Opinion
NO. 2011-CA-1437
02-15-2012
STATE OF LOUISIANA IN THE INTEREST OF A.F.
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
JUVENILE COURT ORLEANS PARISH
NO. 2011-145-04-DQ-F, SECTION "F"
Honorable Mark Doherty, Judge
Judge Rosemary Ledet
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome, Judge Rosemary Ledet)
Leon A. Cannizzaro, Jr.
District Attorney
Felicity Strachan
Assistant District Attorney
COUNSEL FOR STATE OF LOUISIANA/APPELLEE
Katherine M. Franks
LOUISIANA APPELLATE PROJECT
COUNSEL FOR DEFENDANT/APPELLANT
This is a juvenile delinquency proceeding. The juvenile, A.F., who was adjudicated a delinquent on an armed robbery charge, a violation of La. R.S. 14:64, contends on appeal that the disposition imposed on him of four years in secure care was constitutionally excessive. For the reasons that follow, we affirm the disposition, but remand for clarification.
The juvenile is referred to by his initials, A.F., to preserve the confidentiality of the juvenile proceedings. See La. Ch.C. art. 412. For the same reason, the initials of the minor victim, S.L., are used; and the first name and initial of the last name of A.F.'s adult sister, Mandraneka F., are used.
FACTUAL AND PROCEDURAL BACKGROUND
On May 25, 2011, A.F., then fourteen years old (his date of birth is December 9, 1996), was charged with one count of armed robbery. In the delinquency petition, the State alleged that the incident occurred on the prior day when A.F. took "money belonging to S.L., from the victim's person or in his/her immediate control, by use of force or intimidation, while armed with a gun, a dangerous weapon." Juvenile Regional Services ("JRS") was appointed to represent A.F. Although A.F. initially denied the charge, he subsequently withdrew his former plea and pled guilty. On the Waiver of Constitutional Rights and Guilty Plea form that he signed, A.F. acknowledged that the juvenile court could sentence him on the charge to jail for up to seven years or until his twenty-first birthday, which is referred to as "juvenile life."
Because A.F. pled guilty there are no established facts in the record. Nonetheless, the record contains a copy of the police "gist," which details the armed robbery from the victim's perspective. The record also contains transcripts of the police interviews with A.F. and his sister, Mandraneka F., who then was nineteen years old (her date of birth is January 11, 1991).
A.F.; his sister, Mandraneka F.; and the victim, S.L., each gave a different version of the incident. All three agreed that A.F. produced the gun that was used in connection with the robbery. All three agreed that the victim was robbed of her money, albeit a small sum (ten dollars), at gun point. According to the police "gist," the victim's version of the incident was that Mandraneka F. was the primary instigator of the crime and that A.F.'s role consisted of producing the gun. According to the victim, A.F. handed the gun to Mandraneka F. Mandraneka F. then pointed the gun at the victim and took her money. After A.F. and Mandraneka F. walked away, the victim called her mother on her cell phone. A.F. and Mandraneka F. then returned to the scene, gave the victim her money back, and stated to the victim's mother, who the victim had on speaker phone, that "[t]hey were just playing."
In his interview, A.F. took full responsibility, stating: "I went up to her [the victim] and I pulled out a gun and I put it to her and asked her for the money. And she gave it to me but then she started crying so I gave it back go her because her momma was like we are going to call the police." He acknowledged that he had possession of the gun, a .38 revolver, that was used in the robbery. He denied that his sister approached or demanded money from the victim. He distanced his sister from him at the time of the robbery, stating that his sister was "on the corner" while he was "up by the buses."
A.F.'s sister, Mandraneka F., in her interview, acknowledged her involvement in the incident, but attributed all the blame to A.F. She stated that it was A.F. who had the gun, which she denied touching. She further testified that it was A.F. who took the victim's money and that she made him give the money back.
