State of Louisiana v. David John Merrill

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 14-530

STATE OF LOUISIANA

VERSUS

DAVID JOHN MERRILL

**********

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 123043
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED.

Lewis H. Pitman Jr.
Attorney at Law
209 W. Main St.
New Iberia, LA 70560
(337) 365-3800
COUNSEL FOR DEFENDANT/APPELLEE:
David John Merrill

Jacques Joseph Cousin, Jr.
Cousin & Cousin
209 French St
New Iberia, LA 70506
(337) 367-2581
COUNSEL FOR PLAINTIFF/APPELLANT:
State of Louisiana

Walter James Senette, Jr.
ADA - St. Mary Parish
500 Main Street 5th Floor
Franklin, LA 70538
(337) 828-4100
COUNSEL FOR PLAINTIFF/APPELLANT:
State of Louisiana

PAINTER, Judge.

The plaintiff, State of Louisiana (State), appeals the judgment denying

its petition to challenge the qualifications of the defendant, David John Merrill

(Mr. Merrill), and to remove him from public office. Having found no error on the

part of the trial court in applying the law, we affirm the judgment of the trial court.

I.

ISSUE

We must decide whether the trial court erred in interpreting and

applying the pertinent law in denying the State’s petition to disqualify and remove

Mr. Merrill from the public office he holds.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Merrill is an elected official currently serving his second term as a

City of New Iberia councilman in District 4. Mr. Merrill was first commissioned

in January 2009. He ran unopposed in October 2012, was re-elected, and began

serving his second term in January 2013. In August 2013, the Iberia Parish District

Attorney’s Office, on behalf of the State of Louisiana, filed a petition challenging

Mr. Merrill’s qualifications to serve in public office and seeking to remove him

based upon a 2003 drug arrest and guilty plea.

The facts are not in dispute. In April 2003, Mr. Merrill was arrested

and pled guilty to possession of marijuana, a misdemeanor, and to possession of

cocaine, a felony. In accordance with his plea agreement under La.Code Crim.P.

art. 893, the trial court did not impose sentence upon Mr. Merrill but placed him in

the Sixteenth Judicial District Drug Court program on supervised probation. Mr.

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Merrill completed the program and, in 2005, filed a motion to dismiss and expunge

the arrest, prosecution, and conviction which forms the basis of this suit. On June

14, 2005, Assistant District Attorney R. Vines, for the Parish of Iberia, signed the

form entitled “Waiver of Objection to Motion to Dismiss and Expunge.” The

order of dismissal and expungement was granted on June 15, 2005.

Expungement does not prevent certain agencies from obtaining

records that have been removed from public access. The Iberia Parish District

Attorney’s Office is such an agency. On August 14, 2013, in conjunction with the

present civil suit, it filed a motion for production of the 2003 record of the criminal

proceeding, docketed as 03-668 in the Sixteenth Judicial District Court in the

Parish of Iberia. The record does not contain any evidence that the District

Attorney’s Office sought to investigate Mr. Merrill’s qualifications for office

before or after his first election in 2009, nor any information regarding the reason

for the District Attorney’s petition to remove him eight months into his second

term.

The State’s basis for its petition is La.Const. art. 1, § 10, which

disqualifies an individual with a felony conviction from running for public office if

the person has not received a governor’s pardon, or if fifteen years have not passed

since the completion of the sentence imposed. Mr. Merrill’s position is that the

dismissal and acquittal granted him under La.Code Crim.P. art. 893 and the

expungement and restoration of rights granted to him under La.R.S. 44:9 prevents

his disqualification. Where no facts are in dispute, we review the trial court’s

application of the pertinent law.

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III.

STANDARD OF REVIEW

Questions of law involving the correct interpretation of legislation are

reviewed de novo, without deference to the legal conclusions of the trial court.

Durio v. Horace Mann Ins. Co., 11-0084 (La. 10/25/11), 74 So.3d 1159. 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. State v. Jenkins, 12-815 (La.App. 3 Cir. 12/12/12), 103 So.3d

1292, writ denied, 13-96 (La. 6/14/13), 118 So.3d 1081.

IV.

LAW AND DISCUSSION

The State contends that the pivotal issue in this case is a conflict

between the disqualifying provisions of La.Const. art. 1, § 10 and the acquittal and

expungement provisions of La.Code Crim.P. art. 893 and La.R.S. 44:09. It cites

State v. Gibson, 12-1145 (La. 1/29/13), 107 So.3d 574, as support for its position

that, when there is such a conflict of laws, the Louisiana Constitution will always

prevail. While this general precept is true, we find no conflict between the

constitutional article and the codal and statutory provisions under review in this

case.

