Opinion
2023 KA 0971
04-24-2024
STATE OF LOUISIANA v. WILLIAM TERRANCE ARMSTRONG
Hillar C. Moore, III, District Attorney, Dylan C. Alge, Assistant District Attorney Baton Rouge, Louisiana, Counsel for Appellee State of Louisiana. J. Rodney Messina Baton Rouge, Louisiana, Counsel for Defendant/Appellee William Terrance Armstrong.
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. 03-19-0522, Section 3 The Honorable Bradley C. Myers, Judge Presiding
Hillar C. Moore, III, District Attorney, Dylan C. Alge, Assistant District Attorney Baton Rouge, Louisiana, Counsel for Appellee State of Louisiana.
J. Rodney Messina Baton Rouge, Louisiana, Counsel for Defendant/Appellee William Terrance Armstrong.
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
THERIOT, J.
The defendant, William Terrance Armstrong, was charged by bill of information with one count of possession of a Schedule II controlled dangerous substance ("CDS") (cocaine) (count one), a violation of La. R.S. 40:967(C), and one count of being a felon in possession of a firearm (count two), a violation of La. R.S. 14:95.1. The defendant pled not guilty and filed a motion to quash count two, after which the trial court granted the motion and dismissed count two. The State now appeals, assigning error to the trial court's grant of the defendant's motion to quash. For the following reasons, we reverse the trial court's ruling and remand to the trial court for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
On June 8, 2015, prior to the instant case, the defendant pled guilty to possession of a Schedule IV CDS (alprazolam), a violation of La. R.S. 40:969(C), under Docket No. 04-13-0638, 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana. That same day, the trial court deferred imposition of sentence and placed the defendant on active, supervised probation for two years pursuant to La. C.Cr.P. art. 893(E). On June 27, 2016, the trial court terminated the defendant's probation early and satisfactorily, ordering that the charges and proceedings be dismissed in accordance with La. C.Cr.P. art. 893(E)(2).,
Louisiana Code of Criminal Procedure article 893(E)(1)(a) allows the court to "defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under [certain] conditions . . . and place the defendant on probation under the supervision of the division of probation and parole."
Following satisfactory completion of the probationary period, La. C.Cr.P. art. 893(E)(2) provides that the court may set the defendant's conviction aside and dismiss the prosecution. Under this provision, the dismissal of the prosecution shall have the same effect as acquittal, with certain exceptions involving habitual offender proceedings and laws relating to cumulation of offenses.
These are the facts as relayed by the trial court in the instant case in its written reasons for ruling, and neither party contests their veracity.
In the instant case, on March 26, 2019, the State charged the defendant with being a felon in possession of a firearm, based on the 2015 conviction for possession of a Schedule IV CDS. Thereafter, the defendant filed the instant motion to quash the felon in possession of a firearm charge and argued that the bill of information failed to charge an offense punishable under a valid statute. See La. C.Cr.P. art. 532(1).
The defendant argued that because his prior felony conviction was set aside pursuant to La. C.Cr.P. art. 893(E)(2), thus having the effect of an acquittal, he was not a convicted felon and therefore not in violation of La. R.S. 14:95.1 by possessing a firearm. The defendant further argued that a conviction set aside under La. C.Cr.P. art. 893 could not be considered as a first offense for purposes of cumulation of offenses because a felon in possession of a firearm charge is not a cumulative offense to a drug charge. The defendant noted that Black's Law Dictionary defined "cumulation of offenses" as an offense committed by repeating the same act at different times. The trial court granted the defendant's motion to quash, thereby dismissing the charge. In its written reasons for ruling, the trial court agreed that La. R.S. 14:95.1 is not a cumulative offense in the sense that it contains any provisions related to first, second, or subsequent convictions. Since the defendant's conviction for possession of a CDS was set aside and the prosecution dismissed, which has the same effect as acquittal, the trial court concluded that it could not be used as a first offense for a violation of La. R.S. 14:95.1 under the law in effect at the time.
