State of Louisiana v. Christopher Raymond Diano

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #014

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 21st day of March, 2025 are as follows:

BY Weimer, C.J.:

2024-KK-00888 STATE OF LOUISIANA VS. CHRISTOPHER RAYMOND DIANO
(Parish of Terrebonne)

THE RULING OF THE DISTRICT COURT IS AFFIRMED. SEE
OPINION.

Justice Jeanette Theriot Knoll, retired, heard this case as Justice Pro
Tempore, sitting in the vacant seat for District 3 of the Louisiana Supreme
Court. She is now appearing as Justice ad hoc for Justice Cade R. Cole.

Judge Frank H. Thaxton, III, retired, sitting ad hoc for Justice John Michael
Guidry, recused.

Crain, J., dissents and assigns reasons.

McCallum, J., dissents.

SUPREME COURT OF LOUISIANA

No. 2024-KK-00888

STATE OF LOUISIANA

VS.

CHRISTOPHER RAYMOND DIANO

On Supervisory Writ to the 32nd Judicial District Court,
Parish of Terrebonne

WEIMER, Chief Justice1

This case addresses the proper statutory interpretation of Louisiana’s Habitual

Offender Law; specifically, calculation of the five-year cleansing period pursuant to

La. R.S. 15:529.1(C)(1). Finding the period of time defendant was incarcerated for

a misdemeanor offense is included in the calculation of the five-year cleansing

period,2 the ruling of the district court granting defendant’s motion to quash the

habitual offender bill is affirmed.

FACTS AND PROCEDURAL HISTORY

On March 3, 2023, Christopher Diano was convicted of a felony offense

(inciting a felony) committed on January 24, 2021. Following his conviction, the

State filed a bill of information seeking to adjudicate Diano as a habitual offender

1
Justice Jeanette Theriot Knoll, retired, heard this case as Justice Pro Tempore, sitting in the vacant
seat for District 3 of the Louisiana Supreme Court. She is now appearing as Justice ad hoc for
Justice Cade R. Cole. Judge Frank H. Thaxton, III, retired, sitting ad hoc for Justice John Michael
Guidry, recused.
2
Stated another way, the days defendant spent incarcerated for a misdemeanor offense are counted,
as opposed to not being counted, when evaluating whether the cleansing period of five years has
elapsed.

based on three predicate felony convictions dated April 7, 2009 (two counts of

possession of a controlled dangerous substance), May 6, 2010 (possession of a

controlled dangerous substance and attempted possession of a firearm by a convicted

felon), and January 7, 2013 (possession of a controlled dangerous substance). Diano

completed his parole on the three predicate offenses on December 25, 2015. Between

December 25, 2015, and January 24, 2021, when the current offense was committed,

Diano was incarcerated for approximately 180 days for a misdemeanor conviction.

Diano filed a motion to quash the habitual offender bill of information,

asserting the predicate offenses were cleansed pursuant to La. R.S. 15:529.1 because

more than five years had elapsed between his last felony conviction in 2013 and his

commission of the current felony in 2021. The State objected, arguing the five-year

cleansing period had not elapsed because the statute also provides that “any period

of ... incarceration” is not included in the computation of the five-year cleansing

period. Thus, although five years had elapsed from December 25, 2015, the date

defendant completed his parole on the three predicate offenses, and January 24, 2021,

the date of the current offense, the State took the position that the 180 days in which

Diano was incarcerated for a misdemeanor offense in 2018 and 2019 should be

excluded from calculation of the cleansing period. In response, defendant argued the

purpose of the habitual offender law is to punish multiple felonies, and time spent

incarcerated for a misdemeanor offense did not affect calculation of the five-year

cleansing period.

The district court granted Diano’s motion to quash, finding La. R.S.

15:529.1(C)(1) is properly interpreted to mean that the cleansing period is suspended

by incarceration or correctional supervision attributable only to the predicate felony

offenses listed in the habitual offender bill. The court found the State’s suggested

2

interpretation of the statutory language, i.e., incarceration for any reason suspends the

cleansing period, could lead to absurd results. The court of appeal denied the State’s

writ application. State v. Diano, 24-0206 (La. App. 1 Cir. 6/17/24) (unpublished).3

Upon the State’s application, certiorari was granted to review the correctness

of the district court’s ruling. State v. Diano, 24-00888 (La. 11/14/24), 395 So.3d

1164.

