State of Louisiana VS Leonard Cardenas, III

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0509 STATE OF LOUISIANA VERSUS C L III Judgment Rendered V N2 6 2 13 On Appeal from the 19th 7udicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 8 006 06 The Honorable Donald R Johnson Judge Presiding Hillar C Moore III District Attorney Monisa L Thompson Assistant District Attorney Attorneys for Appellant State of Louisiana Baton Rouge Louisiana James G Baton Knipe III Rouge Louisiana BEFORE R a Attorney for Appellee C L III PARRO GUIDRY AND DRAKE JJ a DRAKE J This is an appeal by the State of Louisiana from a judgment of the trial court expunging the arrest recard of defendant L III related to a July 19 2006 date C of arrest charging domestic abuse battery and domestic abuse battery while a minor child twelve years of age or younger was present at the time of the offense in violation of La R 14353 and La R S I 14353 S FACTS AND PROCEDURAL HISTORY Defendant was arrested and charged with the misdemeanors of domestic abuse battery pursuant to La R 14 and domestic abuse child endangerment S 353 S 35 3 pursuant to La R 14 arising from an incident on July 19 2006 A trial was held before Judge Todd Hemandez and the defendant was found guilty as charged On November 14 2007 the trial court sentenced defendant and imposed numerous special conditions which included a probationary period After completion of the probationary conditions the trial court terminated defendant s probation upon his motion on May 19 2010 Defendant subsequently filed a motion to reconsider sentence and requested application of La C art 894 P Cr After a hearing on the motion the trial court issued an oral ruling on May 18 2011 and a written ruling on August 27 2011 consistent with the oral ruling granting defendant motion to reconsider sentence and ordering a dismissal s pursuant to La C art 894 P Cr Defendant requested an expungement of his arrest pursuant to La R 44 on July 28 2011 The trial court granted the S 9 expungement of the arrest record related to the July 19 2006 incident on September 5 2012 and signed a judgment on September 17 2012 It is from this judgment that the state has appealed Judge Donald R Johnson issued the judgment granting expungement after he assumed the posirion as trial court judge in criminal section VII of the Nineteenth Judicial District Court when Judge Todd Hernandez the original trial court judge moved from the criminal bench to the civil bench 2 ASSIGNMENT OF ERRORS The state assigns two errors as follows 1 The trial court erred in reconsidering defendant imposed sentence s for domestic abuse battery with child endangerment after that sentence was completed and erred in deferring sentence and dismissing the conviction 2 Defendant convicted of domestic abuse battery with child endangerment was not eligible to have his conviction expunged under La R 44 S 9 5 A APPLICATION OF LA CODE CRIM P ART 894 B The state claims that the trial court incorrectly reconsidered the sentence of defendant pursuant to La C art 894 Defendant responds that the state did P Cr not file a timely appeal of the trial court ruling which vacated deferred and s dismissed his original sentence Therefore defendant claims that the state is barred from asserting any argument regarding the correctness of the court ruling s of May 18 2011 on this appeal of his expungement judgment The trial court held a hearing on the defendant motion for reconsideration of sentence and s request far applicarion of La C art 894 on February 16 2011 The matter P Cr was taken under advisement The trial court set the matter for ruling after both parties filed post hearing memarandums In open court on May 18 2011 the trial court granted defendant motion On August 27 2011 the trial court issued a s written ruling consistent with his oral ruling granting defendant motion for s reconsideration ordering that the defendant sentence on November 14 2007 be s vacated and deferring the sentence originally imposed pursuant to the provisions of La C art 894 The trial court further ordered a dismissal pursuant to the P Cr provisions of La C a 894 retroactive to the date of imposition of original P Cr rt z Although the transcript of the hearing on February 16 20ll is not contained in the Record the ruling of the trial court references the contradictory hearing as do the court minutes 3 While the transcript of the hearing on May 18 201 l is not contained in the Record the court minutes reference the hearing and ruling 3 sentence Even though the state objected on the