“It is presumed that every word, sentence, or provision in a law was

intended to serve some useful purpose.” City of New Orleans v. Louisiana

Assessors’ Retirement and Relief Fund, 05-2548, p. 20 (La. 10/1/07), 986 So.2d 1,

17 (citations omitted). Therefore, “courts are bound, if possible, to give effect to

all parts of a statute and to construe no sentence, clause, or word as meaningless

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and surplusage if a construction giving force to, and preserving, all words can

legitimately be found.” Id. In order to give every word meaning, we should

consider the law in its entirety in pari materia with other laws concerning the same

subject matter. See Fulmer v. State, Dept. of Wildlife and Fisheries, 10-2779, p. 9

(La. 7/1/11), 68 So.3d 499, 505. When considering La.Code Crim.P. art. 893,

La.R.S. 44:9, and La.Const. art. 1, § 10, in pari materia, we find that Mr. Merrill is

not a convicted and sentenced felon within the meaning of La.Const. art. 1, § 10.

More specifically, Article 1 of the Louisiana Constitution is entitled

“DECLARTION OF RIGHTS.” Section 10, entitled “Right to Vote;

Disqualification From Seeking or Holding an Elective Office,” addresses the

rights of citizens to vote and to run for public office; and it addresses the temporary

suspension of those rights for a person who has been convicted and sentenced for a

felony offense. Louisiana Constitution Article 1, Section 10 (emphasis added),

provides as follows:

(A) Right to Vote. Every citizen of the state, upon
reaching eighteen years of age, shall have the right to
register and vote, except that this right may be suspended
while a person is interdicted and judicially declared
mentally incompetent or is under an order of
imprisonment for conviction of a felony.
(B) Disqualification. The following persons shall
not be permitted to qualify as a candidate for elective
public office or take public elective office or appointment
of honor, trust, or profit in this state:
(1) A person who has been convicted within this
state of a felony and who has exhausted all legal
remedies, or who has been convicted under the laws of
any other state or of the United States or of any foreign
government or country of a crime which, if committed in
this state, would be a felony and who has exhausted all
legal remedies and has not afterwards been pardoned
either by the governor of this state or by the officer of the
state, nation, government or country having such

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authority to pardon in the place where the person was
convicted and sentenced.
(2) A person actually under an order of
imprisonment for conviction of a felony.
(C) Exception. Notwithstanding the provisions
of Paragraph (B) of this Section, a person who desires to
qualify as a candidate for or hold an elective office, who
has been convicted of a felony and who has served his
sentence, but has not been pardoned for such felony, shall
be permitted to qualify as a candidate for or hold such
office if the date of his qualifying for such office is more
than fifteen years after the date of the completion of his
original sentence.

Based upon the foregoing, a person who has had a felony conviction,

in general, must wait fifteen years from the end of his served sentence before he

can qualify to run for public office, unless he has received a governmental or

presidential pardon. However, all of the above subparts of Section 10 apply to an

individual who was sentenced and served a sentence following a conviction for a

felony offense. Mr. Merrill was never sentenced. Because of the nature of the

felony, and his entry into the drug court program under La.R.S. 13:5304, his case

was dismissed and he was acquitted under La.Code Crim.P. art. 893(E). Further,

his record was expunged under La.R.S. 44:9 with a full restoration of rights. Mr.

Merrill appears to be the first elected official in appealed litigation whose acquittal

and expungement were accomplished by a legitimate application of La.Code

Crim.P. art. 893.1 Thus, whether La.Code Crim.P. art. 893, properly applied, is in

conflict with La.Const. art. 1, § 10, is a matter of first impression.

Louisiana Code of Criminal Procedure Article 893 is now entitled

“Suspension and deferral of sentence and probation in felony cases.” When it was

1
The District Attorney’s Office is not challenging the legitimacy of the application of La.Code
Crim.P. art. 893 or the expungement granted under La.R.S. 44:9 in Mr. Merrill’s case. Its
position is that the relief granted by this legislation is in conflict with La.Const. art. 1, § 10.
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enacted in 1966, the title did not contain “and deferral,” which was added in 1996

when a new paragraph (then D, now E) was enacted “authorizing deferment of

imposition of a sentence after conviction of a first offense noncapital felony.”

