State v. Fabio

315 So.3d 388

STATE of Louisiana, Plaintiff-Appellee

v.Anthony Henry FABIO, Defendant-Appellee

No. 53,790-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered March 3, 2021

JERICHA PAIGE REMONDET, ADRIENNE ELIZABETH AUCOIN, Counsel for Appellant, State of Louisiana, Dept. of Public Safety and Corrections, Office of State Police

THE HATCH LAW FIRM, LLC, By: Christopher Hatch, Counsel for Appellee, Anthony Henry Fabio

JOHN SCHUYLER MARVIN, District Attorney, RICHARD RAY, Assistant District Attorney, Counsel for Appellee, State of Louisiana

Before GARRETT, STONE, and COX, JJ.

GARRETT, J.

The State of Louisiana, through the Department of Public Safety and Corrections, Public Safety Services, Office of State Police, Bureau of Criminal Identification and Information ("the Bureau"), appeals from a trial court order which granted Anthony Henry Fabio's motion for expungement. For the reasons set forth below, we reverse and vacate the order of expungement signed by the trial court.

FACTS

Fabio, who was born in November 1992, was arrested in February 2017 for indecent behavior with a juvenile. The amended bill of information stated that the offense was a violation of La. R.S. 14:81(A), it occurred in January 2015, the victim's date of birth was in February 1998, and there was an age difference of greater than two years between the victim and Fabio.¹

On April 24, 2018, Fabio pled guilty to an amended charge of misdemeanor carnal knowledge of a juvenile, a violation of La. R.S. 14:80.1. No factual basis for the guilty plea was placed on the record nor was the defendant "Boykinized." Fabio was ordered to pay a fine of $500 and court costs; to serve six months in the parish jail, suspended; and to be on active supervised probation for one year. Additionally, he was prohibited from engaging in substitute teaching activities while on probation or being present on any secondary, elementary, or middle school grounds. The trial court invoked La. C. Cr. P. art. 894 and deferred the sentence.

On June 14, 2019, Fabio filed a motion to set aside his conviction and dismiss the prosecution, pursuant to La. C. Cr. P. art. 894. He asserted that he had paid his fine and court costs and satisfactorily completed all of his remaining probation conditions. The motion was granted by order signed June 17, 2019.²

In July 2019, Fabio filed a motion for expungement of the record of his misdemeanor conviction, utilizing the form established in La. C. Cr. P. art. 989. Pursuant to La. C. Cr. P. art. 980, the Bureau filed an affidavit of response in August 2019, opposing the expungement with reasons and requesting a contradictory hearing. The reasons given by the Bureau were as follows:

OPPOSITION: Article 977 (C) provides: "No person shall be entitled to expungement of a record under either of the following circumstances ... (1) The misdemeanor conviction arose from circumstances involving or is the result of an arrest for a sex offense as defined in R.S. 15:541, except that an interim expungement shall be available as authorized by the provisions of Article 985.1 of this Code." La. R.S. 15:541(24)(a) defines "sex offense" and the offense of Indecent Behavior with Juveniles is included in this definition. Defendant was arrested for Indecent Behavior with Juveniles, a "sex offense," and was convicted of Misdemeanor Carnal Knowledge of a Juvenile. He is therefore not eligible for an expungement of the record of his misdemeanor conviction as his misdemeanor conviction is the result of an arrest for a "sex offense."

A hearing was held on January 7, 2020. The judge who presided over the expungement matter was not the judge who had accepted the guilty plea. Fabio argued that the dismissal of the prosecution pursuant to La. C. Cr. P. art. 894 had the same effect as an acquittal and, as a result, the prohibitory language in La. C. Cr. P. art. 977 no longer applied to him. The Bureau contended that, under State v. Cardenas , 2013-2982 (La. 7/1/14), 145 So. 3d 362, a conviction set aside under La. C. Cr. P. art. 894(B)(2) was still considered a conviction for purposes of expungement. At the conclusion of the hearing, the trial court took the matter under advisement.

On January 17, 2020, the trial court signed a written opinion/order in which it granted the motion for expungement. It ruled as follows:

The Court is aware that the original charge was reduced by the District Attorney from a felony to a misdemeanor offense. The defendant pled guilty to the amended charge and the sentence was amended to state that the sentence was imposed pursuant to [ La. C. Cr. P. art.] 894. The granting of the Judgment of Dismissal of the conviction pursuant to Article 894 serves as an acquittal of the offense. Accordingly, Defendant should be entitled to claim the benefits of an expungement. Failure to allow defendant to avail himself to this remedy would appear to violate his Fourteenth Amendment right to due process pursuant to the United States’ Constitution.

