State of Louisiana v. Terrell J. Butler

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT
7-C 41

2023 CA 0224

STATE OF LOUISIANA

VERSUS

TERRELL J. BUTLER

SEP 15 2023
JUDGMENT RENDERED:

Appealed from The Nineteenth Judicial District Court
Parish of East Baton Rouge • State of Louisiana
Docket Number 02- 17- 0632 • Section S

The Honorable Tiffany Foxworth-Roberts, Presiding Judge

Hillar C. Moore, III COUNSEL FOR APPELLANT
District Attorney PLAINTIFF— State of Louisiana
Dylan C. Alge
Assistant District Attorney
Baton Rouge, Louisiana

Connor K. Junkin COUNSEL FOR APPELLEE
Baton Rouge, Louisiana PLAINTIFr— The Department of
Public Safety and Corrections,
Public Safety Services, Office of
State Police

Ashley M. Caruso COUNSEL FOR APPELLEE
Mary G. Erlingson THIRD -PARTY PLAINTIFF— The East
Baton Rouge, Louisiana Baton Rouge Parish Sheriff' s Office

J. Rodney Messina COUNSEL FOR APPLLLEF
Janna Messina Kiefer DEFENDANT— Terrell J. Butler
Baton Rouge, Louisiana

BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ.

WELCH, J.

The State of Louisiana appeals the trial court' s judgment that granted the

expungement of Terrell J. Butler' s record of arrest and conviction, specifically, the

expungement of a conviction of aggravated assault with a motor vehicle upon a

peace officer. For the reasons that follow, we affirm in part, and reverse in part.

BACKGROUND AND PROCECURAL HISTORY

On July 1, 2015, an arrest warrant issued for Mr. Butler, for the alleged

commission of the following crimes: aggravated assault with a motor vehicle upon

a peace officer, a violation of La. R. S. 14: 37. 6; aggravated flight from an officer, a

violation of La. R.S. 14: 108. 1( C); aggravated obstruction of a highway of

commerce, a violation of La. K.S. 14: 96; reckless operation of a vehicle, a violation

of La. R.S. 14: 99; speeding in a construction zone, a violation of La. R. S. 32: 57( H);

disobeying an officer' s signs/ signals, a violation of La. R.S. 32: 56( B); failure to

signal a turn, a violation of La. R.S. 32: 104; disobeying a red signal, a violation of

La. R.S. 32: 232; improper passing on the right, a violation of La. R.S. 32: 74( B);

intentional littering, a violation of La. R.S. 30: 2531; and driving under suspension,

a violation of La. R.S. 32: 415. These crimes arose out of incidents occurring on June

29, 2015.

Pursuant to the arrest warrant, Mr. Butler was arrested on December 15, 2016.

On February 22, 2017, the State of Louisiana filed a bill of information charging Mr.

Butler with Count 1 -- aggravated assault with a motor vehicle upon a peace officer,

a violation of La. R.S. 14: 37. 6, 1 and Count 2— aggravated flight from an officer, a

1 Louisiana Revised Statutes 14: 37. 6 provides, in }pertinent part:
A. Aggravated assault with a motor vehicle upon a peace officer is an assault
committed with a motor vehicle upon a peace officer acting in the course and scope
of his duties.

C. Whoever commits the crime of aggravated assault with a motor vehicle upon a
peace officer shall be fined not more than five thousand dollars, imprisoned with or
without hard labor for not less than one year nor more than ten years, or both.

2

Z
violation of La. R.S. 14: 108. 1( C). In exchange for Mr. Butler' s plea of guilty on

Count 1, the State agreed to dismiss the charge on Count 2. On July 31, 2017, after

accepting Mr. Butler' s guilty plea for aggravated assault with a motor vehicle upon

a peace officer, the trial court deferred Mr. Butler' s sentence on Count 1 and placed

him on one year of active supervised probation in accordance with La. C.Cr.P. art.

893. 3 The State noted on the record that it did not object to Mr. Butler receiving a
deferred sentence under La. C.Cr.P. art. 893.

On January 30, 2018, Mr. Butler satisfactorily terminated his probation, and

the trial court dismissed the prosecution against him pursuant to La. C. Cr.P. art. 893.

On June 17, 2021, Mr. Butler filed a motion for expungement. Mr. Butler

alleged entitlement to expunge his record of arrests that did not result in convictions,

for the following arrests: ( 1) aggravated flight from an officer, a violation of La. R.S.