La.Code Crim.P. art. 893, Historical and Statutory Notes. It is clear that Mr.

Merrill’s sentence was deferred, not suspended, which is significant, as the statute

and the interpreting jurisprudence make important distinctions between the two.

While the paragraphs addressing the suspension of sentences are not applicable to

Mr. Merrill’s case, we will briefly discuss Paragraph (A) for comparison purposes.

The deferral of Mr. Merrill’s sentence in 2003 falls squarely under current

Paragraph (E), including the subparagraphs added in 2008 with retroactive effect.

Paragraphs (A) and (E) of La.Code Crim.P. art. 893 (emphasis added) provide in

pertinent part:

A. When it appears that the best interest of the public
and of the defendant will be served, the court, after a first
or second conviction of a noncapital felony, may
suspend, in whole or in part, the imposition or execution
of either or both sentences, where suspension is allowed
under the law, and in either or both cases place the
defendant on probation under the supervision of the
division of probation and parole. . . . The suspended
sentence shall be regarded as a sentence for the purpose
of granting or denying a new trial or appeal. . . .
....
E. (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 of 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 sentence and place the defendant
on probation under the supervision of the division of
probation and parole.
....
(2) Upon motion of the defendant, if the court finds
at the conclusion of the probationary period that the
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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.
(3)(a) When a case is accepted into a drug court
division probation program pursuant to the provisions of
R.S. 13:5304 and at the conclusion of the probationary
period the court finds that the defendant has successfully
completed all conditions of probation, the court with the
concurrence of the district attorney may set aside the
conviction and dismiss prosecution, whether the
defendant’s sentence was suspended under Paragraph (A)
of this Article or deferred under Subparagraph (1) of this
Paragraph. The dismissal of 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, and shall be considered as a first offense for
purposes of any other law or laws relating to cumulation
of offenses.
....
(c) Dismissal under this Paragraph shall have the
same effect as an acquittal for purposes of expungement
under the provisions of R.S. 44:9 and may occur only
once with respect to any person.
....

Thus, Paragraph (A) provides generally for the suspension of

sentences for first and second noncapital felony convictions but does not provide

for dismissal of the convictions and acquittal after the probationary period. And it

specifically states that “the suspended sentence shall be regarded as a sentence for

the purpose of granting or denying a new trial or appeal.”

By contrast, Paragraph (E) provides for the deferral of a sentence for a

first offense only, with a setting aside of the conviction and a dismissal of the

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prosecution which “shall” have the same effect as an acquittal. However, even

when expunged from public access, the records of felony convictions can never be

destroyed as they are needed to prevent repeated use of the statute and to determine

status if the person offends again, which is not at issue here. See La.Code Crim.P.

art. 893; La.R.S. 44:9; La.R.S. 13:5304. As indicated, Paragraph (E) does not

contain the language that equates a “deferral” with a “sentence” because a deferred

sentence is one that has never been imposed. In addition to the dismissal and

acquittal granted under Paragraph (E) of La.Code Crim.P. art. 893, Mr. Merrill

obtained an expungement of his record under La.R.S. 44:9, which provides in

subparagraph (E)(1) (emphasis added):

(b) After a contradictory hearing with the district
attorney and the arresting law enforcement agency, the
court may order expungement of the record of a felony
conviction dismissed pursuant to Article 893 of the Code
of Criminal Procedure. Upon the entry of such an order
of expungement, all rights which were lost or suspended
by virtue of the conviction shall be restored to the person
against whom the conviction has been entered, and such
person shall be treated in all respects as not having been
arrested or convicted unless otherwise provided in this
Section or otherwise provided in the Code of Criminal
Procedure Articles 893 and 894.

As previously discussed, the only condition on the acquittal granted in

Article 893, which applies to felonies only, is that the dismissed conviction can be

used for purposes of deciding penalties in the case of a multiple offender. The

reference to Article 894 is inapplicable as it applies to misdemeanors only. In

further support of the defendant’s restoration of rights in La.R.S. 44:9(E)(1)(b)

above, La.R.S. 44:9(I) provides that expungement relieves the person from having

to disclose that he was arrested or convicted for the subject offense or that his

record was expunged, except as to entities listed in subsection G.