record there was no appeal of this ruling Louisiana Code of Criminal Procedure article 914 states A A motion far an appeal may be made orally in open court or by filing a written motion with the clerk The motion shall be entered in the minutes of the court B The motion far an appeal must be made no later than 1 Thirty days after the rendition of the judgment or ruling from which the appeal is taken Thirty days from the ruling on a motion to reconsider 2 sentence filed pursuant to Article 881 should such a motion 1 be filed No motion to appeal was filed by the state within thirty days after the trial court s ruling in open court on May 18 2011 The Louisiana Supreme Court squarely addressed the issue of a timely appeal in State v i So 2d 1163 La 1976 wherein the state filed a eazey 337 motion far appeal over four months after the order to quash the defendant s indictment was recorded in the court minutes The state argued that its appeal was timely because it was taken within fifteen days of the date on which it received written notice of the trial judge ruling The supreme court disagreed noting s It is the state s contention that when a matter is taken under advisement written notice of the judgment or ruling subsequently rendered should be sent to the interested parties The state further argues that the time for appealing from such judgments or rulings should commence running only from the date of receipt of notice thereof We are asked to engraft these rules borrowed from the Code of Civil Procedure Code Civ arts 1911 1913 and 2123 onto the P clear statutory language of Code Crim art 914 This we cannot do P While the provisions suggested by the state might indeed prove beneficial supplements to the Code of Criminal Procedure that is a matter which addresses itself to the legislature In the absence of statutory authority to the contrary we will continue to follow the directive of article 914 that motions far appeal must be made no later than fifteen days after the rendition of the judgment or ruling from which the appeal is taken At the time of Veazey La C art 914 permitted only fifreen days after the ruling to P Cr file an appeal La C art 914 was amended by 2003 La Acts No 949 1 to permit thirty P Cx days to file an appeal following a trial court ruling 4 Veazey 337 So at ll64 2d Relying upon T State v Hall 09 La App 5 Cir 5 28 So eazey 1 09 12 3d 281 writ denied 09 La 10 48 So 3d 270 found that an appeal 2660 19 filed by the state more than fifteen days following the rendition of the judgment granting a motion to quash based on double jeopardy was untimely See also State v Gray 98 La 5 740 So 2d 1291 This court relied upon Yeazey in 2902 99 7 holding that the appeal delays in a criminal matter run from the time of the ruling not when the defendant receives notice of the judgment State v Ginn 98 1184 La App 1 Cir 6 718 So 2d 984 985 98 19 The state did not file an appeal following the May 18 2011 ruling of the trial court on defendant smotion to reconsider sentence and requesting application and dismissal under La C art 894 The trial court ruling became final P Cr s when the state failed to take a timely appeal on the disputed ruling See Gray 740 So 2d at 1291 Therefare this court cannot overturn the trial court ruling of s May 18 201 L The state first assignment of error is without merit s EXPUNGEMENT Defendant filed a written motion requesting an expungement of his arrest record on July 28 20ll which the trial court granted signing the judgment on September 17 2012 The state asserts that the trial court incorrectly permitted a case involving domestic abuse to be expunged The state and defendant argue that different provisions of La R 44 apply to the facts of this case S 9 The state claims that La R 44 applies which does not permit expungement of S 9 5 A domestic violence cases Defendant claims that La R 44 and La R S 9 1 A S 3 E 9 44 apply which contain no restrictions regarding domestic violence cases The expungement of criminal recards is provided for in La R 44 which S9 allows only specified criminal arrest and conviction records to be expunged State 5 I v Gerchow 09 La App 1 Cir 3 36 So 3d 304 Louisiana Revised 1055 10 11 Statute 44 has been amended numerous times 9 At the time defendant smotion for expungement was filed La R 44 stated S9 1 A 1 An YP erson who has been arrested for the violation of a municiP al or parish ordinance or for violation of a state statute which is classified as a misdemeanor may make a written motion to the district parish or city court in which the violation was prosecuted