An "order of expungement of arrest/conviction record" form set forth in La. C. Cr. P. art. 992 was filled out and signed by the trial court on January 17, 2020. Thereafter, the Bureau filed the instant appeal.

LAW

Relevant Articles and Statutes

Louisiana law provides for the expungement of certain arrest and conviction records under limited circumstances. Obtaining an expungement of these records allows for the removal of a record from public access but does not result in the destruction of the record. La. C. Cr. P. art. 971(1). The current laws governing expungement, La. C. Cr. P. arts. 971 to 995,³ were enacted in 2014 when the former law underwent a comprehensive revision.⁴ See 2014 La. Acts, No. 145. The 2014 revision balanced the employment needs of persons who were required to undergo criminal history checks and the desire for public safety. La. C. Cr. P. art. 971(3) - (7). The revised provisions sought to streamline the expungement process and implement uniformity, with several articles providing the forms to be used throughout the process. The new provisions also continued the prior law's public policy that convictions for some offenses – including certain sex offenses – would not be expungeable.

La. C. Cr. P. art. 977, which addresses expungement of a record of arrest and conviction of a misdemeanor offense, now states:

A. A person may file a motion to expunge his record of arrest and conviction of a misdemeanor offense if either of the following apply:

(1) The conviction was set aside and the prosecution was dismissed pursuant to Article 894(B) of this Code.

(2) More than five years have elapsed since the person completed any sentence, deferred adjudication, or period of probation or parole, and the person has not been convicted of any felony offense during the five-year period, and has no felony 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 felony convictions during the five-year period and no pending felony charges under a bill of information or indictment.

B. The motion to expunge a record of arrest and conviction of a misdemeanor offense shall be served pursuant to the provisions of Article 979 of this Code.

C. No person shall be entitled to expungement of a record under any of the following circumstances:

(1) The misdemeanor conviction arose from circumstances involving or is the result of an arrest for a sex offense as defined in R.S. 15:541 , except that an interim expungement shall be available as authorized by the provisions of Article 985.1 of this Code.⁵

(2) The misdemeanor conviction was for domestic abuse battery.

(3) The misdemeanor conviction was for stalking ( R.S. 14:40.2 ).

D. Repealed by Acts 2020, No. 78, § 2. [Emphasis added.]⁶

In La. R.S. 15:541(24)(a), " R.S. 14:81 (indecent behavior with juveniles)" is included in the definition of "[s]ex offense."

La. C. Cr. P. art. 894(B) states, in pertinent part:

(1) When the imposition of sentence has been deferred by the court, as authorized by this Article, and the court finds at the conclusion of the period of deferral that the defendant has not been convicted of any other offense during the period of the deferred sentence, and that no criminal charge is pending against him, the court may set the conviction aside and dismiss the prosecution[.]

(2) The dismissal of the prosecution shall have the same effect as an acquittal, except that the conviction may be considered as a prior offense and provide the basis for subsequent prosecution of the party as a multiple offender. Discharge and dismissal under this provision may occur only once with respect to any person during a five-year period[.]

The current law also provides for "interim expungement," which is defined in La. C. Cr. P. art. 972(3) as meaning "to expunge a felony arrest from the criminal history of a person who was convicted of a misdemeanor offense arising out of the original felony arrest. Only the original felony arrest may be expunged in an interim expungement." La. C. Cr. P. art. 985.1, which concerns an interim motion to expunge a felony arrest from a person's criminal history in certain cases resulting in a misdemeanor conviction, states:

A. A person may file an interim motion to expunge a felony arrest from his criminal history when that original arrest results in a conviction for a misdemeanor. In such cases, only the original felony arrest may be expunged.

B. The interim motion to expunge a felony arrest which results in a misdemeanor conviction from criminal history is separate and distinct from an expungement of a final conviction pursuant to Articles 976, 977, and 978 of this Code.

C. Except as provided in Paragraph D of this Article, an interim motion to expunge a felony arrest from criminal history shall follow the same procedures and fees established pursuant to the provisions of Article 979 et seq. of this Code.

D. An interim

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