SUPERVISORY WRITS TO THE CRIMINAL DISTRICT COURT, PARISH OF
Genovese, J., would grant for the following reasons:
case concerns the legal and procedural consequences of a
fatally flawed plea bargain. The state and defendant herein
reached an agreement (a constitutional contract) allowing
defendant to plead guilty to a felony-grade marijuana offense
in exchange for a suspended sentence pursuant to La.C.Cr.P.
art. 893. The trial court accepted this agreement.
After satisfying his debt to society, defendant moved to set
aside his arrest and conviction pursuant to La.C.Cr.P. art.
893(E)(2), which the trial court granted. Thereafter,
defendant moved to expunge his arrest and conviction as
authorized by La.C.Cr.P. art. 978(A). However, the lower courts
denied his motion. Defendant thereafter filed a writ with
this Court seeking to reverse the lower courts and have his
arrest and conviction expunged.
893(E)(2) allows defendants who received a deferred
sentence to request that their convictions be set aside
following the satisfactory completion of their probationary
period. However, defendant here received a suspended
sentence. Thus, the trial court improperly granted
defendant's motion to set aside his sentence per Article
defendant was not eligible for a deferred sentence because
his conviction stemmed from La.R.S. 40:966(A)(1), a crime
which La.C.Cr.P. art. 893(E)(1)(b) specifically excludes from
the deferral-eligible offenses. Because defendant was not
eligible for a deferral, he was also ineligible to have his
conviction set aside per La.C.Cr.P. art. 893(E)(2). Thus, he
is not eligible at this time to receive an expungement.
a fundamental and principal cause of his agreement to enter
his plea was the benefit of La.C.Cr.P. art. 893, the
agreement is invalid, and defendant's plea is no good.
Defendant should be permitted the opportunity to withdraw his
guilty plea. I would remand this matter to the trial court
for a hearing to determine whether defendant wishes to
withdraw his flawed plea. If so, then the trial court should
determine whether defendant's plea was constitutionally
infirm and decide whether the plea was induced by what
defendant justifiably believed to be a valid plea bargain,
but which, as a matter of law, could not be kept. State
v. Allah, 17-0785 (La. 1/9/18), 232 So.3d 554.
JOHNSON, Chief Justice, concurs and assigns reasons.
Stiles seeks review of the district court judgment which
denied his motion to expunge his record of arrest and
conviction. He contends that he is entitled to an expungement
under La.C.Cr.P. art. 978(A)(1) because the district court
granted his February 26, 2014 Motion to Set Aside and Dismiss
Prosecution. Because his conviction was not validly
dismissed, I agree with the decision of the Court to deny his
La.C.Cr.P. art. 978(A), a person may file a motion to expunge
his or her record of arrest and conviction of a felony
offense if one of the two situations 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 convictions during the ten-year period and
no pending charges under a bill of information or indictment.
March 16, 2012, Mr. Stiles pleaded guilty under State v.
Crosby and La.C.Cr.P. art. 893 to possession with intent
to distribute marijuana, a violation of R.S. 40:966(A)(2). He
was sentenced to serve five years at hard labor, and his
sentence was suspended and he was placed on five years of
active probation. Mr. Stiles thus received the benefit of
La.C.Cr.P. art. 893(A)(1), pursuant to his plea agreement,
which allowed the district court to fully suspend his
five-year sentence. Likewise, Mr. Stiles was not eligible to
have his sentence deferred because La.C.Cr.P. art.
893(E)(1)(b) prohibits a court from deferring a sentence for
a violation of R.S. 40:966(A)(2), the offense to which he
pleaded guilty. Accordingly, Mr. Stiles is not eligible to
expunge his record pursuant to La.C.Cr.P. art. 978(A)(1)
because his conviction was not validly dismissed.
other hand, while currently ineligible, Mr. Stiles may
nonetheless file a motion in the future to expunge his record
of arrest and conviction pursuant to La.C.Cr.P. art.
978(A)(2). For these reasons, I agree ...