Opinion
NUMBER 2015 CA 1515
04-15-2016
STATE OF LOUISIANA v. OMAR GARCIA
Hillar C. Moore, III, D.A. Monisa L. Thompson, A.D.A. Baton Rouge, LA Attorneys for Appellant State of Louisiana David J. Rozas Baton Rouge, LA Attorney for Appellee Defendant - Omar Garcia
NOT DESIGNATED FOR PUBLICATION
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 04-12-0789 Honorable Donald R. Johnson, Judge Hillar C. Moore, III, D.A.
Monisa L. Thompson, A.D.A.
Baton Rouge, LA Attorneys for Appellant
State of Louisiana David J. Rozas
Baton Rouge, LA Attorney for Appellee
Defendant - Omar Garcia BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.
The State of Louisiana appeals a judgment of the district court expunging the public records of the arrest and disposition of charges against the defendant, Omar Garcia, in connection with his December 12-13, 2011 arrest for attempted second degree murder. For reasons that follow, we reverse the judgment of the district court and vacate the expungement order.
FACTUAL AND PROCEDURAL HISTORY
The defendant was arrested and charged with attempted second degree murder (a felony), on December 12-13, 2011, and eventually charged by bill of information number 04-12-0789 with attempted second degree murder of Josefina Coronel, a violation of La. R.S. 14:27 and 14:30.1. On May 23, 2013, he pled guilty to the amended charge of domestic abuse battery (a misdemeanor), a violation of La. R.S. 14:35.3. Pursuant to the provisions of La. C.Cr.P. art. 894, the district court deferred the imposition of sentence for a period of one year and placed the defendant on unsupervised probation for that one-year period, which included numerous special conditions. On January 22, 2014, the district court found that the defendant had completed all conditions for his probation, terminated his probation, and dismissed the conviction pursuant to La. C.Cr.P. art. 894, and the judgment of dismissal pursuant to La. C.Cr.P. art. 894 was signed by the district court on January 27, 2014.
At the pertinent time period herein, La. C.Cr.P. art. 894 provided, in pertinent part:
A. (1) Notwithstanding any other provision of this Article to the contrary, when a defendant has been convicted of a misdemeanor, except criminal neglect of family, or stalking, the court may suspend the imposition or the execution of the whole or any part of the sentence imposed, provided suspension is not prohibited by law, and place the defendant on unsupervised probation or probation supervised by a probation office, agency, or officer designated by the court, other than the division of probation and parole of the Department of Public Safety and Corrections, upon such conditions as the court may fix. Such suspension of sentence and probation shall be for a period of two years or such shorter period as the court may specify.
(2) When a suspended sentence in excess of six months is imposed, the court may place the defendant on probation under the supervision of the Department of Public Safety and Corrections, division of probation and parole, for a period of not more than two years and under such conditions as the court may specify.
* * *
B. (1) When the imposition of sentence has been deferred by the court, as authorized by this Article, and the court finds at the conclusion of the period of deferral that the defendant has not been convicted of any other offense during the period of the deferred sentence, and that no criminal charge is pending against him, the court may set the conviction aside and dismiss the prosecution. ...
(2) The dismissal of the prosecution shall have the same effect as an 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. Discharge and dismissal under this provision may occur only once with respect to any person during a five-year period. ...
C. Nothing contained herein shall be construed as being a basis for destruction of records of the arrest and prosecution of any person convicted of a misdemeanor.
The record does not reveal why a period of less than one year elapsed between the date of the guilty plea when defendant was placed on probation for one year and the date that the district court terminated the defendants' probation and dismissed the conviction pursuant to La. C.Cr. P. art. 894.
On February 18, 2014, Omar Garcia filed a motion for expungement, asserting that he was entitled to have the record of his arrest expunged. Both the State, through the District Attorney, and the Sheriff of East Baton Rouge Parish objected to the expungement of the misdemeanor domestic abuse battery conviction, arguing that it was improper under La. R.S. 44:9(A)(5)(b) because the conviction arose from circumstances involving an act of domestic violence. However, neither the State nor the Sheriff objected to the expungement of the defendant's arrest record for attempted second degree murder charges.