MOTION TO QUASH
In its sole assignment of error, the State claims the trial court erred in granting the defendant's motion to quash the felon in possession of a firearm charge. Specifically, the State contends that the trial court erred in finding that a conviction set aside and dismissed pursuant to La. C.Cr.P. art. 893(E) cannot subsequently be used as a predicate offense for a charge under La. R.S. 14:95.1. The defendant argues that the trial court properly granted the motion to quash because the charge of being a felon in possession of a firearm is not a "cumulation of offenses" as contemplated by La. C.Cr.P. art. 893(E)(2), and a conviction set aside under La. C.Cr.P. art. 893 cannot subsequently be used as a predicate offense for that charge.
A motion to quash is, essentially, a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge. State v. Byrd, 962302, p. 18 (La. 3/13/98), 708 So.2d 401, 411, cert, denied sub nom., Peltier v. Louisiana, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998). At a hearing on such a motion, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court. In considering a motion to quash, the trial court must accept as true the facts contained in the bill of information and determine as a matter of law and from the face of the pleadings whether a crime has been charged. Byrd, 96-2302 at p. 18, 708 So.2d at 411. If the bill of information fails to charge an offense punishable under a valid statute, then it is defective and may be declared invalid by the trial court's ruling on the motion to quash. Id. On appeal, the trial court's legal findings on a motion to quash are subject to a de novo standard of review. See State v. Hamdan, 2012-1986, p. 6 (La. 3/19/13), 112 So.3d 812, 816.
Under the general rules of statutory construction, the interpretation of any statutory provision begins with the language of the statute itself. State v. Cook, 2016-1518, p. 6 (La. 5/3/17), 226 So.3d 387, 391 (per curiam). When the provision is clear and unambiguous and its application does not lead to absurd consequences, its language must be given effect, and its provisions must be construed so as to give effect to the purpose indicated by a fair interpretation of the language used. La. C.C. art. 9; La. R.S. 1:4. When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law. La. C.C. art. 10. Moreover, when the words of a law are ambiguous, their meaning must be sought by examining the context in which they occur and the text of the law as a whole. La. C.C. art. 12.
It is presumed that the legislature enacts each statute with deliberation and with fall knowledge of all existing laws on the same subject. Davidson v. State, 2019-1180, p. 6 (La.App. 1 Cir. 7/2/20), 308 So.3d 325, 329, affirmed, 2020-00976 (La. 5/13/21), 320 So.3d 1021 (per curiam). Thus, legislative language is interpreted by the courts on the assumption that the legislature was aware of existing statutes, rules of construction, and judicial decisions interpreting those statutes. In the interpretation of statutes, the specific controls the general. Courts should give effect to all parts of a statute and should not give a statute an interpretation that makes any part superfluous or meaningless, if that result can be avoided. Id.
At issue in this appeal is the proper interpretation and application of La. C.Cr.P. art. 893(E)(2). At the time of the defendant's guilty plea in 2015 and at the time of his Article 893 dismissal in 2016, Article 893(E)(2) provided:
Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution. The dismissal of the prosecution shall have the same effect as acquittal, except that the conviction may be considered as a first offense and provide the basis for subsequent prosecution of the party as a multiple offender, and further shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses. Dismissal under this Paragraph shall occur only once with respect to any person.See La. C.Cr.P. art. 893(E)(2) (as amended and re-enacted by 2010 La. Acts, No. 801, § 2 & 2016 La. Acts, No. 676, § 2).
