State of Louisiana appeals the judgment granting Shawn M. George’s (“Defendant”) motion for expungement of the record of his arrest and conviction
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According to the trial testimony, Defendant forced his way into the Gretna,
La. home of his then wife, Asharia Feloss, on July 11, 2005. Asharia shared the
home with her mother, Joann Feloss, and her three children, a six-week-old baby
boy and 22-month-old twins. Initially, Defendant banged on the front door saying
“I want to see the kids.” Asharia told Defendant that she was not letting him in
and to call to make arrangements to see the children. Joann Feloss then observed
Defendant under Asharia’s car pulling things off, or pretending to do so. When
Asharia opened the door to tell Defendant to get away from her car, he pushed past
her and entered the home. The twins ran up to their father and he grabbed one of
them. Joann Feloss was able to get the child away from his father, and she held on
to both twins as the three adults continued to yell and push each other. At trial,
Asharia testified that she popped Defendant’s necklace and her mother left to call
for help while she and Defendant continued to struggle. When Defendant noticed
his mother-in-law calling for help, he grabbed the phone and slammed it on the
floor. Defendant and Asharia continued to tussle as Defendant attempted to get the
children away from their mother. Joann Feloss went into another room to retrieve
Asharia’s cell phone and call for help. By the time Defendant realized that she was
gone and tried to get the phone from her, Joann Feloss was already on the phone
with 911. Defendant then said that he was leaving, and although he still appeared
to be angry at Asharia, she testified that she and her mother let their guard down.
Defendant then suddenly ran back into the home and took the infant baby off of the
couch and ran to his car with him. Asharia jumped on Defendant’s lap so he could
not drive off with the baby. They both got out of the car and a police officer
appeared. Initially the police officer said that he would be unable to assist the
family with resolving the situation because Defendant was the father of the baby,
but the officer arrested Defendant once Asharia disclosed that Defendant had
forced his way into her home. At trial, Asharia testified that she gave Defendant a
glass of water while he awaited transport to jail.
At the September 17, 2007 trial at Second Parish Court for the Parish of
Jefferson, Asharia, Joann Feloss, and Defendant all testified. Defendant’s mother,
Ms. Beverly Pierre, also testified. A tape of Joann Feloss’s 911 call was admitted
as evidence and played at the trial. Defendant testified that Asharia let him inside
of the house but then refused to let him see the children. Defendant further
testified that he was crying most of the time during the incident and that he just
wanted to see his children. He admitted to struggling with his then wife and
mother-in-law over the children, but said that he is not violent and did not push
anyone. The trial court judge noted that Joann Feloss seemed “virtually hysterical”
during the 911 call.
At the conclusion of the bench trial, Defendant was convicted of one count
of La. R.S. 14:35 simple battery, one count of 14:35.3 domestic abuse battery
under the Child Endangerment Statute, and one count of 14:63 criminal trespass.
For the simple battery and criminal trespass charges, Defendant was sentenced to
60 days commitment in Jefferson Parish Correctional Center (“JPCC”), suspended,
and six months active probation with special conditions – a $150.00 fine plus court
costs. For the domestic abuse battery charge, Defendant was sentenced to six
months in parish prison, all but 15 days suspended, 15 days to be served without
the benefit of parole, probation or suspension of sentence at JPCC, the remaining
balance of that sentence to be deferred, one year active probation with special
conditions – the completion of 32 hours of community service and a Domestic
Abuse Battery Prevention program required, a $500.00 fine, plus court costs to be
paid, and prohibition from owning or possessing a firearm during the entirety of
the sentence. Probation on the domestic abuse battery sentence was to run
concurrent with probation on the simple battery and criminal trespass charges. The
trial court judge also issued a stay away order in conjunction with the domestic
abuse battery charge and warned Defendant that violation of that order was a
felony offense. Parish Court Criminal/Traffic records show that, by November 28,
2007, all of Defendant’s fines and court costs were paid and that, by March 26,
2008, Defendant had completed all programs and his probation status was
converted to inactive and that record was finished.
On September 13, 2018, Defendant filed pro se Motions for Expungement
and to Set Aside Conviction (of domestic abuse battery, simple battery and
criminal trespass) and Dismiss the Prosecution at the 24th Judicial District Court.
On October 22, 2019, after a hearing to show cause, the district court granted
Defendant’s Motion to Set Aside the Conviction and Dismiss the Prosecution for
purposes of expungement.
