying "I want to see the kids." Asharia told Defendant that she was not letting him in and to call to make arrangements to see the children. Joann Feloss then observed Defendant under Asharia's car pulling things off, or pretending to do so. When Asharia opened the door to tell Defendant to get away from her car, he pushed past her and entered the home. The twins ran up to their father and he grabbed one of them. Joann Feloss was able to get the child away from his father, and she held on to both twins as the three adults continued to yell and push each other. At trial, Asharia testified that she popped Defendant's necklace and her mother left to call for help while she and Defendant continued to struggle. When Defendant noticed his mother-in-law calling for help, he grabbed the phone and slammed it on the floor. Defendant and Asharia continued to tussle as Defendant attempted to get the children away from their mother. Joann Feloss went into another room to retrieve Asharia's cell phone and call for help. By the time Defendant realized that she was gone and tried to get the phone from her, Joann Feloss was already on the phone with 911. Defendant then said that he was leaving, and although he still appeared to be angry at Asharia, she testified that she and her mother let their guard down. Defendant then suddenly ran back into the home and took the infant baby off of the couch and ran to his car with him. Asharia jumped on Defendant's lap so he could not drive off with the baby. They both got out of the car and a police officer appeared. Initially the police officer said that he would be unable to assist the family with resolving the situation because Defendant was the father of the baby, but the officer arrested Defendant once Asharia disclosed that Defendant had forced his way into her home. At trial, Asharia testified that she gave Defendant a glass of water while he awaited transport to jail.
At the September 17, 2007 trial at Second Parish Court for the Parish of Jefferson, Asharia, Joann Feloss, and Defendant all testified. Defendant's mother, Ms. Beverly Pierre, also testified. A tape of Joann Feloss's 911 call was admitted as evidence and played at the trial. Defendant testified that Asharia let him inside of the house but then refused to let him see the children. Defendant further testified that he was crying most of the time during the incident and that he just wanted to see his children. He admitted to struggling with his then wife and mother-in-law over the children, but said that he is not violent and did not push anyone. The trial court judge noted that Joann Feloss seemed "virtually hysterical" during the 911 call.
At the conclusion of the bench trial, Defendant was convicted of one count of La. R.S. 14:35 simple battery, one count of 14:35.3 domestic abuse battery under the Child Endangerment Statute, and one count of 14:63 criminal trespass. For the simple battery and criminal trespass charges, Defendant was sentenced to 60 days commitment in Jefferson Parish Correctional Center ("JPCC"), suspended, and six months active probation with special conditions – a $150.00 fine plus court costs. For the domestic abuse battery charge, Defendant was sentenced to six months in parish prison, all but 15 days suspended, 15 days to be served without the benefit of parole, probation or suspension of sentence at JPCC, the remaining balance of that sentence to be deferred, one year active probation with special conditions – the completion of 32 hours of community service and a Domestic Abuse Battery Prevention program required, a $500.00 fine, plus court costs to be paid, and prohibition from owning or possessing a firearm during the entirety of the sentence. Probation on the domestic abuse battery sentence was to run concurrent with probation on the simple battery and criminal trespass charges. The trial court judge also issued a stay away order in conjunction with the domestic abuse battery charge and warned Defendant that violation of that order was a felony offense. Parish Court Criminal/Traffic records show that, by November 28, 2007, all of Defendant's fines and court costs were paid and that, by March 26, 2008, Defendant had completed all programs and his probation status was converted to inactive and that record was finished. On September 13, 2018, Defendant filed pro se Motions for Expungement and to Set Aside Conviction (of domestic abuse battery, simple battery and criminal trespass) and Dismiss the Prosecution at the 24th Judicial District Court. On October 22, 2019, after a hearing to show cause, the district court granted Defendant's Motion to Set Aside the Conviction and Dismiss the Prosecution for purposes of expungement.
In response to the Motion for Expungement, both the Jefferson Parish Sheriff's Office and the Office of the District Attorney filed Affidavits of Response indicating that they had no opposition to Defendant's Motion for Expungement. The Bureau, however, filed an Affidavit of Response on October 3, 2018 opposing the Motion because La. C.Cr.P. art. 977(C)(2) states "[n]o person shall be entitled to expungement of a record ... [for t]he misdemeanor conviction [ ] for domestic abuse battery." The Bureau stated in its affidavit that if Defendant's pending Motion to Set Aside Conviction and Dismiss Prosecution was granted, and the required fee was paid, then the Bureau only objected to expungement of the domestic abuse battery arrest and conviction. The Bureau's Affidavit requested a contradictory hearing also.