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In numerous cases not involving drug division programs, the courts

have denied expungement claims because the first offender’s sentence was found

to have been imposed and suspended rather than deferred under La.Code Crim.P.

art. 893. See, e.g., State v. Hodge, 38,796 (La.App. 2 Cir. 8/18/04), 880 So.2d 983;

State v. Oliver, 38,520 (La.App. 2 Cir. 5/12/04), 874 So.2d 365; State v. Tumblin,

03-1193 (La.App. 5 Cir. 2/23/04), 868 So.2d 902; and State v. Williams, 11-708

(La.App. 3 Cir. 2/1/12), 82 So.3d 1290. For those cases, dismissal and acquittal

under La.Code Crim.P. art. 893, which was prerequisite to expungement under

La.R.S. 44:9(E), was only available if the defendant’s sentence had been deferred.

Deferral was the key to dismissal and expungement, and the courts looked hard at

the criminal proceeding to determine whether dismissal was appropriate.

Two such cases dealt with candidates for public office. In Horton v.

Curry, 45,871 (La.App. 2 7/22/10), 44 So.3d 830, a candidate for the office of

police chief was disqualified under La.Const. art. 1, § 10, on the basis of his felony

conviction for illegal possession of stolen things. In affirming disqualification by

the district court, the second circuit found that the judge in the 2007 criminal

proceeding had imposed and then suspended Curry’s sentence, rather than opting

to defer sentencing. The court further found that the 2009 amended judgment

failed to dismiss the conviction and order expungement of the record because it did

not declare that the 2007 prosecution was dismissed pursuant to the statutory

provision that triggers the restoration of all rights lost or suspended by the felony

conviction. In determining that the amended judgment was also insufficient to

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correct the sentence under La.Code Crim.P. art. 881.1(A)(3),2 the second circuit

stated:

The procedures for the deferral of sentence under
La.C.Cr.P. art. 893 E and the expungement of records
under La. R.S. 44:9 are clearly spelled out in the statutes
and have been the subject of much discussion in the
jurisprudence; see, e.g., In re Elloie, 2005-1499
(La.1/19/06), 921 So.2d 882. Likewise, La.C.Cr.P. art.
881.1 A(3) sets out the proper procedure by which a
person convicted of a felony may correct an error in the
imposition of his original sentence regarding the deferral
of sentence under La.C.Cr.P. art. 893 E.
....
Indeed, it appears that the 2007 sentence was imposed
under La.C.Cr.P. art. 893, but the sentence was imposed
under Section A of that statute, not Section E. The trial
court imposed sentence but suspended the hard labor
portion of the sentence in favor of probation. The 2009
judgment does not order the 2007 judgment of conviction
to be amended to reflect that sentence was deferred under
La.C.Cr.P. art. 893 E nor does it otherwise declare that
Curry was entitled to the benefits of that article per
La.C.Cr.P. art. 881.1 A(3).

Horton v. Curry, 44 So.3d at 836 (emphasis added). In conclusion, the second

circuit stated:

Because the 2009 judgment does not actually set aside
Curry’s felony conviction pursuant to La.C.Cr.P. art. 893
E, Curry is not entitled to the benefits of La. R.S. 44:9 E

2
(3) In the event a defendant alleges mutual mistake in that the sentence
imposed upon conviction pursuant to Code of Criminal Procedure Article 893 was
in error and the prosecuting authority, the court, and the defendant intended that
the imposition of sentence was to be deferred pursuant to Code of Criminal
Procedure Article 893(E), such defendant may file a motion to reconsider the
sentence for the sole purpose of considering that issue. Such motion shall be filed
within two years of the date of successful completion of the probation imposed by
the court. If the court finds that a mutual mistake exists and that the defendant
was in all other respects eligible for the benefits of Code of Criminal Procedure
Article 893(E), the defendant shall be entitled to the benefits thereof, in
accordance with law.

La.Code Crim.P. art. 881.1(A)(3).
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provided to persons whose convictions [sic] have been
dismissed, including the restoration of rights.
Since the 2009 judgment amending Curry’s 2007
judgment of conviction and sentence is ineffective as a
deferral under La.C.Cr.P. art. 893 E that could arguably
allow him to qualify as a candidate for public office for
purposes of La. Const. Art. 1, § 10, the judgment of the
district court is affirmed at appellant’s cost.

Id. at 837 (emphasis added).