14: 108. 1( C); ( 2) reckless operation of a vehicle, a violation of La. R.S. 14: 99; and

3) intentional littering, a violation of La. R.S. 30: 2531, Mr. Butler also alleged

entitlement to expunge his record of conviction of aggravated assault with a motor

vehicle upon a peace officer, a violation of La. R.S. 14: 37. 6.

The State objected and opposed Mr. Butler' s motion for expungement. The

State argued that La. C. Cr.P. art. 978( B)( 1) does not permit the expungement of a

record of arrest and conviction of a felony offense that is defined or enumerated as

a " crime of violence" by La. R.S. 14: 2( B). Acknowledging that Mr. Butler' s

conviction for aggravated assault with a motor vehicle upon a peace officer " is not

2 Louisiana Revised Statutes 14: 148. 1{ Q provides:
Aggravated flight from an officer is the intentional refusal of a driver to bring a
vehicle to a stop or of an operator to bring a watercraft to a stop, under
circumstances wherein human life is endangered, knowing that he has been given
a visual and audible signal to stop by a police officer when the officer has
reasonable grounds to believe that the driver or operator has committed an offense.
The signal shall be given by an emergency light and a siren on a vehicle marked as
a police vehicle or marked police watercraft.

3 Pursuant to La. C. Cr.P. art. 893, the sentencing judge is authorized to suspend either the
imposition or execution of sentence when placing the defendant on probation.

3

enumerated as a crime of violence" under La. R. S. 14: 2( B), the State contended that

Mr. Butler' s conviction " clearly meets the definition of a crime of violence under

La. RS.] 14: 2( B)."

The trial court held a hearing on Mr. Butler' s motion for expungement. At the

hearing, the trial court stated that the list of enumerated crimes of violence found in

La. R.S. 14: 2( B) was not an exclusive list but an illustrative list, whereby the crime

of aggravated assault with a motor vehicle upon a peace officer " could be deemed"

a " crime of violence" under the statute. ( Emphasis added). The trial court ruled,

however:

When the defendant entered into a plea agreement,
the State did not object to the sentence being deferred[,]
and it was for purposes of the plea agreement which is
what the Court would deem is one of the underlying
reasons and/ or causes for the defendant to accept the offer
of the State and plead guilty to this -- to this offense.

So for those reasons, the Court is going to grant the
expungement, and we note the State' s objection.

On November 16, 2022, the trial court granted an order of expungement of

Mr. Butler' s arrest and conviction record in accordance with its oral ruling. The State
4
now appeals.

LAW AND DISCUSSION

The State argues that the trial court committed legal error when it ruled that

the State " had an affirmative duty to note for the record at the time of conviction that

Mr. Butler' s felony conviction constituted a crime of violence." The State contends

that it had no duty to state on the record that Mr. Butler' s arrest and conviction for

aggravated assault with a motor vehicle upon a peace officer constituted a crime of

4 The State filed a petition for appeal on November 18, 2022. The trial court signed an order of
appeal on November 21, 2022, notice of which was transmitted by the clerk of court to the parties
on December 7, 2022. In accordance with La. C. C. P. arts. 2127 and 2128, the appellant, the State,
designated portions of the record to constitute the record on appeal. See Uniform Rules, Courts of
Appeal, Rules 2- 1 to 2- 1. 17; Bezet v. Original Libr. Joe' s, Inc., 2001- 1586 ( La. App. Pt Cir.
6121102), 835 So. 2d 472, 475.

4

violence. The State argues that under La. C. Cr.P. art. 890. 3 " all crimes of violence

remain such unless the District Attorney affirmatively elects to declare the

conviction as not constituting a crime of violence."

Louisiana Code of Criminal Procedure article 978 provides, in pertinent part:

B. No expungement shall be granted nor shall a person be
permitted to file a motion to expunge the record of arrest
and conviction of a felony offense if the person was
convicted of the commission or attempted commission of

any of the following offenses:

1) A crime of violence as defined by or enumerated in
R.S. 14: 2( B)... .

Emphasis added).

Louisiana Revised Statutes 14: 2( B) provides, in pertinent part:

In this Code, " crime of violence" means an offense that

has, as an element, the use, attempted use, or threatened
use of physical force against the person or property of
another, and that, by its very nature, involves a substantial
risk that physical force against the person or property of
another may be used in the course of committing the
offense or an offense that involves the possession or use
of a dangerous weapon.