DISCUSSION

The Habitual Offender Law is set forth in La. R.S. 15:529.1. Section (A) of the

statute addresses and provides enhanced sentences for habitual offenders–i.e, persons

who commit a felony after having been previously convicted of a felony offense.

Section (C) of the statute provides for a five-year “cleansing period”4 after which the

enhancement provisions of the Habitual Offender Law cannot be used to increase the

punishment for the current offense. Relative to the dispute before the court is

Subsection (C)(1), which provides:

[T]he current offense shall not be counted as, respectively, a
second, third, fourth, or higher offense if more than five years have
elapsed between the date of the commission of the current offense or
offenses and the expiration of the correctional supervision, or term of
imprisonment if the offender is not placed on supervision following
imprisonment, for the previous conviction or convictions, or between
the expiration of the correctional supervision, or term of imprisonment
if the offender is not placed on supervision following imprisonment, for
each preceding conviction or convictions alleged in the multiple
offender bill and the date of the commission of the following offense or

3
Judge Welch dissented. Based on the language of La. R.S. 15:529.1(C)(1), he found that while
not a predicate offense, the defendant’s 180 days served in a penal institution in 2018 and 2019 for
the misdemeanor conviction should have been excluded from the calculation of the five-year
cleansing period. Judge McClendon concurred in the writ denial on this issue, and would have
denied on the showing made on the State’s alternative argument (discussed infra).
4
The statute does not use the term “cleansing period.” This court previously discouraged use of that
term, noting it is a misnomer and “misguided attempt to describe the intricacies of subsection (C)
in a short hand manner.” State v. Everett, 00-2998, p. 7 (La. 5/14/02), 816 So.2d 1272, 1276.
However, because use of the term has persisted, and its meaning in this context appears to be well
understood, we will use “cleansing period” as it is employed by the parties in this case.

3

offenses. In computing the intervals of time as provided in this
Paragraph, any period of parole, probation, or incarceration by a person
in a penal institution, within or without the state, shall not be included
in the computation of any of the five-year periods between the
expiration of the correctional supervision, or term of imprisonment if the
offender is not placed on supervision following imprisonment, and the
next succeeding offense or offenses.

The issue this court must resolve is one of statutory interpretation, specifically

whether the statutory language–“any period ... of incarceration by a person in a penal

institution ... shall not be included in the computation” of the five-year

period–requires the 180 days Diano was incarcerated for a misdemeanor offense be

excluded when calculating whether the five-year cleansing period has elapsed.

Because the issue presented is a question of law, review of this matter is de novo

without deference to the legal conclusions of the courts below. This court is the

ultimate arbiter of the meaning of the laws of this state. Durio v. Horace Mann Ins.

Co., 11-0084, p. 14 (La. 10/25/11), 74 So.3d 1159, 1168; Red Stick Studio Dev.,

L.L.C. v. State ex rel. Dep’t of Econ. Dev., 10-0193, p. 9 (La. 1/19/11), 56 So.3d

181, 187.

This court begins its analysis with the proposition that the starting point in the

interpretation of any statute is the language of the statute itself. State v. Shaw,

06-2467, p. 14 (La. 11/27/07), 969 So.2d 1233, 1242. Criminal statutes must be

given a genuine construction, according to the fair import of their words, taken in

their usual sense, in connection with the context, and with reference to the purpose

of the provision. La. R.S. 14:3; State v. Skipper, 04-2137, p.3 (La. 6/29/05), 906

So.2d 399, 403. When the statutory language is susceptible of different meanings,

it must be interpreted as having the meaning that best conforms to the purpose of the

law, and the meaning of ambiguous words must be sought by examining the context

in which they occur and the text of the law as a whole. Id.; see also La. C.C. arts. 10

4

& 12.5 A criminal statute, like all other statutes, must be interpreted to preserve and

effectuate the manifest intent of the legislature, avoiding an interpretation which

would operate to defeat the object and purpose of the statute. Shaw, 06-2467 at 15,

969 So.2d at 1242.

Applying these principles, this court is not convinced by the State’s argument

that the 180 days defendant was incarcerated for a misdemeanor offense are not

counted in the calculation of the five-year cleansing period. To support its position,

the State focuses solely on language extracted from the second sentence of La. R.S.

