Opinion
NUMBER 2015 KJ 1945
04-15-2016
STATE OF LOUISIANA IN THE INTEREST OF T.J.
Hillar C. Moore, III, D.A. Otha Curtis Nelson, Jr., Asst. D.A. Cristopher J.M. Casler, Asst. D.A. Baton Rouge, LA Attorneys for Appellee State of Louisiana Katherine M. Franks Louisiana Appellate Project Abita Springs, LA Attorney for Appellant Defendant - T.J.
NOT DESIGNATED FOR PUBLICATION
Appealed from the The Juvenile Court In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 108072 Honorable Adam J. Haney, Judge Hillar C. Moore, III, D.A.
Otha Curtis Nelson, Jr., Asst. D.A.
Cristopher J.M. Casler, Asst. D.A.
Baton Rouge, LA Attorneys for Appellee
State of Louisiana Katherine M. Franks
Louisiana Appellate Project
Abita Springs, LA Attorney for Appellant
Defendant - T.J. BEFORE: WHIPPLE, C.J., WELCH, AND DRAKE, JJ. WELCH, J.
The juvenile, T.J., was charged by petition in juvenile court with armed robbery, a violation of La. R.S. 14:64. He denied the allegation and, following an adjudication hearing, was adjudicated a delinquent for the charged offense. The juvenile court imposed disposition of commitment to the Office of Juvenile Justice until T.J. attained the age of eighteen years. T.J. now appeals, designating two assignments of error. We affirm the adjudication. We vacate the disposition and remand for a new disposition hearing, with instructions.
FACTS
On June 22, 2015, sometime after 10:30 p.m., Justin Price was standing at the back of the Baton Rouge Community College (BRCC) parking lot. He was a student at BRCC and had gotten off of work about 10:30 p.m. According to Justin's testimony at the adjudication hearing, he was stressed from work and had gone to the parking lot to meditate and pray. At the other end of the parking lot, Justin saw three male youths on two bicycles. Two of these individuals approached Justin, while the third stayed back at a distance. One of the individuals asked Justin if he was alright, and Justin replied that he was just praying. One of the individuals then pulled out a gun and told Justin to get on the ground. Justin kneeled on the ground. The other individual standing near Justin (the one without the gun) told Justin to take out his wallet. Justin removed his wallet, cell phone and a watch from his pockets. Justin's three possessions were taken and the three individuals left. Justin went to a neighbor's apartment and called 911. The three suspects were apprehended within minutes, and Justin positively identified them via an in-field identification.
All three youths have the initials T.J. and were under seventeen years of age at the time of the offense. The adjudicated delinquent in the instant case (T.J.) is the younger brother of one of the youths in this case.
Justin was able to describe certain details about the two individuals nearest to him (who robbed him). He stated that the individual with the gun was wearing an "ROTC jacket." Justin indicated that the other individual standing close to him had on an ankle "bracelet." Justin clarified this and stated that the bracelet was black and that, "It's one of them things that's around your ankle for a detector."
Corporal Douglas Chutz, with the Baton Rouge Police Department, was the primary case officer who immediately responded to the dispatch regarding an armed robbery. At the adjudication hearing, Corporal Chutz indicated that one suspect was wearing a hoodie with a ROTC patch, and another suspect was wearing a dark camo hoodie, gray shorts and had an ankle monitor. Corporal Chutz also testified that the revolver used in the robbery was found in the area where the three suspects were first spotted just after the robbery. The gun was loaded with five hollow-point bullets.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, T.J. asserts he has discovered two patent errors in the transcript. Specifically, T.J. argues that at the disposition hearing, the juvenile court failed to award credit for time served and to advise T.J. of the delays to seek postconviction relief.
While an error patent review is appropriate in a juvenile delinquency proceeding pursuant to La. C.Cr.P. art. 920, see State in Interest of Wilkerson, 542 So.2d 577, 580-81 (La. App. 1st Cir. 1989), the issues before us have been raised as an assignment of error and are, therefore, not amenable to a patent error review. In any event, there is some merit to this assignment of error.
The disposition transcript does not indicate that the juvenile court gave T.J. credit for time spent in secure detention, if any, prior to the imposition of disposition, as required by La. Ch. Code art. 898(A). Accordingly, we order that at the new disposition hearing, the juvenile court inform T.J. that he is entitled to credit for time served. See State in Interest of C.V., 2013-1207 (La. App. 3rd Cir. 3/5/14), 134 So.3d 211, 215-16.
The judgment and minutes both indicate the juvenile court ordered that credit for time served shall be determined by the Department of Public Safety and Corrections.