In September 2011, a disposition hearing was held at which two witnesses testified on A.F.'s behalf: Lee Curtis Green, the principal at A.F.'s school, L.B. Landry High School ("Landry"); and Keisha Reed, the JRS Advocate who prepared a disposition report.
Ms. Reed's name is spelled in the transcript as "Keisha" Reed, but it is spelled in the disposition report that she prepared as "Kecia" Reed.
The State did not present any witnesses.
Mr. Green testified that he is a "turn-around specialist"—a principal assigned to struggling schools to make the necessary changes. He explained that he acts as an instructional leader and a "cultural changer." He testified that he had been at A.F.'s school, Landry, for ten months and that he met A.F. when he first arrived there. He explained that A.F. was one of the students who the teachers identified as causing problems, which included "[d]isrupting class, not bringing his paperwork to class, not completing homework." Mr. Green noted that the simple act of buying a book bag for A.F. helped with the problems. He acknowledged, however, that A.F.'s disrupting behavior continued. Nonetheless, he indicated that A.F. had the potential to be redirected.
Describing his interaction with A.F., Mr. Green testified that he met him in the hallways, engaged in conversations with him, played basketball with him in the gym, saw him in the neighborhood (where Mr. Green also lived), and saw him at football games. Mr. Green noted that A.F. was a leader who helped a lot of other students "sometimes in the right way and sometimes in the wrong way." Mr. Green further noted that A.F. was "a leader that makes mistakes, and needs interventions." According to Mr. Green, A.F. had made "a bigger mistake outside of Landry."
Mr. Green testified that he had first-hand knowledge of neither A.F.'s prior arrests nor the armed robbery incident. He, however, was aware of the facts underlying the armed robbery incident. Mr. Green testified that he did not consider A.F. to be a threat or a bully; however, he stated that "if you run him the wrong way, he will protect himself." He further testified that A.F. was not a danger at Landry, "but he has to be redirected in a manner with interventions." Mr. Green testified that A.F. was not a student he would say could not return to school or expel. He explained that A.F. was never the kind to provoke a gang fight or anything that nature. Lastly, Mr. Green indicated that, if released, A.F. could come back to Landry.
Ms. Reed testified that she is a JRS Advocate and has a master's degree in social work. She prepared a disposition report for the juvenile court setting forth A.F.'s social history and background. In preparing the report, Ms. Reed worked with A.F.'s family for a few months conducting interviews, assessments, and a psycho-social history. A.F.'s family consists of his mother, two sisters, and an incarcerated father. Until his father was incarcerated, A.F. did not display behavioral issues, i.e., disciplinary issues in school. Following his father's incarceration, A.F. assumed the male role in the family.
A.F. is very close to his siblings, especially his oldest sister, Mandraneka F., who was involved in the armed robbery. Just as A.F. took on the role as the father figure in the home, his older sister took on the role as the mother figure as a result of their mother working outside the home. According to Ms. Reed, A.F. and his older sister formed an unusual relationship in which they would help each other, and "[h]e would even lie for his sister to protect her." When asked whether he would lie for his sister as to this incident, Ms. Reed replied: "I wouldn't know if he lied for his sister because I wasn't there to actually see the act."
As to A.F.'s prior arrests, Ms. Reed testified that she read about the arrests. She testified that she did not discuss the arrests with A.F. because he did not raise the issue, and she did not see the need to raise it. As to the armed robbery incident, Ms. Reed testified that she only vaguely asked A.F. about the incident. Moreover, she testified that she only asked him about his sister's role in the incident, not his own role. A.F. divulged to her that "he was remorseful about even being in that predicament."