or to the district court located in the parish in which he was arrested for expungement of the arrest record under either of the following conditions I b If prosecution has been in stituted and such proceedmgs have been finally disposed of by dismissal sustaining of a motion to quash or acquittal Approximately one year prior to defendant srequest for expungement La S 9 R 44 was amended by 2010 La Acts No 609 1 effective August 15 2010 to add section A which states in pertinent part 5 a Any person who has been convicted for the violation of a state statute which is classified as a misdemeanor may make a written morion to the district parish or city court in which the violation was prosecuted for expungement of the arrest record if five or more years has elapsed between the date of the motion and the successful completion of any sentence deferred adjudication or period of probation ar parole Notwithstanding the provisions of Code of Criminal Procedure Article 892 or 894 or any other 1 provision of law to the contrary regarding the set aside of a conviction or the dismissal of a prosecution an expungement shall occur only once with respect to any person during a five year period No b person shall be entitled to an expungement if the misdemeanor conviction arose from circumstances involving a sexual act or act of domestic violence Emphasis added The state asserts that the defendant is not entitled to have his arrest record expunged since he was convicted of domestic abuse battery Defendant argues that the trial court correctly granted the expungement pursuant to either La R S 1 A 9 44 or La R 449 because his case was dismissed pursuant to La SE 3 P Cr C art 894 6 The supreme court observing the convoluted nature of La R 44 and S9 its related statutes has noted that oobservation that the clarity of these laws ur as amended leaves much to be desired is an understatement State v Expunged Record No 249 044 03 La 7 881 So 2d 104 108 quoting State v 1940 04 2 Savoie 92 93 La 5 637 So 408 409 Since the purpose 1586 1955 94 23 2d of La R 44 is remedial rather than penal it is to be liberally construed to S 9 make the statutory rule apply in more situations than would be the case under strict construction State v Boniface 369 So 2d 115 116 La 1979 Louisiana Revised Statute 44 applies to one who has been arrested 1 A 9 for a misdemeanor and is defendant seeking expungement of his sought expungement of his arrest record arrest record The Furthermore La R S a 3 E 9 44 specifically addresses a case dismissed pursuant to La C art P Cr 894 and states A court may order the destruction or the expungement of the record of a misdemeanor conviction dismissed pursuant to Article 894 of the Code of Criminal Procedure However no destruction of the record shall be ordered for any conviction far a first or second violation of any ordinance or statute making criminal the driving of a motor vehicle while under the influence of alcoholic beverages ar narcotic drugs as denounced by R 14 or 98 S 98 1 Either La R 44 which applies to misdemeanar convictions S 9 a 3 E dismissed pursuant to La C 894 or La R 44 which applies to P Cr S 9 1 A misdemeanor arrests wherein prosecution is instituted and is finally disposed of by acquittal dismissal or sustaining of a motion to quash permits the expungement of a defendant arrest record Louisiana Revised Statute 44 allows the s a 3 E 9 court to order expungement or destruction of the recards of a defendant whose case is dismissed pursuant P Cr to La C 894 The word expungement is distinct from the word destruction and the two words interchangeably or to mean the same thing cannot be used Public records that may be expunged need not be destroyed State v Expunged Record No 249 044 7 881 So 2d at 108 Expungement is defined to mean removal of a record from public access but it does not mean destruction of the record An expunged record is confidential but remains available for use by law enforcement agencies and other specified persons and agencies See La R 44 State v Taylor 11 S9 G 0373 La App 1 Cir 3 91 So 3d 1065 1069 Therefore La R 12 23 70 S a 3 E 9 44 permits expungement or destruction after a misdemeanor conviction is dismissed pursuant to La C art 894 P Cr La R 44 permits only S 9 1 A expungement of a misdemeanor arrest recard This court addressed a situation similar to the present matter in State v Carmen 08 La App 1 Cir 3 opinion rev on otheN 1769 unpublished 09 27 d grounds 09 La 5 34 So 3d 259 In Carmen the state argued that 1213 10 7 the defendant who had been convicted of domestic