Similarly, the second circuit, in an earlier case, affirmed the

disqualification of a candidate for the city council in Turner v. James, 37,405

(La.App.2d Cir.2/27/03), 840 So.2d 662, writ denied, 03-0618 (La. 3/3/03), 839

So.2d 20. James pled guilty to attempted obstruction of justice in 1989. When his

candidacy was challenged in 2003, he filed a “Motion for Benefit of Article 893”

and obtained an “Order Providing for 893 Benefits” according to the court’s

minutes. The minutes of court for the 1989 conviction were also amended to show

“charge of Attempted Obstruction of Justice: Dismissal of the Prosecution by the

State of Louisiana. Accordingly the conviction is hereby set aside and the

prosecution is dismissed.” Id. at 663.

In affirming the trial court’s disqualification of James for candidacy

under La.Const. art. 1, § 10, the second circuit found that the record did not contain

a copy of the motion and the order for 893 benefits that were referenced in the

minutes. The court further found that the criminal court judge who signed the

order could not validly set aside James’s conviction and dismiss the prosecution

because the sentence had actually been imposed and suspended, not deferred under

Article 893 (D)––(now E). Thus, his argument that he had been acquitted under

Article 893 was rejected. However, the court stated: “[W]e do not reach the

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question of the effect of a legitimate art. 893 proceeding on the qualifications for

an elected office.” Id. at 665 n.2 (emphasis added).

In the present case, we have a legitimate 893 proceeding. In the 2003

criminal proceeding, wherein Mr. Merrill was required to plead guilty in order to

enter the court’s drug division probation program, the trial judge explained the

range of “possible” sentences but made it clear that he was not imposing sentence.

In addressing Mr. Merrill, the court stated: “In exchange for your guilty plea, I

have agreed not to impose sentence but to place you on five years of probation, the

main condition being that you enter into and successfully complete the drug court

program together with these other conditions in your plea agreement.” Shortly

thereafter, the court stated: “In accordance with your plea agreement, under Code

of Criminal Procedure Article 893, I’m not going to impose sentence.” The court

then went through the extensive requirements of the drug probation agreement.

Ten years later, in the present civil proceeding, the same trial judge specifically

referred to his prior adjudication as a deferral of Mr. Merrill’s sentence.

Therefore, because Mr. Merrill’s sentence was deferred, meeting the

requirements of (E)(1) and (2), Mr. Merrill was properly granted a dismissal and

acquittal under La.Code Crim.P. art. 893, and he was properly granted

expungement and restoration of rights under La.R.S. 44:9(E). Additionally, Mr.

Merrill obtained those benefits under 893(E)(3)(a), which was enacted in 2008

with retroactive effect, because in 2005 he had successfully completed the drug

division probation program of La.R.S. 13:5304. This particular subparagraph

relating to drug court probationers specifically provides for dismissal and acquittal,

whether the probationer’s sentence was deferred under (E) or suspended under (A);

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and (E)(3)(c) again makes the acquittal effective for purposes of expungement

under La.R.S. 44:9.

The requirements under La.R.S. 13:5304 are stringent, and

probationers enter the program through the combined efforts of the District

Attorney and the presiding judge after detailed interviews and determinations

regarding eligibility. Pursuant to La.R.S. 13:5304(B)(11)(a), the trial judge makes

the final determination for entry into the program; pursuant to La.R.S.

13:5304(D)(1)-(2), the District Attorney makes the determination at completion

regarding dismissal and acquittal pursuant to La.Code Crim.P. art. 893 and 894.

Assistant District Attorney R.Vines made that determination in Mr. Merrill’s case

on June 14, 2005, when he signed the “Waiver of Objection to Motion to Dismiss

and Expunge.” In fact, the State in this case is not objecting to the fact or the

validity of the deferral in Mr. Merrill’s case or to the processes used.

Instead, the State’s assignment of error is based on a perceived

conflict between the disqualification provisions of La.Const. art. 1, § 10, and the

dismissal, acquittal, and restoration of rights provisions of La.Code Crim.P. art.

893 and La.R.S. 44:9. As previously indicated, La.Const. art. 1, § 10, repeatedly

references felony convictions resulting in sentences imposed and served. No

sentence was ever imposed upon or served by Mr. Merrill. In the only two cases

discussing the same issues, Horton v. Curry and Turner v. James, the candidates

were disqualified based upon the fact that sentences were imposed. The second

circuit in those cases specifically limited their holdings and indicated that a

legitimate deferral of sentence under Article 893 could allow the candidates to

qualify for office under La.Const. art. 1, § 10.

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We find no error on the part of the trial court in finding that the

deferral, acquittal, and restoration of rights in Mr. Merrill’s case, removes him

from the purview of La.Const. art. 1, § 10.

V.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court

with costs assessed to the appellant.

AFFIRMED.

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