Ms. Reed acknowledged that armed robbery, in general, is a serious crime, but she declined to answer the question of whether she believed individuals who commit armed robberies should be incarcerated. As to the armed robbery incident in question, Ms. Reed acknowledged that A.F. should be given consequences for his actions, but she did not believe he should be given long term consequences. Rather, based on her review of the social history, Ms. Reed opined that long-term incarceration was not the right disposition for A.F; she explained:
[A.F.] has admitted to his mistakes. He's always showed a leadership role within the school. I think that he was just in the wrong—he's a product of his community. Like each and every teenager that's in the community, they want to feel as though they belong. He's with his family members. He's a part of a family unit in which they move as one. So, I think he was just in a bad place at that time, and made a wrong decision.She further explained that "he's regretted the action that he's taken. He's admitted to me that he shows remorse for any wrong doings that he's done. And he's willing to accept help and guidance, anything that would help him to become a productive citizen." Continuing, she testified that A.F. wanted a tutor to help him in school and that he "admitted that he wanted help with substance abuse treatment." When questioned by the juvenile court regarding the substance abuse, Ms. Reed testified that A.F. acknowledged that he smoked marijuana.
Following the hearing, the juvenile court imposed a disposition of four years in the Department of Public Safety and Corrections ("DPSC"). In imposing the disposition, the juvenile court stated:
Under the Children's Code, the potential sentence . . . is that he could be sentenced to jail until his 21st birthday, which is locally called Juvenile Life. Based on the information that you presented today, I will not sentence him to his 21st birthday. I will sentence him to four years in the custody of the Department of Corrections. I will give him credit for time served.A.F. filed a motion to reconsider sentence, which the juvenile court denied. This appeal followed.
DISCUSSION
On appeal in juvenile delinquency cases, this court's review extends to both the law and the facts. State ex rel. C.J., 10-1350, p. 4 (La. App. 4 Cir. 2/9/11), 60 So.3d 46, 49 (citing State in Interest of Baptiste, 367 So.2d 784, 788 (La. 1979)). In this case, A.F. raises two issues on appeal: (1) whether an excessive disposition was imposed, and (2) whether the juvenile court was mistaken as to the mandatory sentencing conditions under La. Ch.C. art. 897.1 B. We separately address each issue.
Excessive disposition
A juvenile has the same constitutional rights against excessive punishment as an adult. State in Interest of D.L.S., 30,322, p. 11 (La. App. 2 Cir. 1/21/98), 706 So.2d 187, 193; State in Interest of TLR, 513 So.2d 554, 555 (La. App. 2d Cir. 1987); La. Ch.C. art. 808. Article 1, Section 20 of the Louisiana Constitution of 1974 provides that "[n]o law shall subject any person . . . to cruel, excessive, or unusual punishment." Although within the statutory limits, a sentence is constitutionally excessive if it is "grossly out of proportion to the severity of the crime" or is "nothing more than the purposeless and needless imposition of pain and suffering." State v. Caston, 477 So.2d 868, 871 (La. App. 4th Cir. 1985)(quoting State v. Brogdon, 457 So.2d 616, 625 (La.1984)). In addressing a constitutional excessiveness claim, the relevant issue is "not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion." State v. Smith, 01-2574, p. 7 (La. 1/14/03), 839 So.2d 1, 4.
La. Ch.C. art. 808 provides that "[a]ll rights guaranteed to criminal defendants by the Constitution of the United States or the Constitution of Louisiana, except the right to jury trial, shall be applicable in juvenile court proceedings brought under this Title."
In juvenile cases, the sentence is referred to as a judgment of disposition. See La. Ch.C. art. 684(A). When a juvenile complains on appeal of an excessive disposition, the record must be reviewed in order to determine whether the juvenile court imposed the least restrictive disposition consistent with the circumstances of the case, the child's needs, and the best interest of society. State ex rel. D.M., 02- 2528, pp. 9-10 (La. App. 4 Cir. 7/2/03), 851 So.2d 1216, 1222; La. Ch.C. art. 901 B. The general disposition guidelines the juvenile court must consider are enumerated in La. Ch.C. art. 901 A through D. However, "[t]he general disposition guidelines set forth in Paragraphs A through D of this Article do not apply when a child has been adjudicated a delinquent for the violation of . . . R.S. 14:64, armed robbery in accordance with Article 897.1." La. Ch.C. art. 901 E; State in Interest of D.S., 11-416, p. 7 (La. App. 5 Cir. 12/28/11), _ So.3d _, _, 2011 WL 6821390. Such is the case here.
