APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 18-5950, DIVISION
"H" HONORABLE GLENN B. ANSARDI, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, STATE OF LOUISIANA, THROUGH
THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, PUBLIC
SAFETY SERVICES, OFFICE OF STATE POLICE, BUREAU OF CRIMINAL
IDENTIFICATION AND INFORMATION
composed of Judges Jude G. Gravois, Marc E. Johnson, and
Stephen J. Windhorst
E. JOHNSON JUDGE
State of Louisiana, Department of Public Safety and
Corrections, Public Safety Services, Louisiana Bureau of
Criminal Identification and Information ("the
Bureau"), appeals the January 23, 2019 judgment of the
24thJudicial District Court granting Shawn M.
George's ("Defendant") motion for expungement
of the record of his arrest and conviction for La. R.S.
14:35.3, domestic abuse battery, La. R.S. 14:35, simple
battery, and La. R.S. 14:63, criminal trespass. For the
following reasons, we affirm in part, vacate in part, and
remand for further proceedings.
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.
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.
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.
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
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.
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.
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."
current laws governing expungement, La. C.Cr.P. arts. 971 -
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 ...