The above version of the statute was in effect when the defendant was charged with being a felon in possession of a firearm in violation of La. R.S. 14:95.1 in 2019. See La. C.Cr.P. art. 893(E)(2) (as amended and re-enacted by 2018 La. Acts, No. 668, § 2). However, subsequent to the filing of the bill of information against the defendant, the Louisiana legislature amended a portion of Article 893(E)(2) to provide that "[t]he conviction may be considered as a prior offense for purposes of any other law or laws relating to cumulation of offenses." La. C.Cr.P. art. 893(E)(2) (emphasis added) (as amended by 2019 La. Acts, No. 386, § 2). We further note that the legislature amended and re-enacted La. C.Cr.P. art. 893 again in 2020, 2021, and 2022. The substance of subsection (E)(2) has remained the same, except that an Article 893 dismissal may now occur twice, rather than once. See 2020 La. Acts, No. 70, § 1; 2021 La. Acts, No. 61, § 1; and 2022 La. Acts, No. 615, § 2.
As the plain language of La. R.S. 14:95.1 indicates, the proscription against possession of a firearm applies to any person who has been "convicted of' certain felonies. State v. Sparks, 2018-1013, p. 6 (La.App. 4 Cir. 5/8/19), 271 So.3d 308, 312, writ denied, 2019-00941 (La. 1/14/20), 291 So.3d 690. Except where the context clearly indicates otherwise, as used in the Louisiana Code of Criminal Procedure, "convicted" means adjudicated guilty after a plea or after trial on the merits. La. C.Cr.P. art. 934(3). Thus, for the bill of information to charge the offense under La. R.S. 14:95.1, the defendant must have been adjudicated guilty, and thus convicted, of the alleged predicate felony. Sparks, 2018-1013 at p. 6, 271 So.3dat312.
In the instant case, the defendant pled guilty to the predicate felony under Article 893(E). When a defendant pleads guilty under Article 893(E), the trial court adjudicates the defendant guilty. See Louisiana State Bar Ass'n v. Porterfield, 550 So.2d 584, 586 (La. 1989). A conviction occurs, despite the fact that it may later be set aside and the prosecution dismissed. Id. at 588-89. Therefore, we conclude that a defendant who pleads guilty and has the conviction set aside under Article 893(E) still has a conviction under Louisiana law for certain purposes and faces potential prosecution for subsequent offenses. Cf. Sparks, 2018-1013 at p. 10, 271 So.3d at 314 & State v. Jones, 45,476, p. 10 (La.App. 2 Cir. 9/22/10), 47 So.3d 1096, 1104-05 (where there was no "conviction" under the laws of the state where the predicate offense occurred, no predicate offense existed to charge defendant with a violation of La. R.S. 14:95.1).
We note this conclusion is consistent with our review of former La. R.S. 40:983, which allowed a conditional discharge for first offense possession of certain drugs. Under the now-repealed statute, a first time drug offender could plead guilty to an offense without an adjudication of guilt. Because there was no adjudication of guilt, a plea made under the provisions of former La. R.S. 40:983 could not serve as the basis for a charge of being a felon in possession of a firearm. See State v. Guilbeau, 2003-1327, pp. 4-5 (La.App. 5 Cir. 2/23/04), 869 So.2d 201, 203-04 (guilty plea under La. R.S. 40:983 could not serve as predicate offense for habitual offender proceedings); State v. Rowel, 97-1550 (La.App. 4 Cir. 3/31/99), 732 So.2d 123, 124-25 (because guilty plea under La. R.S. 40:983 cannot be considered an adjudication of guilt, it cannot serve as the basis for a charge of being a felon in possession of a firearm); State v. Scott, 95-0880, p. 5 (La.App. 1 Cir. 6/28/96), 677 So.2d 156, 158 (without an adjudication of guilt, a person cannot be a felon in possession of a firearm in violation of La. R.S. 14:95.1).
Former La. R.S. 40:983 was repealed by 1995 La. Acts, No. 1251, § 2.
The statute provided that discharge and dismissal "shall be without court adjudication of guilt and shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime[.]" La. R.S. 40:983 (West 1995).