In response to the Motion for Expungement, both the Jefferson Parish
Sheriff’s Office and the Office of the District Attorney filed Affidavits of
Response indicating that they had no opposition to Defendant’s Motion for
Expungement. The Bureau, however, filed an Affidavit of Response on October 3,
2018 opposing the Motion because La. C.Cr.P. art. 977(C)(2) states “[n]o person
shall be entitled to expungement of a record . . . [for t]he misdemeanor conviction
 for domestic abuse battery.” The Bureau stated in its affidavit that if
Defendant’s pending Motion to Set Aside Conviction and Dismiss Prosecution was
granted, and the required fee was paid, then the Bureau only objected to
expungement of the domestic abuse battery arrest and conviction. The Bureau’s
Affidavit requested a contradictory hearing also.
The district court then issued an Order on October 26, 2018 that stated if the
district attorney, the arresting law enforcement agency, or the Bureau opposed the
Motion for Expungement, then that agency should file a motion within 60 days of
the service of said order, but also that no contradictory hearing shall be required as
evidenced by the “Affidavits of No Opposition” executed by the named agencies,
and attached to the order. The Bureau never received notice of a contradictory
hearing date and the district court judge granted Defendant’s Motion of
Expungement for all three charges on January 23, 2019. The Bureau then filed a
motion for the instant appeal on February 22, 2019. There has been no response
from Defendant to date.
LAW AND ANALYSIS
On appeal, the Bureau assigns as error the trial court’s failure to set a
contradictory hearing as requested on its Affidavit of No Response and required by
La. C.Cr.P. art. 980, and the grant of Defendant’s motion for expungement of La.
R.S 13:35.3 domestic abuse battery. "Questions of law involving the correct
interpretation of legislation are reviewed de novo, without deference to the legal
conclusions of the trial court.” State v. Merrill, 14-530 (La. App. 3 Cir. 6/11/14);
140 So.3d 1237, 1239, writ denied, 14-1227 (La. 9/19/14); 149 So.3d 249, citing
Durio v. Horace Mann Ins. Co., 11-0084 (La. 10/25/11); 74 So.3d 1159, 1168.
“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." Id.
The current laws governing expungement, La. C.Cr.P. arts. 971 – 9951 were
enacted in 2014. See La. C.Cr.P. arts. 971-995. The Louisiana Bureau of Criminal
Identification and Information may object to a motion of expungement. La.
C.Cr.P. arts. 979 and 980(B)(2). “[I]f the Louisiana Bureau of Criminal
Identification and Information objects to the granting of the motion to expunge a
record, it shall file an affidavit of response with reasons for the objection in the
record with service to the defendant within sixty days from the date of the service
of the motion.” La. C.Cr.P. art. 980(B)(2). Any objection timely filed shall have a
contradictory hearing and the district attorney or an objecting party shall request
that the matter be set for a contradictory hearing. La. C.Cr.P. art. 980(D). A notice
of hearing shall be served on the defendant and the district attorney of the parish of
conviction, the Louisiana Bureau of Criminal Identification and Information, and
the arresting law enforcement agency. La. C.Cr.P. arts. 979, 980(D).
The Bureau filed their Affidavit of Response and Opposition to the Motion
for Expungement (filed by Defendant on September 13, 2019) with Reasons timely
on October 3, 2019. Upon review of the record and La. C.Cr.P. art. 980, we find
that the Bureau’s Affidavit indicating their opposition, with reasons, and requesting
a contradictory hearing was sufficient, and the district court committed error when
it did not set the matter for a contradictory hearing and serve all parties with the date
of that hearing. Instead, the trial court ordered the Bureau to file a motion within 60
days if it objected to the Motion for Expungement.
The Bureau’s Affidavit explained that its objection was only regarding the
expungement of record of arrest and misdemeanor conviction of La. R.S. 14:35.3,
domestic abuse battery, which is explicitly prohibited by law, and the fee waiver
granted to Defendant. La. C.Cr.P. arts. 977(C)(2), enacted in 2014, states “No
person shall be entitled to expungement of a record [if t]he misdemeanor conviction
1 La. C.Cr.P. art. 996 was added in 2015.
was for domestic abuse battery, which was not dismissed pursuant to Code of
Criminal Procedure Article 894(B).” See H.B. 55, 2014 Reg. Sess. (La. 2014). La.
C.Cr.P. art. 977(C)(2) was revised the following year to remove the exception for
domestic abuse battery misdemeanor convictions that were set aside and
prosecutions dismissed pursuant to La. C.Cr.P. art. 894. See S.B. 27, 2015 Reg.
