Opinion
NO. 2017CA0694
02-21-2018
STATE OF LOUISIANA v. DAVID TROIA
Rachel M. Yazbeck David F. Gremillion New Orleans, Louisiana Counsel for Defendant/Appellee David V. Troia Warren L. Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana Counsel for Appellant State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana
Case No. 504707-1 The Honorable Raymond S. Childress, Judge Presiding Rachel M. Yazbeck
David F. Gremillion
New Orleans, Louisiana Counsel for Defendant/Appellee
David V. Troia Warren L. Montgomery
District Attorney
Matthew Caplan
Assistant District Attorney
Covington, Louisiana Counsel for Appellant
State of Louisiana BEFORE: McCLENDON, WELCH, AND THERIOT, JJ. THERIOT, J.
The appellant, the State of Louisiana, appeals the order of the Twenty-Second Judicial District Court to expunge the criminal record of the appellee, David Troia. This Court, on its own motion, issued a show cause order as to why the appeal should not be dismissed. Further, the State has filed a motion to supplement the appellate record. For the following reasons, we maintain the appeal, grant the motion to supplement, and reverse the judgment of the trial court.
RULE TO SHOW CAUSE
This Court, sua sponte, issued an order on May 22, 2017 due to an apparent defect in the trial court's order, as follows:
The February 6, 2017 "Order of Expungement of Arrest/Conviction Record" at issue is ambiguous as to the specific relief granted. It is not possible to determine, from that order alone, what arrest(s) and/or conviction(s) have been expunged. To be considered a final, appealable judgment, the specific relief should be determinable from the judgment without reference to any extrinsic source, such as the motion for expungement in this case. Board of Sup'rs of Louisiana State University and Agricultural Mechanical College v. Mid City Holdings, L.L.C., 2014-0506 (La. App. 4 Cir. 10/15/14), 151 So.3d 908.
The parties were ordered to show cause by briefs on or before June 21, 2017 whether the appeal should be dismissed for the aforementioned reason. This Court further remanded the appeal to allow the trial court to amend the judgment to cure the defect, if it chose to do so. This court ordered that any supplementation of an amended judgment be filed on or before June 21, 2017.
The State filed a one-page response to the order on June 16, 2017, in which it explained that it hoped the trial court would sign an amended judgment. This Court issued to the State a noncompliant brief and resubmission notice on July 7, 2017, giving the State until July 12, 2017 to file a proper brief that complied with Uniform Rule 2-12.4(B)(1) of the Courts of Appeal (attachment of judgment and written reasons required). Correspondence was then sent to the State by this Court on July 21, 2017 to disregard the July 7, 2017 notice, as it was issued in error.
Uniform Rule 2-12.13, which addresses non-compliant briefs, does not set forth the dismissal of the appeal as a penalty; instead it provides that "[b]riefs not in compliance with these Rules may be stricken in whole or in part by the court, and the delinquent party... may be ordered to file a new or amended brief." Thus, the sanction to be imposed for a non-conforming brief is left to the discretion of the court. Richardson v. North Oaks Hosp., 2011-1258 (La. App. 1 Cir. 2/13/12), 91 So.3d 361, 364. Although the State's brief did not particularly conform to the requirements of the Uniform Rules, we have exercised our discretion in allowing the State's short response to serve as a timely-filed brief. As appeals are favored and are not to be dismissed over mere technicalities, we maintain the appeal and proceed to the merits of the case. See Id.
MOTION TO SUPPLEMENT RECORD
The State has also filed with this Court a motion to supplement the appellate record, arguing specifically that Mr. Troia was not eligible for expungement because the trial court imposed a suspended sentence and did not defer the imposition of sentence. The State suggests that this factual question is best resolved by referral to the transcript of the sentencing hearing. As the current record contains only the transcript of the expungement hearing, the State offers a copy of the transcript of the August 15, 2011 sentencing hearing in this docket number, which includes Mr. Troia's guilty plea.