15:529.1(C)(1): “any period of parole, probation, or incarceration by a person in a

penal institution, within or without the state, shall not be included in the

computation” of the five-year period. However, rules of statutory interpretation

prevent this court from reading that language in isolation from the remainder of the

statute. The full text of La. R.S. 15:529.1(C)(1) begins by listing bases for

calculating the cleansing period:

[I]f more than five years have elapsed between the date of the
commission of the current offense or offenses and the expiration of the
correctional supervision, or term of imprisonment if the offender is not
placed on supervision following imprisonment, for the previous
conviction or convictions, or between the expiration of the correctional
supervision, or term of imprisonment if the offender is not placed on
supervision following imprisonment, for each preceding conviction or
convictions alleged in the multiple offender bill and the date of the
commission of the following offense or offenses.

Pursuant to this statutory language, the cleansing period is calculated in five-year

intervals of time linked solely to previous convictions alleged in the habitual offender

bill–felony offenses. See State v. Avist, 09-101, pp. 5-6 (La. App. 5 Cir. 7/28/09),

19 So.3d 1203, 1206. The statute requires that each step of the multiple offender

5
Basic Civil Code concepts regarding interpretation of statutes are applicable to interpreting the
Criminal Code. State v. Griffin, 14-1214, pp. 4-5 (La. 10/14/15), 180 So.3d 1262, 1267, n. 2.

5

ladder be examined to determine whether the State can link the first felony conviction

to the second, the second felony conviction to the third, and the third felony

conviction to the fourth, to charge the defendant as a fourth felony offender. State

v. Thomas, 05-2210, p. 10 (La. App. 1 Cir. 6/9/06), 938 So.2d 168, 176. The second

sentence of La. R.S. 15:529.1(C)(1) goes on to provide:

In computing the intervals of time as provided in this Paragraph, any
period of parole, probation, or incarceration by a person in a penal
institution, within or without the state, shall not be included in the
computation of any of the five-year periods between the expiration of
the correctional supervision, or term of imprisonment if the offender is
not placed on supervision following imprisonment, and the next
succeeding offense or offenses.

The State takes the position that this sentence unambiguously provides that any

period of time a defendant spends incarcerated is not included when computing

whether five years have elapsed. But the State fails to recognize the import of the

prefatory language: “In computing the intervals of time as provided in this Paragraph

....” [Emphasis added.] “This Paragraph”–(C)(1)–addresses calculation of the

cleansing period for purposes of determining whether enhanced habitual offender

penalties can be imposed on a defendant who has committed multiple felonies. Thus

“this Paragraph” solely concerns felony offenses. Reading the second sentence in

conjunction with the text of the statute as a whole, the language is most logically

understood to mean that any period of parole, probation, or incarceration relative to

a felony offense shall not be included in calculating the five-year period.6

Adopting the State’s interpretation and not counting the days Diano was

incarcerated for a misdemeanor offense when calculating whether five years have

elapsed would be inconsistent with the overall purpose of the Habitual Offender Law.

6
Although this court’s ultimate decision affirms the district court’s ruling, it departs from the
district court’s analysis which limited the statutory language as applicable only to the predicate
felony offenses.