La. Ch.C. art. 901 B provides that "[t]he court should impose the least restrictive disposition authorized by Articles 897 through 900 of this Title which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society."
A.F., who was fourteen years old at the time of the offense, was found delinquent for the violation of armed robbery. The governing provision is thus La. Ch.C. art. 897.1 B, which provides:
After adjudication of a felony-grade delinquent act based upon a violation of R.S. 14:64, armed robbery, the court shall commit the child who is fourteen years of age or older at the time of the commission of the offense to the custody of the Department of Public Safety and Corrections to be confined in secure placement for the length of the term imposed by the court at the disposition hearing without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence.Construing Article 897.1 B, the Louisiana Supreme Court in State ex rel. A.M., 98-2752 (La. 7/2/99), 739 So.2d 188, held that juvenile courts are authorized to use discretion in determining the term of commitment to the DPSC of juveniles adjudicated guilty of armed robbery under La. Ch.C. art. 897.1 B.
The general rule is that a juvenile's commitment to the DPSC is "not punitive nor in anywise to be construed as a penal sentence, but as a step in the total treatment process toward rehabilitation of the juvenile." La. R.S. 15:906 A(2). However, an exception is recognized for juveniles committed to the LDSC pursuant to La. Ch.C. art. 897.1. Id. The Legislature has expressly recognized that in cases governed by La. Ch.C. art. 897.1, which involve very serious offenses, the protection of the public is the primary objective of the juvenile system. La. R.S. 15: 906 B.
La. R.S. 15: 906 B provides that "[i]n cases governed by Children's Code Article 897.1, it is hereby declared to be the public policy of this state that commitment of a juvenile to the custody of the Department of Public Safety and Corrections for confinement in secure placement without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence, is necessary and proper because for these very serious offenses the protection of society is the primary objective."
Although the Louisiana Supreme Court in State ex rel. A.M., supra, held that juvenile courts have discretion in determining the term of commitment under La. Ch.C. art. 897.1 B, the Supreme Court did not identify the factors the juvenile court was to consider in exercising that discretion. Nor does the Children's Code. When the Children's Code fails to provide for a particular situation, the court is instructed to "proceed in accordance with the Code of Criminal Procedure." La. Ch.C. art. 803. According to the Code of Criminal Procedure, a trial court in sentencing a defendant within statutory limits is required to consider the sentencing guidelines enumerated in La. C.Cr.P. art. 894.1, which overlap with the general disposition guidelines set forth in La. Ch.C. art. 901 A through D. Indeed, La. C.Cr.P. art. 894.1 is the source of the general disposition guidelines enumerated in Article 901 C and D. Official Comment to La. Ch.C. art. 901. Article 901 C lists the aggravating factors, which may warrant commitment to the DPSC; Article 901 D lists the mitigating factors.
In this case, the juvenile court had the discretion to commit A.F. for a term of secure care ranging from one day to seven years (i.e., his twenty-first birthday).The juvenile court imposed a mid-range commitment of four years in secure care. As noted, A.F.'s first assignment of error is that the disposition imposed was excessive.
See La. Ch.C. art. 898(A)(providing that "[n]o judgment of disposition shall remain in force for a period exceeding the maximum term of imprisonment for the felony forming the basis for the adjudication") and La. Ch.C. art. 898(C)(4)(providing that the maximums set forth in La. Ch.C. art. 898(A) and (B) do not apply if "[t]he child reaches age twenty-one."); La. R.S. 14:64(B)(providing that the maximum sentence for armed robbery is ninety-nine years). La. Ch.C. art. 897.1(A)(providing that the term of incarceration for a juvenile adjudicated delinquent of the felony-grade delinquent acts enumerated in is "until the child attains the age of twenty-one years.")