Thus, it is clear the legislature enacted former La. R.S. 40:983 to provide a more lenient option to certain first-time drug offenders. See Porterfield, 550 So.2d at 588. We note that La. R.S. 40:983 only afforded leniency to those charged with possession of drugs; those charged with possession with intent to distribute drugs were required to plead under La. C.Cr.P. art. 893, which resulted in an adjudication of guilt and conviction. Thus, by subsequently repealing La. R.S. 40:983 and not reenacting a similar statute, it appears the legislature no longer intended to afford leniency to those charged with the less serious offenses, which includes the offense underlying the defendant's guilty plea herein. Accordingly, we find that the legislature intended for convictions under Article 893 to constitute adjudications of guilt and thus convictions.
The defendant herein relies on the provision of La. C.Cr.P. art. 893(E)(2) that provides that "[t]he dismissal of the prosecution shall have the same effect as acquittal[.]" However, this language indicates that an Article 893 dismissal, which necessarily follows an adjudication of guilt by plea or conviction, is not an acquittal, but merely has the same effect. Davidson, 2019-1180 at p. 7, 308 So.3d at 329. The Louisiana Supreme Court has held that an Article 893 dismissal following a probationary period, although declared to have the same effect as an acquittal, can still count as a conviction for certain purposes because there has been an adjudication of guilt. See Davidson v. State, 2020-00976, pp. 5-10 (La. 5/13/21), 320 So.3d 1021, 1025-28 (per curiam) (holding that Article 893 dismissal was a conviction that required defendant to register as sex offender, where sex offender registration statute defined "conviction" to include dismissal after a period of probation); Porterfield, 550 So.2d at 585-588 (holding that Article 893 dismissal is a conviction for purposes of lawyer disciplinary proceedings, which are concerned only with the fact that an adjudication of guilt has occurred and not with any later actions that the courts may take). Thus, it is clear that a distinction has been recognized between an acquittal and an Article 893 dismissal following a probationary period. Davidson, 2020-00976 at p. 6, 320 So.3d at 1025.
Having concluded that an Article 893 dismissal is not the same as an acquittal because it entails an adjudication of guilt and, initially, a conviction, we must now determine whether such a conviction may serve as the predicate offense for a felon in possession of a firearm charge under La. R.S. 14:95.1. The defendant herein invokes the rule of lenity to argue that any doubt as to whether an Article 893 dismissal can serve as a predicate offense for a felon in possession of a firearm charge should be resolved in his favor. The principle of lenity directs that a court construe a criminal statute in favor of the most narrow application when there are serious doubts concerning the meaning of a term. State v. Turner, 20180780, p. 3 (La. 5/8/19), 283 So.3d 997, 999 (per curiam). The general rule that ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity applies when the court is uncertain about the statute's meaning and is not to be used in complete disregard of the purpose of the legislature. Id. at p. 4, 283 So.3d at 999. A court should not blindly incant the rule of lenity to destroy the spirit and force of the law which the legislature intended to and did enact. Id. at p. 4, 283 So.3d at 999-1000.
Louisiana Revised Statutes 14:95.1(A) prohibits the possession of a firearm by "any person who has been convicted of, or has been found not guilty by reason of insanity for," certain enumerated felonies. The legislature did not specify whether a conviction that has been set aside pursuant to La. C.Cr.P. art. 893(E)(2) is a conviction for purposes of the prohibition in La. R.S. 14:95.1. However, in La. R.S. 14:95.10, a similar statute prohibiting "any person who has been convicted of' domestic abuse battery and certain offenses of battery of a dating partner from possessing a firearm, the legislature included a provision specifying the circumstances under which a person is considered to have been "convicted of' the offenses for purposes of the prohibition, explicitly excluding convictions that have been set aside:
C. A person shall not be considered to have been convicted of domestic abuse battery or battery of a dating partner for purposes of this Section unless the person was represented by counsel in the case, or knowingly and intelligently waived the right to counsel in the case; and in the case of a prosecution for an offense described in this Section for which a person was entitled to a jury trial in the jurisdiction in which the case was tried, either the case was tried by a jury, or the person knowingly and intelligently waived the right to have the case tried by a jury, by guilty plea or otherwise. A person shall not be considered convicted of [domestic abuse battery or battery of a dating partner] for the purposes of this Section if the conviction has been expunged, set aside, or is an offense for which the person has been pardoned or had civil rights restored unless the
pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, possess, or receive firearms.