Louisiana Code of Civil Procedure article 2132 states:
A record on appeal which is incorrect or contains misstatements, irregularities or informalities, or which omits a material part of the trial record, may be corrected even after the record is transmitted to the appellate court, by the parties by stipulation, by the trial court, or by the order of the appellate court. All other questions as to the content and form of the record shall be presented to the appellate court.
An appellate court must render its judgment upon the record on appeal. La. C.C.P. art. 2164. Thibodeaux v. Rental Ins. Services, Inc., 2013-1947 (La. App. 1st Cir. 4/24/15), 2015 WL 1882456 *5 (unpublished), writ denied, 2015-1213 (La. 9/25/15), 178 So.3d 567. The transcript offered in the instant case is certified by the court reporter. We find the transcript is material to case. Therefore, the State's motion to supplement the record is hereby granted.
FACTS AND PROCEDURAL HISTORY
Mr. Troia filed a motion to set aside conviction and dismiss prosecution on August 16, 2016. He requested that the charge of possession of schedule I (heroin), for which he was arrested March 16, 2011, be dismissed pursuant to La. C.Cr.P. art. 893(E). Mr. Troia pled guilty to docket number 504707-1, possession of schedule I (heroin) on August 15, 2011. The trial court sentenced Mr. Troia to four years with the Department of Corrections, suspended the sentence and placed Mr. Troia on supervised probation for three years.
The State filed an opposition to Mr. Troia's motion, claiming Mr. Troia was not eligible for a dismissal of the prosecution. Mr. Troia subsequently filed a motion for expungement on October 18, 2016. On that motion, Mr. Troia checked "yes" for two charges that did not result in a conviction. The first, listed as "Item No. 1," was possession of drug paraphernalia, indicated as not prosecuted. The second, listed as "Item No. 2," was possession of schedule I CDS (heroin), indicated as dismissed, although it does not appear from the record that the charge had been dismissed by that date. Docket numbers were not included with the charges.
An order of expungement of arrest/conviction record was signed by the trial court on February 6, 2017, granting the motion for "Item(s) No. 1 & 2," with no other descriptive information concerning the charge. The judgment was later amended to reflect that the motion was granted as to "LSP Item # L1047299722nd JDC Case # 504707-1," which includes the docket number for the possession of heroin charge. The State has timely appealed.
The vague wording of the charges to be expunged in the original judgment was the basis for the rule to show cause order issued by this Court, as addressed above.
The possession of drug paraphernalia charge was apparently not included in the amended judgment, and is therefore not considered on appeal.
ASSIGNMENTS OF ERROR
The State alleges two assignments of error:
1. The trial court erred in granting the motion to set aside the conviction and dismiss the prosecution.
2. The trial court erred in granting the motion to expunge.
DISCUSSION
Only certain specified criminal arrest and conviction records may be expunged. Criminal records that do not meet the particular circumstances described under the applicable law are not eligible for expungement. Therefore, we must determine whether Mr. Troia's conviction of a felony offense, which was dismissed under the authority of La. C.Cr.P. art. 893, meets any of the criteria for expungement. See State v. Gerchow, 2009-1055 (La. App. 1 Cir. 3/11/10), 36 So.3d 304, 305-306.
Louisiana Code of Criminal Procedure article 893 gives guidelines for both suspension and deferment of sentences. Generally, only deferment of sentence allows the possibility of a subsequent expungement of a criminal record. Paragraph (E) of art. 893 states:
Subparagraphs (3) and (4) of La. C.Cr.P. art. 893(E) allow for the conviction to be set aside and the prosecution dismissed, whether the sentence was deferred or suspended, when the defendant successfully completes a drug court treatment program as discussed in subparagraph (3), or the intensive incarceration program as discussed in subparagraph (4). Neither of those circumstances are applicable in the instant case.
(1)(a) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction on a first offense noncapital felony under the conditions set forth in this Paragraph.
When a conviction is entered under this Paragraph, the court may defer the imposition of the sentence and place the defendant on probation under the supervision of the division of probation and parole.