6

The Habitual Offender Law “punishes an offender’s persistent and felonious defiance

of the state’s criminal laws.” State v. King, 06-1903, p. 7 (La. 10/16/07), 969 So.2d

1228, 1232 (emphasis added). The purpose of the Habitual Offender Law is to

discourage commission of successive felonies and to enhance punishment for

subsequent felonies. Shaw, 06-2467 at 17, 969 So.2d at 1243. A statutory provision

providing for a cleansing period was first added to the Habitual Offender Law in

1942. See 1942 La. Acts 45. This court has recognized the purpose of adding a

cleansing period was to give an offender a better chance for rehabilitation by

providing that he would not be treated as a habitual offender if he could avoid further

felony convictions for a period of five years. State v. Anderson, 349 So.2d 311, 315

(La. 1977) (internal citation omitted). In this case, Diano avoided felony convictions

for a period of five years. Imposing an enhanced habitual offender penalty on

defendant as a result of a relatively short period of incarceration for a misdemeanor

offense fails to advance this purpose. Rather, interpreting “any period ... of

incarceration” solely relative to felony offenses properly focuses on felonious

activity, and preserves the intent of the legislature in enacting the Habitual Offender

Law.7

Additionally, criminal and penal laws, such as the Habitual Offender Law, must

be strictly construed. State ex rel. Mims v. Butler, 601 So.2d 649, 655 (La. 1992).

“In the absence of an express legislative intent, any doubt or ambiguity should be

resolved in favor of lenity and not so as to multiply the penalty imposed.” Id.

Adopting the State’s interpretation of the statute would contradict the rule of lenity

and result in severe ramifications for defendant, who faces a maximum penalty of two

7
In fact, the statute uses the words “felony” or “felonies” thirty eight times, whereas the word
“misdemeanor” does not appear in the statute.

7

years for the January 24, 2021 felony offense.8 However, if defendant is adjudicated

as a fourth felony offender, he faces a minimum sentence of twenty years.9 The

analysis of La. R.S. 15:529.1(C)(1) properly encompasses a reading of the entire

statute, as opposed to a single clause, in addition to applying a strict construction of

the statutory language, resolving any ambiguity in the language in favor of lenity.

Moreover, as recognized by the district court, the State’s suggested

interpretation would lead to absurd results. See La. C.C. art. 9, which provides that

courts should avoid an interpretation that creates such a result. The State’s position

that any period of incarceration must be excluded from calculation of the cleansing

period would encompass incarcerations for such things as traffic violations/fines,

failure to pay child support, and contempt. Even more absurd, the State’s

interpretation would encompass incarcerations for arrests that do not result in a

conviction, such as where charges are dropped or a defendant is found not guilty.

Although these potential scenarios do not represent the facts of this case, the court

cannot ignore the actual impact of adopting the State’s interpretation in future cases.

It would be contrary to the intent of the legislature in enacting the Habitual Offender

Law to subject defendants in such circumstances to enhanced habitual offender

penalties, particularly when an individual is improperly jailed although innocent.

Such an interpretation could lead to constitutional infirmities related to cruel and

unusual punishment, and a truly absurd result.

8
La. R.S. 14:28 concerns the crime of inciting a felony and provides that “[w]hoever commits the
crime of inciting a felony shall be fined not more than one thousand dollars, or imprisoned, with or
without hard labor, for not more than two years, or both.” La. R.S. 14:28(B).
9
La. R.S. 15:529.1(A)(4)(a) provides: “If the fourth or subsequent felony is such that, upon a first
conviction the offender would be punishable by imprisonment for any term less than his natural life
then the following sentences apply: (a) The person shall be sentenced to imprisonment for the fourth
or subsequent felony for a determinate term not less than the longest prescribed for a first conviction
but in no event less than twenty years and not more than his natural life.”

8

Finally, this court also notes the State presented an alternative argument to

support its position that the five-year cleansing period had not elapsed at the time

Diano committed the instant offense on January 24, 2021. According to the State,

although defendant was released from parole on the three predicate offenses on

December 25, 2015, he remained on supervised probation relative to the third

(January 7, 2013) predicate offense until April 8, 2016, as a result of a split sentence.

In support, the State argues defense counsel stipulated to these facts at the hearing on

the motion to quash. However, the State’s position is not supported by an evaluation

of the entire record.

In addressing whether the cleansing period had elapsed, the sole argument

raised by the State in its written response to defendant’s motion to quash the habitual

offender bill of information involved the 180 days Diano spent incarcerated for a

misdemeanor offense. However, during the course of the subsequent January 10,

2024 hearing on the motion to quash, the State asserted for the first time that

defendant remained on probation for the third predicate offense until April of 2016.