Louisiana Revised Statutes 14: 2( B) also includes an illustrative list of over

forty " enumerated offenses and attempts to commit any of them" that are classified

as " crimes of violence." See La. R. S. 14: 2( B)( 1)-( 60).

Arrests

Pursuant to La. C. Cr.P. art. 978, Mr. Butler is entitled to the expungement of

his record of arrest for the following arrests: ( 1) aggravated flight from an officer, a

violation of La. R.S. 14: 108. 1( C); ( 2) reckless operation of a vehicle, a violation of

La. R. S. 14: 99; and ( 3) intentional littering, a violation of La. R.S. 30: 2531.

Although Mr. Butler' s arrest for aggravated flight from an officer, a violation of La.

R.S. 14: 108. 1( C), is an enumerated crime of violence under La. R.S. 14: 2( B)( 39),

Mr. Butler was never convicted of aggravated flight from an officer. Accordingly,

under La. C. Cr.P. art. 978, he is entitled to the expungement of those arrests.

5

Conviction

At no time since Mr. Butler' s commission of the offense of aggravated assault

with a motor vehicle upon a peace officer on June 29, 2015, and the date he was

sentenced on July 31, 2017, has La. R.S. 14: 2( B) been amended to list aggravated

assault with a motor vehicle upon a peace officer as an enumerated " crime of

violence." The statute has listed aggravated assault upon a peace officer with a

firearm as a " crime of violence" and currently lists aggravated assault upon a peace

officer as a " crime of violence." La. R. S. 14: 2( B)( 32) ( 2015 version); La. R.S.

14: 2( B)( 32) ( 2017 version).

Assault is an attempt to commit a battery, or the intentional placing of

another in reasonable apprehension of receiving a battery." La. R. S. 14: 36. Battery

is defined, in pertinent part, as " the intentional use of force or violence upon the

person of another." La. R. S. 14: 33. " Aggravated assault is an assault committed with

a dangerous weapon." La. R. S. 14: 37( A). Louisiana Revised Statutes 14: 37. 6 defines

aggravated assault with a motor vehicle upon a peace officer as " an assault

committed with a motor vehicle upon a peace officer acting in the course and scope

of his duties."

The proper interpretation of a statute is a question of law. State v. Green,

2020- 0066 ( La. App. 1St Cir. 12130120), 318 So. 3d 146, 149. Questions of law are

reviewed de novo, with the judgment rendered on the record, without deference to

the legal conclusions of the tribunals below. Green, 318 So. 3d at 149. Based on the

above statutory definitions, we agree with both the State and the trial court that the

list of enumerated " crimes of violence" contained in La. R. S. 14: 2( B) is illustrative,

and not exclusive. We further agree with both the State and the trial court that Mr.

Butler' s conviction of aggravated assault with a motor vehicle upon a peace officer

falls within the definition of a " crime of violence" under La. R.S. 14: 2( B) because it

0

is an offense that has, as an element, the use, attempted use, or threatened use of

physical force against the person of another.

While Mr. Butler received a deferred sentence for his conviction of aggravated

assault with a motor vehicle upon a peace officer under La. C. Cr.P, art. 893, which

was dismissed upon his satisfactory completion of the terms of his probation,

pursuant to La. C. Cr.P. art. 978( B)( 1), he is not eligible, however, for an

expungement of his record for the conviction of aggravated assault with a motor

vehicle upon a peace officer because that offense is a " crime of violence" under La.

R.S. 14: 2( B). Accordingly, we must reverse the portion of the trial court' s November

16, 2022 order of expungement of arrest/ conviction for aggravated assault with a

motor vehicle upon a peace officer, a violation of La, R.S. 14: 37. 6.

DECREE

We affirm the portion of the trial court' s November 16, 2022 order of

expungement of arrest/conviction for Terrell J. Butler' s arrests that did not result in

convictions: ( 1) aggravated flight from an officer, a violation of La. R.S.

14: 108. 1( C); ( 2) reckless operation of a vehicle, a violation of La. R.S. 14: 99; and

3) intentional littering, a violation of La. R.S. 30: 2531.

We reverse the portion of the trial court' s November 16, 2022 order of

expungement of arrest/ conviction for Terrell J. Butler' s conviction of aggravated

assault with a motor vehicle upon a peace officer, a violation of La. R.S. 14: 37. 6.

We assess appellate court costs, in the amount of $460. 00, equally between

the appellant, the State of Louisiana, and the appellee, Terrell J. Butler.

AFFIRMED IN PART; REVERSED IN PART,

7