The juvenile court also failed to inform T.J. of the two-year prescriptive period for filing postconviction relief as required by La. C.Cr.P. art. 930.8(C). Although the Children's Code contains no similar provision, Louisiana courts have held that this notice should be given. See State in Interest of J.F., 2003-0321 (La. App. 3rd Cir. 8/6/03), 851 So.2d 1282, 1287. Accordingly, we order that at the new disposition hearing, the juvenile court inform T.J. of the two-year prescriptive period for filing postconviction relief as required by La. C.Cr.P. art. 930.8(C). Further, the judgment of disposition and minute entry should reflect this notice regarding postconviction relief given to T.J. See State in Interest of C.V., 134 So.3d at 216.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, T.J. argues the disposition is excessive.
At the disposition hearing, the juvenile court found that commitment was necessary and ordered that T.J. be committed to the Office of Juvenile Justice until his eighteenth birthday. .
T.J. argues in brief that the disposition is excessive under the circumstances of the case. T.J. relies on La. Ch. Code art. 901(B) to argue that he is entitled to the least restrictive disposition which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society. According to T.J., commitment until his eighteenth birthday is not the least restrictive disposition and that to "warehouse" him in a secure care facility without the possibility of early release or transfer to a less secure facility does not serve the purpose of rehabilitation.
We find the disposition clearly complies with the guidelines of La. Ch. Code art. 901. The juvenile court provided reasons for the disposition and clearly considered the circumstances of the case, the needs of the child, and the best interest of society. As such, we find the juvenile court stated on the record an adequate factual basis for the disposition. Absent a showing of manifest abuse of discretion, we do not set aside a juvenile disposition or sentence as constitutionally excessive. See State in Interest of J.D.J., 27,673 (La. App. 2nd Cir. 9/27/95), 661 So.2d 519, 520.
We note as well T.J.'s history of delinquency. During the instant armed robbery, T.J. was already on supervised release and, in fact, was identified, in part, by the ankle monitor he had on. In March of 2014, prior to the instant offense, the State alleged T.J. committed one count of armed robbery and two counts of attempted armed robbery. The allegations were dismissed, but the State, in April of 2015, re-filed a petition, alleging the same charges. In May of 2015, T.J. admitted to the reduced allegations of simple assault and first degree robbery, and he was adjudicated a delinquent. The State indicated that it re-filed the petition because, following the dismissal of the allegations, the State learned that T.J. had been arrested for unauthorized entry of an inhabited dwelling and that there was a pending bench warrant hearing. See State in Interest of T.J., 2015-1302 (La. App. 1st Cir. 12/23/15), ___ So.3d ___, 2015 WL 9434584.
Based on the entire record before us, we do not find that what amounts to a three-year term of imprisonment is excessive, especially in light of the fact that T.J. could have been committed to the Department of Corrections until his twenty-first birthday. See La. Ch. Code. arts. 897.1(B) & 898(C)(5). Moreover, despite T.J.'s assertion regarding the general guidelines provided for juvenile cases in La. Ch. Code art. 901, and its "least restrictive disposition" language, the general disposition guidelines do not apply when a child has been adjudicated a delinquent for the violation of armed robbery. See La. Ch. Code. art. 901(E); State in Interest of D.L., 30,878 (La. App. 2nd Cir. 6/24/98), 715 So.2d 623, 627. Given the circumstances of the case, T.J.'s history, and the lack of positive response to past lenient treatment, the three-year disposition is not grossly out of proportion to the seriousness of T.J.'s conduct and, as such, we find no abuse of discretion in the juvenile court's imposition of disposition. See J.D.J., 661 So.2d at 520; State in Interest of K.H., 612 So.2d 1036, 1040 (La. App. 2nd Cir. 1993).
T.J.'s date of birth is November 20, 2000. The disposition hearing was on November 16, 2005, four days shy of T.J.'s fifteenth birthday. --------
This assignment of error is without merit.
DISPOSITION ERRORS
In his disposition, the juvenile court failed to require that T.J. be committed without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence, as mandated by La. Ch. Code art. 897.1(B). Accordingly, we remand to the juvenile court for correction of the illegally lenient disposition originally imposed. The juvenile court further failed to require that T.J. be "confined in secure placement," as mandated by Article 897.1(B).
CONCLUSION
For the foregoing reasons, the adjudication is affirmed. The disposition, however, is vacated, and this matter is remanded for a new disposition hearing, with the following instructions. The juvenile court shall inform T.J. that he is entitled to credit for time served. The juvenile court shall also inform T.J. of the two-year prescriptive period for filing postconviction relief as required by La. C.Cr.P. art. 930.8(C). Further, the judgment of disposition and minute entry should reflect this notice regarding postconviction relief given to T.J. Finally, the new disposition shall state that it is imposed without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence; and further that the disposition require that T.J. be "confined in secure placement," as mandated by La. Ch. Code art. 897.1(B).
ADJUDICATION AFFIRMED. DISPOSITION VACATED AND REMANDED FOR A NEW DISPOSITION HEARING, WITH INSTRUCTIONS.