The district court then issued an Order on October 26, 2018 that stated if the district attorney, the arresting law enforcement agency, or the Bureau opposed the Motion for Expungement, then that agency should file a motion within 60 days of the service of said order, but also that no contradictory hearing shall be required as evidenced by the "Affidavits of No Opposition" executed by the named agencies, and attached to the order. The Bureau never received notice of a contradictory hearing date and the district court judge granted Defendant's Motion of Expungement for all three charges on January 23, 2019. The Bureau then filed a motion for the instant appeal on February 22, 2019. There has been no response from Defendant to date.
LAW AND ANALYSIS
On appeal, the Bureau assigns as error the trial court's failure to set a contradictory hearing as requested on its Affidavit of No Response and required by La. C.Cr.P. art. 980, and the grant of Defendant's motion for expungement of La. R.S 13:35.3 domestic abuse battery. "Questions of law involving the correct interpretation of legislation are reviewed de novo, without deference to the legal conclusions of the trial court." State v. Merrill , 14-530 (La. App. 3 Cir. 6/11/14), 140 So.3d 1237, 1239, writ denied, 14-1227 (La. 9/19/14), 149 So.3d 249, citing Durio v. Horace Mann Ins. Co. , 11-0084 (La. 10/25/11), 74 So.3d 1159, 1168. "Whether a trial court was legally correct in its interpretation and application of the felony expungement statute is reviewed de novo to determine whether the lower court was legally correct." Id.
The current laws governing expungement, La. C.Cr.P. arts. 971 – 995 were enacted in 2014. See La. C.Cr.P. arts. 971 - 995. The Louisiana Bureau of Criminal Identification and Information may object to a motion of expungement. La. C.Cr.P. arts. 979 and 980(B)(2). "[I]f the Louisiana Bureau of Criminal Identification and Information objects to the granting of the motion to expunge a record, it shall file an affidavit of response with reasons for the objection in the record with service to the defendant within sixty days from the date of the service of the motion." La. C.Cr.P. art. 980(B)(2). Any objection timely filed shall have a contradictory hearing and the district attorney or an objecting party shall request that the matter be set for a contradictory hearing. La. C.Cr.P. art. 980(D). A notice of hearing shall be served on the defendant and the district attorney of the parish of conviction, the Louisiana Bureau of Criminal Identification and Information, and the arresting law enforcement agency. La. C.Cr.P. arts. 979, 980(D).
La. C.Cr.P. art. 996 was added in 2015.
The Bureau filed their Affidavit of Response and Opposition to the Motion for Expungement (filed by Defendant on September 13, 2019) with Reasons timely on October 3, 2019. Upon review of the record and La. C.Cr.P. art. 980, we find that the Bureau's Affidavit indicating their opposition, with reasons, and requesting a contradictory hearing was sufficient, and the district court committed error when it did not set the matter for a contradictory hearing and serve all parties with the date of that hearing. Instead, the trial court ordered the Bureau to file a motion within 60 days if it objected to the Motion for Expungement.