abuse battery was not entitled to expungement pursuant to La R 44 because he had been convicted S 9 1 A The court determined that expungement of misdemeanor convictions were within the purview of La R 44 which had the prerequisite of dismissal S 9 3 E pursuant to La C art 894 P Cr Since the defendant in CaNmen had had his conviction dismissed pursuant to La C art 894 he was eligible for P Cr expungement pursuant to La R S 3 E 9 44 The Louisiana Supreme Court reversed the appellate court because it found the defendant had a pending charge of felony theft causing him to be ineligible to have his conviction set aside pursuant to La C art 894 Carmen 34 So 3d at 259 P Cr 5 Defendant relies upon Carrraen erroneously claiming that it stands for the proposition that La R 44 applies to the present situation rather than the pxovision of the statute S 9 1 A upon which the state relies La R 44 which was added to the statute by 2010 La S 9 5 A Acts No 609 1 effective August 15 2010 afrer Carmen was decided Therefore Carmen did not decide that La R 44 applied rather than La R 44 Instead this court S 9 1 A S 9 5 A reads Carmen to have determined that La R 44 was the applicable provision to apply S9 3 E when a conviction and dismissal pursuant to La Cart 894 had taken P Cx 6 La R 44 had not yet been enacted S9 5 A 8 place I The remaining issue is whether La R 44 which was added by S 9 5 A 2010 La 1 after Carmen was decided applies or whether either Acts No 609 La RS 44 or La R 44 E applies as the defendant argues 1 A 9 S 93 a It is presumed that every word sentence or provision in law was intended to serve some useful purpose that some effect is to be given to each such provision and that no unnecessary words or provisions were used Citywide Testing Inspections Inc v Bd of Ethics for Elected Officials 96 La App 1 Cir 1656 97 9 5 693 So 2d 1312 1315 writ denied 97 La 10 701 So 2d 1509 97 3 198 The Legislature added paragraph A to La R 44 without removing 5 S9 1 paragraph A or a 3 E Therefore the Legislature intended paragraphs 1 A and E a 3 to continue to have meaning Legislative intent is the fundamental question in all cases of statutory interpretation and rules of statutory construction are designed to ascertain and enforce the intent of the statute State v Campbell 03 La 7 877 So 2d 112 117 It is presumed that the 3035 04 6 Legislature enacts each statute with deliberation and with full knowledge of all existing laws on the same subject Id Thus legislative language will be interpreted on the assumption that the Legislature was aware of existing statutes rules of construction and judicial decisions interpreting those statutes It is further presumed that the Legislature intends to achieve a consistent body of law Id It is a well principle of statutory construction that legislation recognized addressing a more particularized subject matter prevails over more generalized legislation See Corbello v Sutton 446 So 2d 301 La 1984 Louisiana Land Acquisition LLC u Louisiana Dep ofEnvironmental Qucrlity 11 La App t 2037 1 Cir 7 97 So 3d 1144 1148 writ g in part 12 La 12 18 anted 1872 12 16 11 103 So 3d 358 The starting point in the interpretation of any statute is the language of the statute itsel When a law is clear and unambiguous and its application does not 9 lead to absurd consequences the law shall be applied as written and no further interpretation may be made in search of the intent of the Legislature In e Clegg 0323 10 La 7 41 So 3d 1141 1154 The meaning and intent of a law is 10 6 determined by considering the law in its entirety and all other laws on the same subject matter and by placing a construction on the law that is consistent with the ress e terms of the law and with the obvious intent of the Legislature in enacting the law Id Louisiana Revised Statute 449 applies to the eXpungement of a 3 E misdemeanor convictions that are dismissed pursuant to La C art 894 P Cr Louisiana Revised Statute 44 applies to the expungement of arrest records 1 A 9 when a misdemeanor prosecution is instituted and dismissed There is no limit in either La R 44 or La R 44 disallowing expungement of S 9 a 3 E S 9 1 A cases involving domestic violence Louisiana Revised Statute 44 applies 5 A 9 to any person convicted of a misdemeanor whether or not a case has been dismissed pursuant to La C art 894 if five or more years has elapsed P Cr between the date of the motion and the successful completion of any sentence deferred adjudication or period of probation or parole Therefore five years after the completion of the sentence including the