At the applicable time period herein, La. R.S. 44:9(A)(5)(b) provided that "[n]o person shall be entitled to an expungement if the misdemeanor conviction arose from circumstances involving a sexual act or act of domestic violence." This statute has since been superseded by La. C.Cr.P. art. 977(C)(2), which likewise does not permit the expungement of a misdemeanor domestic abuse battery conviction. See 2014 La. Acts, No. 145, § 1; and 2015 La. Acts, No. 151, § 1, eff. June 23, 2015.
See former La. R.S. 44:9(B).
On April 23, 2014, the district court signed a judgment/order of expungement finding that the defendant's request for expungement was proper and ordering that the defendant's record of both the arrest for attempted second degree murder and his conviction for domestic abuse battery be expunged. From this judgment/expungement order, the State has appealed, arguing that the district court erroneously granted the expungement of the domestic abuse battery conviction in violation of La. R.S. 44:9(A)(5)(b).
LAW AND DISCUSSION
At all applicable time periods herein, La. R.S. 44:9 provided as follows:
A. (1) Any person who has been arrested for the violation of a municipal or parish ordinance or for violation of a state statute which is classified as a misdemeanor may make a written motion to the district, parish, or city court in which the violation was prosecuted or to the district court located in the parish in which he was arrested, for expungement of the arrest record, under either of the following conditions:(Emphasis added.)
(a) The time limitation for the institution of prosecution on the offense has expired, and no prosecution has been instituted; or
(b) If prosecution has been instituted, and such proceedings have been finally disposed of by dismissal, sustaining of a motion to quash, or acquittal.
* * *
(5)(a) Any person who has been convicted for the violation of a municipal or parish ordinance, a traffic violation, or for violation of a state statute which is classified as a misdemeanor may make a written motion to the district, parish, or city court in which the violation was prosecuted or to the district court located in the parish in which he was arrested, for expungement of the arrest record if five or more years has elapsed between the date of the motion and the successful completion of any sentence, deferred adjudication, or period of probation or parole. Notwithstanding the provisions of [La. C.Cr. P. art.] 892.1 or 894, or any other provision of law to the contrary regarding the set aside of a conviction or the dismissal of a prosecution, an expungement shall occur only once with respect to any person during a five-year period, except in the case of a misdemeanor offense of operating a vehicle while intoxicated which may occur only once with respect to any person during a ten-year period.
(b) No person shall be entitled to an expungement if the misdemeanor conviction arose from circumstances involving a sexual act or act of domestic violence.
* * *
E. (3)(a) A court may order the destruction or the expungement of the record of a misdemeanor conviction dismissed pursuant to [La. C.Cr.P. art.] 894 of the Code of Criminal Procedure. ...
Thus, the State contends that under this statute, the defendant was not entitled to an expungement of the misdemeanor conviction for domestic abuse battery because the conviction arose from circumstances involving an act of domestic violence. The district court, noting the objection by the State and the Sheriff based on this statute, granted the expungement based on this Court's interpretation of the above statute in State v. L.C., III, 2013-0509 (La. App. 1st Cir. 11/26/13) (unpublished).
In State v. L.C., III, 2013-0509 at p.1, the defendant was arrested and charged with the misdemeanors of domestic abuse battery, a violation of La. R.S. 14:35.3, and domestic abuse child endangerment, a violation of La. R.S. 14:35.3(1), arising from an incident on July 19, 2006. A trial was held and the defendant was found guilty as charged. On November 14, 2007, the trial court sentenced the defendant and imposed numerous special conditions, which included a probationary period. After completion of the probationary conditions, the trial court terminated the defendant's probation upon the defendant's motion. The defendant subsequently filed a motion to reconsider sentence and requested application of La. C.Cr.P. art. 894. The trial court granted the motion and vacated, deferred, and dismissed the original sentence pursuant to La. C.Cr.P. art. 894. The defendant then requested expungement of his arrest record pursuant to La. R.S. 44:9, and the trial court granted the expungement related to the July 19, 2006 incident.
The State appealed the trial court's ruling on the same basis as this appeal, i.e., that the trial court improperly allowed a conviction involving domestic abuse battery to be expunged because La. R.S. 44:9(A)(5) did not permit expungement of domestic violence cases. The defendant argued that the expungement was proper under either La. R.S. 44:9(A)(1) or 44:9(E)(3), which contained no restrictions regarding domestic violence cases, because his case was dismissed pursuant to La. C.Cr. P. art. 894. This Court affirmed the ruling of the trial court.
