State of Louisiana v. John Davis, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-278

STATE OF LOUISIANA

VERSUS

JOHN DAVIS, JR.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 14-K-0970-A
HONORABLE LEDRICKA THIERRY, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, John E. Conery, and Charles G.
Fitzgerald, Judges.

REVERSED.

Connor Kirk Junkin
Adrienne E. Aucoin
Department of Public Safety and Corrections, Office of State Police
P. O. Box 66614
Baton Rouge, LA 70896
(225) 922-0671
COUNSEL FOR PLAINTIFF/APPELLANT:
Department of Public Safety and Corrections, Office of State Police

Hon. Charles Jagneaux
St. Landry Parish Clerk of Court
P.O. Box 750
Opelousas, LA 70570-0750
(337) 942-5606

Chad Patrick Pitre
Twenty-Seventh Judicial District Attorney
P.O. Box 1968
Opelousas, LA 70570
(337) 948-3041
COUNSEL FOR PLAINTIFF/APPELLANT:
State of Louisiana

Bobby Guidroz
St. Landry Parish Sheriff
1592 E Prudhomme Street
Opelousas, LA 70570
(337) 348-6516
COUNSEL FOR PLAINTIFF/APPELLANT:
State of Louisiana

Quincy L. Cawthorne
Doran & Cawthorne, PLLC
521 E Landry Street
Opelousas, LA 70570
(337) 948-8008
COUNSEL FOR DEFENDANT/APPELLEE:
John Davis, Jr.

GREMILLION, Judge.

The Louisiana Department of Public Safety and Corrections, Office of the

State Police, appeals an order expunging the conviction of Defendant, John Davis,

Jr., of Stalking, a violation of La.R.S. 14:40.2. For the reasons that follow, we

reverse.

FACTS AND PROCEDURAL POSTURE

Defendant was charged with one count of Stalking by bill of information filed

on August 5, 2014. On January 6, 2015, Defendant appeared in court with counsel

and withdrew his not guilty plea and pleaded guilty to the charge. The minutes of

court reflect that the trial court interrogated Defendant to ascertain that the plea was

knowingly entered, that Defendant understood his constitutional rights and was

intelligently waiving them, and that a sufficient factual basis existed for the entry of

a plea of guilty. Defendant’s sentencing was deferred pursuant to La.Code Crim.P.

art. 893, and he was placed on two years’ supervised probation with special

conditions that he perform forty hours of community service, pay certain fees, and

stay away from the Dollar General Store on Highway 190 in Opelousas, Louisiana.

On January 23, 2020, Defendant filed a motion to set aside his conviction and

dismiss the prosecution. The same day, the Twenty-Seventh Judicial District

Attorney filed a certification that he had no objection to the trial court setting aside

the conviction and dismissing the prosecution pursuant to La.Code Crim.P. art.

893(E), and an order setting aside the conviction and dismissing the prosecution was

signed by the trial court.

On April 6, 2020, Defendant filed a motion to expunge the conviction from

his criminal record. The motion prayed that if no timely objection was filed by the

arresting law enforcement agency (the St. Landry Parish Sheriff), the district

attorney’s office, or the Louisiana Bureau of Criminal Identification and Information

(the Bureau), the record of Defendant’s arrest, conviction, and all photographs,

fingerprints, or other information be expunged and deemed confidential. The

District Attorney filed an Affidavit of Response attesting that there was no

opposition. Also on April 6, 2020, the trial court issued an order indicating that if

objections were not filed within sixty days of service of the order, no contradictory

hearing would be required.

On July 13, 2020, the Bureau filed an opposition on the basis that La.Code

Crim.P. art. 978 does not allow expungement of arrests or convictions of crimes of

violence as defined in La.R.S. 14:2(B), and Stalking is designated a crime of

violence pursuant to La.R.S. 14:2(B)(37). The trial court set a hearing date for

January 21, 2021.

At this hearing, Defendant argued that the Bureau’s opposition was not timely

filed. The Bureau argued that the timeliness of any objection was irrelevant because

Stalking is defined as a crime of violence and is not eligible for expungement. The

Bureau also pointed out that the order specified that oppositions must be filed within

sixty days of service, and its records showed that it was served on June 2, 2020.