La. R.S. 14:95.10(C) (emphasis added). .
A review of the legislative history applicable to the enactment of La. R.S. 14:95.10 is helpful in understanding the legislature's intent regarding the interpretation of La. R.S. 14:95.1. House Bill No. 753 of the 2014 Regular Session, which enacted La. R.S. 14:95.10, was originally drafted to amend La. R.S. 14:95.1 in order to add domestic abuse battery to the list of enumerated offenses following conviction of which a person is prohibited from possessing a firearm. However, prior to passage, House Bill No. 753 was revised to remove the amendment to La. R.S. 14:95.1 and instead enact La. R.S. 14:95.10, which contains similar language to the prohibition contained in La. R.S. 14:95.1, but limits the circumstances in which a person is considered to have been "convicted of' the enumerated offenses for purposes of the prohibition. Considering that the legislature contemplated amending La. R.S. 14:95.1 at the time La. R.S. 14:95.10 was enacted, but chose to only limit the definition of "conviction" for the offenses set forth in La. R.S. 14:95.10, leads to the inescapable conclusion that the legislature did not intend to spare persons convicted of the enumerated felonies, whose convictions were later set aside pursuant to La. C.Cr.P. art. 893(E), from the prohibition in La. R.S. 14:95.1.
Based upon our de novo review of the record and applicable law, we find that the defendant's conviction of possession of a Schedule IV CDS under Article 893 may be used as a predicate offense for the charge of possession of a firearm by a convicted felon. See State v. Jones, 539 So.2d 866, 868 (La. App 4 Cir.), writ denied, 544 So.2d 396 (La. 1989). Accordingly, the bill of information in this case charged a violation of La. R.S. 14:95.1, and the trial court erred as a matter of law in granting the defendant's motion to quash count two of the bill of information.
Therefore, we reverse the trial court's ruling and remand to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
PENZATO, J., concurs.
I respectfully concur. I find the defendant's conviction for possession of a Schedule IV CDS under Article 893 may be used as a predicate offense for the charge of possession of a firearm by a convicted felon based upon the exception set forth in La. C.Cr.P. art. 893(E)(2).
Article 893(E)(1)(a) allows a trial court to defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony. When such a conviction is entered, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole. Article 893(E)(2) allows the trial court to set the conviction aside and dismiss the prosecution. At the relevant time, Article 893(E)(2) further provided that "(t]he dismissal of the prosecution shall have the same effect as acquittal, except that the conviction... shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses."
In order to give effect to all parts of the statute, I find a dismissal pursuant to Article 893(E)(2) has the same effect as an acquittal unless it meets the exception contained in the statute, i.e., it "shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses." (Emphasis added). Article 893 does not define "cumulation of offenses." Thus, the term must be given its generally prevailing meaning based on context and common usage. See La. C.C. art. 11. For purposes of statutory interpretation, dictionaries are a valuable source for determining the "common and approved usage of words." Dunn v. City of Kenner, 2015-1175 (La. 1/27/16), 187 So.3d 404, 411. Merriam-Webster defines "cumulate" as "to combine into one" and "to build up by addition of new material."Thus, a cumulation may generally be understood to mean a combination of things, whether similar or different. Merriam-Webster farther defines "first" as "preceding all others in time, order, or importance," such as earliest.
See "cumulate," Merriam-Webster Online Dictionary 2023, available at http://www.merriam-webster.com.
See "first," Merriam-Webster Online Dictionary 2023, available at littp://www.memam-webster.com.