However, after the district court issued its April 23, 2014 ruling granting the expungement of the defendant's records in this case, the Louisiana Supreme Court reversed this Court's opinion in State v. L.C., III. See State v. Cardenas, 2013-2982 (La. 7/1/14), 145 So.3d 362.
In State v. Cardenas, 145 So.3d at 369, the Supreme Court determined that La. R.S. 44:9(A)(5), and specifically (A)(5)(b), was the latest expression of the legislative will and that it superseded the earlier provisions of La. R.S. 44:9(A) and 44:9(E)(3)(a). The Supreme Court determined that under the then current law, a person may set aside a misdemeanor conviction and dismiss the prosecution once during a given five-year period under La. C.Cr.P. art. 894(B)(2), and he/she may obtain an expungement in the case of a misdemeanor conviction once during the same five-year period under La. R.S. 44:9(A)(5)(a). State v. Cardenas, 145 So.3d at 368. A conviction set aside under La. C.Cr.P. art. 894(B)(2), otherwise subject to expungement under La. R.S. 44:9(E)(3)(a), counts as the one conviction for purposes of La. R.S. 44:9(A)(5)(a); but within this five-year period marked out by the legislature, under La. R.S. 44:9(A)(5)(b), "[n]o person shall be entitled to an expungement if the misdemeanor conviction arise from circumstances involving a sexual act or act of domestic violence." Id. (Emphasis added). The Supreme Court also determined that under the "broad and unqualified language of La. R.S. 44:9(A)(5)(b)", the expungement of records—both of the arrest and/or the conviction—is not allowed in cases involving sexual acts or acts of domestic violence. As such, the Supreme Court determined that the trial court erred in expunging the defendant's records to any extent and vacated the orders of expungement in their entirety. State v. Cardenas, 145 So.3d at 369.
The provisions of La. R.S. 44:9(A) are not applicable herein because the defendant was not arrested on misdemeanor charges.
The Louisiana Supreme Court essentially adopted the reasoning of the dissenting opinion in State v. L.C., III. In other words, the Court determined that the general provision for expunging misdemeanor arrest records appeared in La. R.S. 44:9(A)(1)(a), when prosecution is not instituted, or (A)(1)(b), when prosecution is instituted but does not result in a conviction. See State v. Cardenas, 145 So.3d at 365-366 and 369. And, the general provision for expunging conviction records in misdemeanor cases when there has been a conviction subsequently set aside under La. C.Cr.P. art. 894 was La. R.S. 44:9(E)(3)(a). See Id. On the other hand, La. R.S. 44:9(A)(5)(a) specifically related to obtaining expungement of an arrest record after conviction of a misdemeanor and allows for expungement under certain conditions. See Id. Thus, the specific provision for expunging arrest records when a conviction had been entered was therefore La. R.S. 44:9(A)(5)(a), not (A)(1)(a) or (b); but under (A)(5)(b), no person shall be entitled to an expungement if the misdemeanor conviction arise from circumstances involving a sexual act or act of domestic violence. See Id.
In this case, the defendant pled guilty and was convicted of domestic abuse battery. Accordingly, under La. R.S. 44:9(A)(5)(b) and the holding of State v. Cardenas, 145 So.3d at 369, we must conclude that the defendant was not entitled to seek expungement of his conviction record. Therefore, we reverse the judgment of the district court and vacate its orders of expungement.
On appeal, the only argument presented by the defendant in support of upholding the decision of the district court, which was based on State v. L.C., III, is that the Louisiana Supreme Court's decision in State v. Cardenas, 145 So.3d at 360 is incorrect. However, as an intermediate appellate court, we are bound to follow this decision of the Louisiana Supreme Court.
CONCLUSION
For all of the above and foregoing reasons, the April 23, 2014 judgment of the district court is reversed and the orders of expungement contained therein are vacated.
All costs of this appeal are assessed against the defendant, Omar Garcia.
REVERSED; ORDERS OF EXPUNGEMENT VACATED.