probation period a person convicted of a misdemeanor may apply for expungement of the arrest record pursuant to La S 9 R 44 5 A Louisiana Revised Statute 5 A 9 44 is one method for obtaining expungement of the arrest record regarding a misdemeanor conviction Another method of obtaining expungement of the record of a misdemeanar conviction is pursuant to La R 44 which requires the defendant to have his S 9 a 3 E conviction dismissed pursuant to La P Cr C art 894 A third method of expungement for misdemeanors applies only to arrest records and a defendant 10 must comply with La R 44 which requires dismissal acquittal ar the S 9 1 A sustaining of a motion to quash after the institution of the prosecution In this case either La R 44 or E is more particular as S9 1 A 3 a each one applies to misdemeanors that have been dismissed Louisiana Revised Statute 44 even applies once the defendant is convicted if the case is a 3 E 9 dismissed pursuant to La C art 894 the exact situation of the present case P Cr Louisiana Revised Statute 44 applies to any misdemeanor conviction if 5 A 9 five years has passed since the completion of the sentence or probation even if the case was not dismissed by La C art 894 The present case does not involve P Cr a situation in which the defendant has waited five years since the serving of his sentence ar probation to seek expungement The sentence in this case was complete on May 19 2010 when the trial court terminated defendant sprobation and the motion for expungement was filed on July 28 201 L Therefore La R S 5 A 9 44 does not apply to the present situation and neither does the limitation S contained in La R b 5 A 9 44 with regard to domestic violence The defendant in the present case had his case dismissed pursuant to La C art P Cr 894 Louisiana Revised Statutes R 44 and E are more directly S 9 1 A a 3 applicable to the present situation and have no limitation on domestic violence cases being ineligible for expungement Therefore the trial court correctly granted s defendant expungement of his arrest record pursuant to La R 44 S9 1 A CONCLUSION For the foregoing reasons the judgment of the trial court is affirmed Costs of the appeal in the amount of 1 are assessed to appellant State of 50 199 Louisiana AFFIRMED 11 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NLIMBER 2013 CA 0509 STATE OF LOUISIANA VERSUS C L III GUIDRY J dissents in part and assigns reasons GUIDRY J dissenting in part I respectfully dissent from the portion of the majority opinion affirming the trial court granting of defendant request for expungement of his arrest record s s In the instant case the defendant requested expungement of a July 19 2006 misdemeanor arrest for which he was ultimately convicted Louisiana Revised Statute 44 provides that any person who has been arrested for violation of 1 A 9 a municipal ar parish ordinance or for violation of a state statute which is classified as a misdemeanor may make a written motion for expungement of the anest record if prosecution has been instituted and such proceedings have been finally disposed of by dismissal sustaining of a motion to quash or acquittal However contrary to the majority assertion La R 449 nnakes no reference to expungement s SA 1 of an arrest record when the proceedings conclude with a conviction nor when a conviction is subsequently dismissed under La C art 894 P Cr Additionally although La R 44 permits expungement of the S 9 a 3 E record of the misdemeanor conviction dismissed pursuant to La C art 894 it P Cr does not state that a court may order expungement of an arrest record when a misdemeanor conviction is dismissed P pursuant to La GCr art 894 Rather La R 44 relates specifically to obtaining expungement S9 a 5 A of an arrest record after a conviction of a misdemeanor and allows for expungement if five or more years have elapsed between the date of the motion and the successful completion of any sentence deferred adjudication or period of probation or parole However no person shall be entitled to an expungement if the misdemeanar conviction arose from circumstances involving a sexual act or act of domestic violence La R 449 Because the defendant in the S A b 5 instant case was charged and convicted of domestic abuse battery and domestic abuse child endangerment he is not entitled to seek expungement of his arrest record Therefore I respectfully dissent from the majority opinion affirming the s trial court granting of defendant s s request for expungement of his arrest record

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