A.F.'s arguments regarding the excessiveness of the disposition track several of the mitigating factors set forth in Article 901 and in La. C.Cr.P. art. 894.1. A.F. emphasizes that he was acting under the influence of his older sister in committing the offense, that his sister was the primary instigator of the robbery, and that he followed her lead. He further emphasizes that accepted responsibility for the incident and that he was willing to take the blame for the offense in order to protect his sister from mandatory incarceration as an adult. He points out that his lack of appreciation of the seriousness nature of the criminal offense he had committed was indicated both by his action of giving the money back and by his remark to the victim's mother that "[t]hey were just playing." He also points out that he is a first offender. Although A.F. admits that he has previous arrests, he argues that he has no previous delinquency adjudication proceedings. Lastly, he points out that he has the potential for rehabilitation as established by the testimony of both his principal, Mr. Green, and the JRS Advocate, Ms. Reed. Although he concedes that some period of incarceration in secure care should be required because of the serious nature of the offense coupled with his possession of a gun, A.F. contends that the juvenile court's disposition ordering his incarceration for most of his remaining teenage years is a constitutionally excessive disposition.
The State counters that the disposition is not grossly disproportionate to the very serious crime of armed robbery and that A.F. has put forth no evidence to support his contention that the juvenile court abused its broad discretion.
In addressing the issue of whether the juvenile court rendered an excessive disposition, this court "looks to whether the lower court took cognizance of the general guidelines provided in La. Ch. Code art. 901, whether the record reflects an adequate factual basis for the commitment imposed, and whether in light of the circumstances of the case and the background of the juvenile, the disposition is constitutionally excessive." State ex rel. R.A., 11-0440, p. 5 (La. App. 4 Cir. 11/2/11), _ So.3d _, _, 2011 WL 5188425. "'Absent a showing of manifest abuse of the wide discretion in such cases, a disposition will not be set aside as constitutionally excessive.'" Id. (citing State in the Interest of D.M., 02-2528, p. 10 (La. App. 4 Cir. 7/2/03), 851 So.2d 1216, 1222 (quoting State in the Interest of T.L., 28,564 (La. App. 2 Cir. 5/8/96), 674 So.2d 1122, 1124)). For the reasons discussed below, we find no manifest abuse of discretion.
The record reflects that A.F.'s delinquent act involved possession of a firearm, which is an aggravating factor under La. Ch.C. art. 901C(4) and La. C.Cr.P. art. 894.1. If tried as an adult A.F. would have faced a maximum sentence of ninety-nine years for armed robbery under La. R.S. 14:64. Although A.F. had no previous delinquency adjudication proceedings, he was arrested on at least two prior occasions. According to Ms. Reed, A.F. acknowledged having a substance abuse problem—smoking marijuana. According to Mr. Green, A.F. had behavior problems at school. Considering the circumstances presented in this case, we cannot conclude that the juvenile court abused its wide discretion in imposing a disposition of four years in secure care.
Mistake as to mandatory sentencing conditions under La. Ch.C. art. 897.1 B
A.F.'s second assignment of error is that the juvenile court may have based the disposition on a misconception of the mandatory sentencing conditions. As A.F. points out, the juvenile court failed to specify that the four year secured care disposition under La. Ch.C. art. 897.1 was mandated to be without benefit of parole, probation, or suspension of sentence. See State ex rel. A.M., 739 So.2d at 190-91 (holding that "Article 897.1 [B] mandates that such commitments be made without benefit of parole, probation, or suspension of imposition or execution of sentence, modification, or furlough.")