Sess. (La. 2015). Had Defendant attempted to set aside his conviction and obtain an
expungement after completion of his sentence and probation in 2008 under La. R.S.
44:9(E)(3)(a), the law governing expungement at the time, he may have been
successful. See La. R.S. 44:9 (repealed 2015). La. R.S. 44:9(E)(3)(a) authorized
courts to order the expungement of the record of a misdemeanor conviction
dismissed pursuant to Article 894 of the Code of Criminal Procedure. State v.
Cardenas, 13-2982 (La. 7/1/2014); 145 So.2d 362, 367. La. C.Cr.P. art. 894(B)(1)
provided for setting aside convictions and dismissing the prosecution when the
sentence was deferred and no other criminal charges were pending at the end of the
period of deferral. Id. See La. C.Cr.P. art. 894. In 2010, the Legislature amended
La. R.S. 44:9 to provide a pathway to expungement for those persons who could not
take advantage of the set aside provided by La. C.Cr.P. art. 894(B). Cardenas, supra
at 367-68. Because of subsequent amendments in the Senate before the final bill
passed, from June, 2010 until it was repealed in 2015, under La. R.S. 44:9,
misdemeanor convictions could be expunged five years after the finality of
conviction and sentence, but crimes involving sexual acts or acts of domestic
violence were excluded. Id.
In State v. Cardenas, the defendant was involved in an incident with his wife
in the presence of his minor child and charged with domestic abuse battery in 2006.
Id. at 363. After a 2007 bench trial, the defendant was sentenced to six months
imprisonment, all but 60 days suspended, incarcerated at home, and one year of
active probation with special conditions. Id. The defendant successfully completed
his probation in 2010 and thereafter filed a motion to reconsider sentence. Id. The
trial court set aside his conviction and dismissed the prosecution under La. C.Cr.P.
art. 894 in 2011. Later that year, the defendant filed an Expungement form. Id. The
district court granted that motion also. The district court issued two orders in
September 2012. The first order directed the named parties to ‘“expunge any and
all public records of the arrest and disposition . . . the date of arrest being on or about
July 19, 2006, and the disposition of these charges namely, DOMESTIC ABUSE
BATTERY WITH CHILD ENDANGERMENT (MISDEMEANOR”’. Id. The
second order directed the named parties to only expunge the record of the
defendant’s arrest on July 19, 2006. Id.
The State appealed to the First Circuit. Id. at 364. The First Circuit declined
to review the judgment granting Cardenas’s motion to reconsider, but affirmed the
district court’s expungement order in a split-panel decision. Id. The Louisiana
Supreme Court reversed the First Circuit’s decision and vacated the district court’s
orders of expungement. Id. at 369. In its analysis leading to the decision to vacate
the orders of expungement, the Louisiana Supreme Court applied La.
R.S.44:9(A)(5), the law at the time the district court issued their expungement order
and the law at the time of their decision.2
Id. at 368.
This Court, in turn, will apply the current law governing expungement; the
same law in effect at the time the district court granted Defendant’s Motion for
Expungement. La. C.Cr.P. art. 977(C)(2) expressly forbids the expungement of
domestic abuse battery misdemeanor convictions. Therefore, we find that the district
court erred in the instant case by granting Defendant’s motion and ordering the
expungement of Defendant’s record with regards to the domestic abuse battery arrest
2 The Cardenas court acknowledged that La. C.Cr.P. art. 977 (which allowed expungement of domestic
battery abuse misdemeanor convictions dismissed by La. C.Cr.P. art 894(B) until June 23, 2015 (as a
result of 2015 La. S.B. 27)) would be the law a month from their decision, but expressed no opinion as to
“whether [Cardenas would] be entitled to expungement of his record of arrest and conviction for domestic
abuse battery under [that] latest expression of legislative will.”
and conviction records. To sum, we also find that the district court committed error
when it failed to set a contradictory hearing and serve notice on all parties in response
to the Bureau’s timely filed request for a contradictory hearing.
Outcome: For the foregoing reasons, we find that the district court erred when it failed
to set a contradictory hearing in response to the Bureau’s Affidavit of Opposition.
The district court also erred when it granted the motion to expunge Defendant’s La.
R.S. 14:35.3, domestic abuse battery arrest and conviction records, in violation of
La. C.Cr.P. art. 977(C)(2). Accordingly, the part of the expungement order granting
the expungement of the arrest and conviction records related to the La. R.S. 14:35.3, domestic abuse battery charge is reversed, and expungement of those records is denied. This matter is remanded to the district court for correction of the
expungement order, consistent with this opinion, to be served on all parties.