Counsel for Defendant was new to the case and asked that the matter be continued

until February 18, 2021, to conduct research. The trial court granted Defendant’s

motion for a continuance. The court minutes of January 21 reflect that the matter

was passed and reset for February 18, 2021.

The minutes of February 18 reflect that the matter was again passed and set

for hearing on May 18, 2021. The record does not contain a transcript of the hearing.

On March 18, 2021, Defendant’s attorney and an Assistant District Attorney

appeared in court, and an order expunging Defendant’s conviction was signed by the

trial court. The Bureau did not appear for that hearing, as it had been informed that

the hearing was slated for May 18, not March 18.
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ASSIGNMENT OF ERROR

The Bureau assigns as error the trial court’s determination that the offense of

Stalking is eligible for expungement.

ANALYSIS

Whether the law allows expungement of an arrest or conviction of a particular

offense represents a question of law.

Defendant pleaded guilty and sentencing was deferred pursuant to La.Code

Crim.P. art. 893(E), which allows a trial court to suspend the imposition or execution

of the sentence of a defendant convicted of a first-offense noncapital felony when it

appears that it is in the best interest of the public and the defendant. Certain offenses

may not be deferred. At the conclusion of the defendant’s probationary period, the

trial court may set the conviction aside and dismiss the prosecution. Such a dismissal

“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

habitual offender[.]” Id.

Expungement of felony convictions is governed by La.Code Crim.P. art. 978,

which provides, in pertinent part:

A. Except as provided in Paragraph B of this Article, a person
may file a motion to expunge his record of arrest and conviction of a
felony offense if any of the following apply:

(1) The conviction was set aside and the prosecution was
dismissed pursuant to Article 893(E).

(2) More than ten years have elapsed since the person completed
any sentence, deferred adjudication, or period of probation or parole
based on the felony conviction, and the person has not been convicted
of any other criminal offense during the ten-year period, and has no
criminal charge pending against him. The motion filed pursuant to this
Subparagraph shall include a certification obtained from the district
attorney which verifies that, to his knowledge, the applicant has no

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convictions during the ten-year period and no pending charges under a
bill of information or indictment.

(3) The person is entitled to a first offender pardon for the offense
pursuant to Article IV, Section 5(E)(1) of the Constitution of Louisiana,
provided that the offense is not defined as a crime of violence pursuant
to R.S. 14:2(B) or a sex offense pursuant to R.S. 15:541.

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), unless otherwise authorized in Paragraph E of this Article.

Article 978 was enacted by 2014 La. Acts No. 145, effective August 1, 2014.1 Since

its enactment, Article 978 has exempted crimes of violence as defined in La.R.S.

14:2(B) from expungement.

Stalking was added to the list of crimes of violence enumerated in La.R.S.

14:2 by 2003 La. Acts No. 637. Therefore, at the time Defendant pleaded guilty to

Stalking, that crime was enumerated as a crime of violence in La.R.S. 14:2, and

La.Code Crim.P. art. 978(B)(1) provided:

No expungement shall be granted nor shall a person be permitted
to file a motion to expunge the record or arrest and conviction of a
felony offense if the person was convicted of the commission or
attempted commission of . . . [a] crime of violence as defined by or
enumerated in R.S. 14:2(B), unless authorized in Paragraph E of this
Article.

Paragraph (E) allows exceptions for expungement of the arrest and conviction

records of people convicted of aggravated battery, second degree battery, aggravated

criminal damage to property, simple robbery, purse snatching, or illegal use of

weapons or dangerous instrumentalities if, after the lapse of ten years, the person has

had no convictions and if no criminal charges are pending against him. Defendant

was not convicted of a crime excepted by La.Code Crim.P. art. 978 (E). Furthermore,

1
See La.Const. art. 3, § 19.
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La.R.S. 14:40.2(J) provides, “A conviction for stalking shall not be subject to

expungement as provided for by Title XXXIV of the Code of Criminal Procedure.”

The trial court erred in granting Defendant’s motion to expunge his arrest and

conviction for Stalking, a violation of La.R.S. 14:40.2. The trial court’s judgment is

reversed. All costs of this proceeding are taxed to Defendant/appellee, John Davis,

Jr.

REVERSED.

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