(b) The court shall not defer a sentence under this provision for an offense or an attempted offense which is defined or enumerated as a crime of violence ... or a sex offense ... involving a child under the age of seventeen or for a violation of the Uniform Controlled Dangerous Substances Law punishable by a term of imprisonment of more than five years or for a violation of R.S. 40:966(A), 967(A), 968(A), 969(A), or 970(A).
(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person.
Unlike the provisions of La.C.Cr.P. art. 893(A) through (D) addressing suspension of sentence, Paragraph (E) allows a sentencing court to defer the imposition of sentence and expressly permit later dismissal of the prosecution, which has "the same effect of acquittal." State v. Taylor, 2011-0373 (La. App. 1 Cir. 3/23/12), 91 So.3d 1065, 1069. Paragraphs (A) through (D) of La. C.Cr.P. art. 893 contain no language that describes the conditions under which a suspended sentence may serve as a motion to dismiss the prosecution. See State v. Taylor, 2011-0375 (La. App. 1 Cir. 3/19/12), p. 3 (unpublished opinion); see also State v. Comardelle, 2006-0251 (La. App. 5 Cir. 9/26/06), 942 So.2d 1126, 1129. Where the trial court has the authority to dismiss the prosecution after a deferral of prosecution, the trial court lacks that authority after a suspension of the sentence. Therefore, expungement is not available in the case of a suspended sentence. See Taylor (unpublished opinion), p. 3; See also State v. Olivier, 38,520 (La. App. 2 Cir. 5/12/04), 874 So.2d 365, 367-68.
Mr. Troia is not eligible to have his conviction set aside due to the nature of his conviction. Heroin is classified as a schedule I controlled dangerous substance under La. R.S. 40:964(B)(11). Heroin is further classified in that statute as a narcotic substance. Pursuant to La. R.S. 40:966(C)(1) at the time of the offense and sentencing, possession of a substance classified as a schedule I narcotic drug shall be imprisoned at hard labor for not less than four years nor more than ten years. Because the sentencing range exceeds five years, a conviction of possession of heroin falls under the exception found in La.C.Cr.P. art. 893(E)(1)(b).
Louisiana Code of Criminal Procedure art. 893(E)(1)(b) states, in pertinient part:
The court shall not defer a sentence under this provision for an offense or an attempted offense that is designated in the court minutes as ... a violation of the Uniform Controlled Dangerous Substances Law that is punishable by a term of imprisonment of more than five years."
CONCLUSION
Mr. Troia was not entitled to an expungement of his arrest or conviction record for two reasons: his sentence was suspended and not deferred, and the nature of his conviction is statutorily excluded from being eligible for expungement. Therefore, the State's assignments of error have merit, and we accordingly reverse the trial court's order to expunge Mr. Troia's conviction.
DECREE
The instant appeal of the State of Louisiana is maintained, and the Twenty-Second Judicial District Court's order to expunge the arrest/conviction record of David Troia relating to docket number 504707-1 is hereby reversed. All costs of this appeal are assessed to appellee, David Troia.
APPEAL MAINTAINED. MOTION TO SUPPLEMENT GRANTED. ORDER REVERSED. McClendon, J., concurring.
I concur with the result reached. I write separately to note that this court issued a rule to show cause based on the insufficiencies in the February 6, 2017 "Order of Expungement/Conviction Record" for failing to include "what arrest(s) and/or convictions(s) have been expunged." The insufficiencies in the trial court's February 6, 2017, Order were remedied by an August 24, 2017 Amended Order, which contained the arrest and the conviction. Therefore, this appeal is properly before us.
I also find this case to be distinguishable from State v. A.R.W., 17-1162, p.8 (La.App. 1 Cir. 2/16/18), wherein the district court suspended the sentence, but effectively deferred the sentence at the same time by accepting the guilty plea pursuant to LSA-C.Cr.P. art. 881.1 and holding the minutes open. In the matter on appeal, although the district court referenced LSA-C.Cr.P. art. 881.1 at the time of sentencing, it did not hold the minutes open.