The seventy-plus page transcript reflects there was extensive colloquy between the

district attorney, defense counsel, and the district judge reviewing the relevant

information and dates for all three predicate convictions, as well as general discussion

regarding the sentences imposed. The State quotes a short excerpt from the lengthy

transcript wherein it contends defense counsel stipulated defendant remained on

probation until April 8, 2016. However, after reviewing the transcript in its entirety,

this court does not find a formal stipulation that defendant remained under

correctional supervision for the third predicate offense until April 8, 2016, for

purposes of calculating the cleansing period.

9

In the course of the discussion, the parties worked to delineate and clarify the

issues to be decided by the court. Defense counsel expressed agreement with certain

representations made by the State regarding the dates of the offenses and convictions

and identity of defendant relative to all three predicates, and there was discussion

regarding the sentences for the predicate offenses. The transcript reflects that in

response to the State’s new assertion regarding the probation date, defense counsel

expressed concern regarding the complexities of a split sentence, but agreed generally

that if defendant started probation on April 8, 2013, the day he was sentenced, three

years of probation would end on April 8, 2016. But neither the transcript, nor

anything else in the record,10 supports a finding that the parties or the district court

construed the discussion to constitute a formal stipulation that defendant remained

on probation until that date.11 Had such a stipulation been entered, the district court

could have denied defendant’s motion to quash immediately based on La. R.S.

15:529.1(C)(1), making the issue of the 180-day misdemeanor incarceration

irrelevant. Instead, the district court continued the hearing until February 8, 2024.

Prior to that date, the court allowed the parties to submit supplemental memoranda

on any issue they deemed relevant. Notably, as it relates to the cleansing period, the

State’s supplemental memorandum only addressed the issue of the misdemeanor

incarceration–it did not include an explanation or argument addressing whether

defendant remained under correctional supervision for the third predicate offense.

10
Although the State introduced various exhibits at the hearing, the State did not introduce evidence
definitively demonstrating when Diano began probation and, more importantly, when he was
formally released from probation.
11
This court finds it noteworthy that the parties did enter into a stipulation regarding the conviction
date, sentence, and incarceration time relative to Diano’s misdemeanor offense in 2018. The
transcript reflects the State and defense counsel expressly agreed to a stipulation on the record, with
the court confirming the stipulation on the record. By stark contrast, when discussing the sentence
and probation on the third predicate offense, no one uttered the word “stipulation” or otherwise
confirmed a formal agreement.

10

At the February 8, 2024 hearing, the district judge framed the relevant issue,

and the parties agreed on the record, that the only issue was whether the 180 days

defendant was incarcerated for a misdemeanor offense should be excluded from

calculation of the cleansing period. The district judge then continued to analyze that

issue, with the parties engaging in additional oral argument. At no time during this

hearing, or during the court’s oral ruling on the motion, was the issue regarding

whether defendant remained on probation for the third predicate offense addressed.

The district court’s ruling was based solely on finding Diano’s 180-day incarceration

on a misdemeanor offense is included when calculating the five-year cleansing

period.

The State had the burden of proving the cleansing period had not elapsed. See

State v. Kisack, 16-0797, p. 6 (La. 10/18/17), 236 So.3d 1201, 1205. Finding no

stipulation that Diano remained under correctional supervision until April 8, 2016,

and finding no factual evidence supporting the State’s assertion in the record, this

court holds the State failed to satisfy its burden of proving the cleansing period had

not elapsed.12

CONCLUSION

Following well established rules of statutory interpretation, this court

concludes that the language in La. R.S. 15:529.1(C)(1)–“any period of ...

incarceration ... shall not be included in the computation of” the five-year cleansing

period–cannot be read in isolation and must be read in conjunction with the entirety

of subsection (C)(1). Reading the text of the statute as a whole, and strictly

construing subsection (C)(1) in a manner consistent with the purpose of the Habitual

12
This finding is consistent with the concurrence of now Chief Judge McClendon in the court of
appeal, who indicated she would deny the State’s writ on the alternative argument based on the
showing made.