Herein, a dismissal under Article 893 shall be considered a first offense for any law relating to the cumulation of offenses. Based on the accepted definitions of "cumulation" and "first," and the context in which they are being used, I find the earlier offense, possession of a Schedule IV CDS, may be cumulated with the remaining elements of La. R.S. 14:95.1 to charge the latter offense. Article 893(E)(2) contains no language limiting its application to sequential matters or enhanceable offenses. Moreover, there is no reason "first offense" should be given a different meaning under subsection (E)(2) than that used in subsection (E)(1).
This interpretation of Article 893(E)(2) is consistent with State v. Jones, 539 So.2d 866 (La. App 4th Cir.), writ denied, 544 So.2d 396 (La. 1989), the only other Louisiana case to directly address the issue. In Jones, the defendant was convicted of violating La. R.S. 14:95.1. The predicate conviction used for his conviction was set aside pursuant to La. C.Cr.P. art. 893 after his probation was concluded. Jones, 539 So.2d at 868. On appeal, the defendant argued his conviction could not be used as a predicate for La. R.S. 14:95.1 since it was set aside. The Louisiana Fourth Circuit Court of Appeal rejected this argument, concluding that while the Article 893 procedure provides the same effect as an acquittal, "in other respects it shall still be considered a first offense for purposes of any law relating to cumulation of offenses." Jones, 539 So.2d at 868.
Accordingly, for this reason, I find the trial court erred in granting the defendant's motion to quash.
GREENE, J., dissenting.
I respectfully dissent. At the time of defendant's 893 dismissal in 2016 and the filing of the bill of information in 2019, La. Code Crim. P. art. 893(E)(2) provided that the dismissal "shall be considered as a first offense for purposes of any other law or laws relating to cumulation of offenses." (Emphasis added.) Article 893 does not define "cumulation of offenses." Thus, the term must be given its generally prevailing meaning based on context and common usage. See La. Civ. Code art. 11; La. R.S. 1:3. For purposes of statutory interpretation, dictionaries are a valuable source for determining the "common and approved usage of words." Dunn v. City of Kenner, 2015-1175 (La. 1/27/16), 187 So.3d 404, 411. While Merriam-Webster defines "cumulate" as to "combine into one" or to "build up by addition of new material[,]" the definition for "cumulative offense" is "an offense committed by repeating a similar act at different times."
See "cumulate/' Merriam-Webster Online Dictionary 2023, available at https://www.merriam-webster.com.
See "cumulative offense," USLegal Online Dictionary 2023, available at https://definitions.uslegal.com.
Based on the prevailing meaning of the term from the above definitions and the context in which it is used, a "cumulation of offenses" logically refers to a combination of similar offenses which have been repeated at different times, such as offenses which may be enhanced upon subsequent violations.
However, I disagree with the majority's conclusion that the cumulation of offenses envisioned in Article 893 can refer simply to the combination of a predicate felony with any additional element, such as under La. R.S. 14:95.1. The Article specifically uses the phrase "cumulation of offenses[,J' implying that the two acts being combined both constitute a distinct offense. Combining a predicate offense with an additional element, rather than another offense, is in conflict with the plain language of the statute. Under La. R.S. 14:95.1, it is only unlawful to possess a firearm //the person has a previous conviction of an enumerated felony. Without an applicable felony conviction, possession of a firearm is not inherently unlawful. Thus, I cannot say that "cumulation of offenses" means the cumulation of a predicate felony with an additional element which is not inherently unlawful.
Thus, I would find that defendant's conviction of possession of a Schedule IV CDS and subsequent dismissal under Article 893 may not be used as a predicate offense for the charge of possession of a firearm by a convicted felon as the conviction does not constitute a first offense for purposes of cumulation of offenses, as contemplated by the statute. Therefore, I would find that the trial court did not err as a matter of law in quashing count two of the bill of information.