The Bureau's Affidavit explained that its objection was only regarding the expungement of record of arrest and misdemeanor conviction of La. R.S. 14:35.3, domestic abuse battery, which is explicitly prohibited by law, and the fee waiver granted to Defendant. La. C.Cr.P. arts. 977(C)(2), enacted in 2014, states "No person shall be entitled to expungement of a record [if t]he misdemeanor conviction was for domestic abuse battery, which was not dismissed pursuant to Code of Criminal Procedure Article 894(B)." See H.B. 55, 2014 Reg. Sess. (La. 2014). La. C.Cr.P. art. 977(C)(2) was revised the following year to remove the exception for domestic abuse battery misdemeanor convictions that were set aside and prosecutions dismissed pursuant to La. C.Cr.P. art. 894. See S.B. 27, 2015 Reg. Sess. (La. 2015). Had Defendant attempted to set aside his conviction and obtain an expungement after completion of his sentence and probation in 2008 under La. R.S. 44:9(E)(3)(a), the law governing expungement at the time, he may have been successful. See La. R.S. 44:9 (repealed 2015). La. R.S. 44:9(E)(3)(a) authorized courts to order the expungement of the record of a misdemeanor conviction dismissed pursuant to Article 894 of the Code of Criminal Procedure. State v. Cardenas , 13-2982 (La. 7/1/2014); 145 So.3d 362, 367. La. C.Cr.P. art. 894(B)(1) provided for setting aside convictions and dismissing the prosecution when the sentence was deferred and no other criminal charges were pending at the end of the period of deferral. Id. See La. C.Cr.P. art. 894. In 2010, the Legislature amended La. R.S. 44:9 to provide a pathway to expungement for those persons who could not take advantage of the set aside provided by La. C.Cr.P. art. 894(B). Cardenas , supra at 367-68. Because of subsequent amendments in the Senate before the final bill passed, from June, 2010 until it was repealed in 2015, under La. R.S. 44:9, misdemeanor convictions could be expunged five years after the finality of conviction and sentence, but crimes involving sexual acts or acts of domestic violence were excluded. Id.
In State v. Cardenas , the defendant was involved in an incident with his wife in the presence of his minor child and charged with domestic abuse battery in 2006. Id. at 363. After a 2007 bench trial, the defendant was sentenced to six months imprisonment, all but 60 days suspended, incarcerated at home, and one year of active probation with special conditions. Id. The defendant successfully completed his probation in 2010 and thereafter filed a motion to reconsider sentence. Id. The trial court set aside his conviction and dismissed the prosecution under La. C.Cr.P. art. 894 in 2011. Later that year, the defendant filed an Expungement form. Id. The district court granted that motion also. The district court issued two orders in September 2012. The first order directed the named parties to " ‘expunge any and all public records of the arrest and disposition ... the date of arrest being on or about July 19, 2006, and the disposition of these charges namely, DOMESTIC ABUSE BATTERY WITH CHILD ENDANGERMENT (MISDEMEANOR[ ]’ ". Id. The second order directed the named parties to only expunge the record of the defendant's arrest on July 19, 2006. Id.
The State appealed to the First Circuit. Id. at 364. The First Circuit declined to review the judgment granting Cardenas's motion to reconsider, but affirmed the district court's expungement order in a split-panel decision. Id. The Louisiana Supreme Court reversed the First Circuit's decision and vacated the district court's orders of expungement. Id. at 369. In its analysis leading to the decision to vacate the orders of expungement, the Louisiana Supreme Court applied La. R.S.44:9(A)(5), the law at the time the district court issued their expungement order and the law at the time of their decision. Id. at 368.
The Cardenas court acknowledged that La. C.Cr.P. art. 977 (which allowed expungement of domestic battery abuse misdemeanor convictions dismissed by La. C.Cr.P. art 894(B) until June 23, 2015 (as a result of 2015 La. S.B. 27)) would be the law a month from their decision, but expressed no opinion as to "whether [Cardenas would] be entitled to expungement of his record of arrest and conviction for domestic abuse battery under [that] latest expression of legislative will."
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This Court, in turn, will apply the current law governing expungement; the same law in effect at the time the district court granted Defendant's Motion for Expungement. La. C.Cr.P. art. 977(C)(2) expressly forbids the expungement of domestic abuse battery misdemeanor convictions. Therefore, we find that the district court erred in the instant case by granting Defendant's motion and ordering the expungement of Defendant's record with regards to the domestic abuse battery arrest and conviction records. To sum, we also find that the district court committed error when it failed to set a contradictory hearing and serve notice on all parties in response to the Bureau's timely filed request for a contradictory hearing.
DECREE
For the foregoing reasons, we find that the district court erred when it failed to set a contradictory hearing in response to the Bureau's Affidavit of Opposition. The district court also erred when it granted the motion to expunge Defendant's La. R.S. 14:35.3, domestic abuse battery arrest and conviction records, in violation of La. C.Cr.P. art. 977(C)(2). Accordingly, the part of the expungement order granting the expungement of the arrest and conviction records related to the La. R.S. 14:35.3, domestic abuse battery charge is reversed, and expungement of those records is denied. This matter is remanded to the district court for correction of the expungement order, consistent with this opinion, to be served on all parties.