11

Offender Law, this court holds that the time defendant spent incarcerated for a

misdemeanor offense in 2018 and 2019 is included and counted when calculating

whether the five-year cleansing period has elapsed. Moreover, based on the record

before the court, the State did not otherwise prove the cleansing period had not

elapsed. Thus, the district court correctly granted Diano’s motion to quash the

habitual offender bill.

DECREE

THE RULING OF THE DISTRICT COURT IS AFFIRMED.

12

SUPREME COURT OF LOUISIANA

No. 2024-KK-00888

STATE OF LOUISIANA

VS.

CHRISTOPHER RAYMOND DIANO

On Supervisory Writ to the 32nd Judicial District Court, Parish of Terrebonne

CRAIN, J., dissents with reasons.

The majority unnecessarily decides this case on a statutory interpretation of

Louisiana’s Habitual Offender Law. In its briefing, the state argued that the

cleansing period in La. R.S. 15:529.1(C)(1) did not lapse because the defendant was

on supervised probation until April 8, 2016. Applying the five-year cleansing period

to this date, any offense committed prior to April 8, 2021 makes the defendant a

four-time felony offender. The instant offense was committed on January 24, 2021.

Thus, the defendant is a four-time felony offender, and the case should have been

decided on these grounds alone.

The majority finds insufficient evidence that the defendant was on probation

until April 8, 2016. I disagree. The matter came before the trial court on a motion

to strike the habitual offender bill of information. At the hearing, the trial judge

questioned both the state and the defense regarding the relevant dates for deciding

whether the five-year cleansing period expired. In sum, the trial judge wanted to

know when the defendant was arrested, when he was convicted, what was the

sentence, how much time did he serve, and when did his probation and parole end.

These facts were important because the cleansing period does not run when the

1

defendant is under correctional supervision, which includes parole, probation, or

incarceration. La. R.S. 15:529.1(C)(1).

It was agreed the defendant pled guilty on April 7, 2009 to two counts of

possession of a controlled dangerous substance. The defendant again pled guilty on

May 6, 2010 to possession of a controlled dangerous substance and attempted

possession of a firearm by a convicted felon. Lastly, the defendant was convicted

on January 7, 2013 of possession of a controlled dangerous substance. For that

conviction his imposed sentence was vacated, and he was resentenced on April 8,

2013. As part of that sentence, the record and testimony established that following

a period of incarceration at hard labor, the defendant was placed on probation for

three years. Thus, all three prior convictions occurred within five years of each

other, leaving the only issue whether the cleansing period expired between the 2013

conviction and sentence and the instant case.

The minute entry from the defendant’s April 8, 2013 resentencing was

admitted by stipulation and confirms that the defendant was resentenced: “To serve

two years with the Department of Corrections of the State of Louisiana, suspended

upon serving one year, consecutive with time he is spending for parole and placed

on supervised probation for three years.” The defendant’s new sentence expressly

included three years of supervised probation.

In addition to stipulating to the admission of the minute entry, the three-year

probation period was acknowledged by defense counsel at the hearing on the motion

to strike. After establishing that all periods of incarceration ended on December 25,

2015, the trial judge asked, “Was there any supervision after that date?” The state

responded, “There was supervision on the probation which he completed on April

the 8th, 2016.” The trial judge asked defense counsel to respond. Defense counsel

said, “Yes, your honor.” The trial judge asked a second time whether the defense

agreed with the representations made regarding the third conviction. Again, defense

2

counsel responded, “Yes, your honor.” Additionally, defense counsel stated, “He

pled on January 7th, 2013, resentenced on April 8th, 2013. If he started probation on

that day, three years later would be April 2016.” Thus, the hearing transcript

establishes that the defendant was under supervision until April 8, 2016. This is

consistent with the minute entry. While I believe defense counsel stipulated to this

fact, the minute entry alone is unchallenged and sufficient to prove it.

Because defendant’s first predicate conviction was in 2009, his second was in

2010, and his third was in 2013, there was no five-year period between the first and

the third predicate offenses to cleanse his record. After expiration of his probated

sentence on April 8, 2016, the five-year cleansing period began to run. The subject

crime was committed on January 24, 2021, within that five-year period. Thus, the

defendant is properly a fourth-felony offender. I dissent.

3