A.F. points out that the juvenile court's possible misconception regarding the required sentencing conditions is reflected in the record in the following places:
The plea colloquy form fails to state that the potential disposition of secure care until age twenty-one would be without benefit of parole, probation, or modification.Due to the juvenile court's possible misconception, A.F. contends that the disposition should be set aside and the case remanded for resentencing or, at a minimum, clarification.
• At the time of disposition the juvenile court failed to inform A.F. that the four year commitment was without any chance of modification.
• The judgment of disposition fails to state that the disposition is without benefit of parole, probation, or modification.
• At both the disposition hearing and in the judgment of disposition the juvenile court set the case for a sentence review and ordered the juvenile to be present, alluding to the possibility of a change in the disposition.
• The disposition judgment states that "[t]he defendant is not to receive an early discharge without prior approval of the court."
The State acknowledges the need for a remand for clarification of the confusion created by the juvenile court setting the matter for a sentencing review given the sentence is not subject to modification. The State, however, opposes A.F.'s request that the disposition be vacated and the case remanded for re-sentencing. The State contends that the sole relief warranted is "a simple clarification." We agree.
This court in State ex rel. C.J., 10-1350 (La. App. 4 Cir. 2/9/11), 60 So.3d 46, addressed a similar contention. In that case, the juvenile court imposed the maximum sentence for armed robbery under La. Ch.C. art. 891.1 B of juvenile life (until age twenty-one), but the court failed to specify that the sentence was without benefit of parole, probation, or modification. During the disposition hearing, defense counsel requested the juvenile court to reconsider its disposition. Before seeking a reconsideration of the disposition, defense counsel informed the juvenile court that the juvenile was facing other sentences in another section of juvenile court and that the other section would continue to review whatever sentence the juvenile received in the matter. Although the juvenile court stated that it could not change its disposition, the court "mentioned that another juvenile court judge could change the disposition." State ex rel. C.J., 10-1350 at p. 8, 60 So.2d at 51.
Finding the juvenile court's statement that another section could modify the disposition created confusion and inconsistency in the record, this court vacated the disposition and remanded for either resentencing or clarification "to assure the juvenile court correctly understanding the restrictions placed upon a sentence of juvenile life." State ex rel. C.J., 10-1350 at p. 9, 60 So.2d at 51-52. In so doing, we reasoned that "the justification for imposing the sentence given by the juvenile court at the disposition hearing is confusing because the juvenile court alludes to the possibility of the sentence of C.J. being modified." Id., 10-1350 at pp. 8-9, 60 So.2d at 51.
The instant case is distinguishable from State ex rel. C.J , supra, in two respects. First, the juvenile court in this case made no express reference indicating that A.F.'s four year disposition could be modified. Second, this case does not involve a juvenile life sentence; rather, the juvenile court in this case made an express determination that the appropriate disposition was four years in secure care. (A juvenile life sentence would have been a seven year disposition.)
Under the circumstances of this case, the juvenile court's omission of the mandatory sentencing condition dictated by La. Ch.C. art. 897.1 B from the disposition was an apparent oversight. This omission does not dictate vacating the disposition and remanding for a new disposition hearing and resentencing; rather, as the State contends, this omission dictates a remand for clarification of the disposition. See State in Interest of D.S., 11-416, p. 8, ____ So.3d at ____ (remanding for correction of disposition to reflect mandatory sentencing condition dictated by La. Ch.C. art. 897.1). Accordingly, we remand for clarification.
Our review of the record also reviews an error patent. As in State in Interest of D.S., 11-416, p. 8, _ So.3d at _, the juvenile court in this case failed to advise A.F. of the two-year prescriptive period for seeking post-conviction relief as required by La. Cr.P. art. 930.8. Accordingly, we advise A.F., by this opinion, that no application for post-conviction relief, including an application which seeks an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C. Cr.P. arts. 914 and 922.
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DECREE
For the foregoing reasons, the disposition of the juvenile court is affirmed. The case is remanded to the juvenile court for clarification.