Opinion
NO. 2013 KJ 0609
2013-09-20
STATE OF LOUISIANA IN THE INTEREST OF A.F.
HON. HILLAR C. MOORE III DISTRICT ATTORNEY APRIL N. WILLIAMS JACLYN C. CHAPMAN ASSISTANT DISTRICT ATTORNEYS BATON ROUGE, LA ATTORNEYS FOR STATE OF LOUISIANA A. HAYS TOWN III BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLEE A.F.
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Juvenile Court
in and for the Parish of East Baton Rouge, Louisiana
Docket No. JU103433
Honorable Pamela Taylor Johnson, Judge
HON. HILLAR C. MOORE III
DISTRICT ATTORNEY
APRIL N. WILLIAMS
JACLYN C. CHAPMAN
ASSISTANT DISTRICT ATTORNEYS
BATON ROUGE, LA
ATTORNEYS FOR
STATE OF LOUISIANA
A. HAYS TOWN III
BATON ROUGE, LA
ATTORNEY FOR
DEFENDANT-APPELLEE
A.F.
BEFORE: PETTIGREW, MCDONALD, AND McCLENDON, JJ.
PETTIGREW, J.
A sixteen-year-old, identified herein as A.F., was alleged to be delinquent according to a petition filed by the State on Movember 21, 2012, pursuant to the Louisiana Children's Code. The petition was based upon the alleged commission of simple escape, a violation of La. R.S. 14:110(A). At an adjudication hearing on December 18, 2012, the juvenile court adjudicated A.F. a delinquent as alleged in the petition. On January 16, 2013, the juvenile court granted A.F.'s motion to vacate the adjudication. At a status conference on January 30, 2013, an adjudication hearing was set for April 11, 2013. On February 1, 2013, the State filed a writ application with this court seeking review of the juvenile court's ruling vacating the adjudication for simple escape. On February 19, 2013, while the State's writ application was pending in this court, A.F.'s attorney filed a motion to dismiss the petition. The juvenile court dismissed the petition on February 28, 2013. On March 11, 2013, in an unpublished action, this court denied the State's writ application. State in the Interest of A.F., 2013-0185 (La. App. 1 Cir. 3/11/13). The State now appeals the dismissal of the petition for adjudication for simple escape. In said appeal the State again argues the juvenile court judge erred, on January 16, 2013, in granting A.F.'s motion to vacate the adjudication. This is the same issue addressed in State in the interest of A.F., 2013-0185 (La. App. 1 Cir. 3/11/13), wherein this court denied the State's writ. After a thorough review of the record and the errors assigned, we affirm the juvenile court's judgment of February 28, 2013, dismissing the petition filed by the State against A.F.
STATEMENT OF FACTS
On June 30, 2011, when A.F. was thirteen years old, he was placed in the custody of his mother after being released and placed on parole on unrelated offenses. Roy A. McBride, Probation and Parole Officer for the Office of Juvenile Justice (DOC-OJJ), was A.F.'s parole officer. McBride had regular contact with A.F. and was contacted by A.F.'s mother at the time of their initial change of address in 2011. When A.F. and his mother had a second change of address, McBride was not contacted. In November 2011, McBride filed a verified complaint against A.F. for failure to cooperate with school and supervision. Throughout most of 2012, McBride was unaware of A.F.'s whereabouts and had no contact with him, resulting in McBride filing another verified complaint against A.F., this time for lack of cooperation with probation and parole and curfew tracking. The instant simple escape allegation was filed in November 2012.
VACATION OF THE ADJUDICATION
We note that when this court denied the State's writ on the juvenile court's judgment of January 16, 2013, granting A.F.'s motion to vacate adjudication, this court did not specify reasons or provide a legal analysis. State in the Interest of A.F., 2013-0185 (La. App. 1 Cir. 3/11/13). For this reason and because the State has again raised the same issue (arguably inappropriately), we will first address the sufficiency of the evidence argument raised in the second assignment of error in conjunction with the vacating of the adjudication. The State contends that in granting A.F.'s motion to vacate the adjudication for simple escape, the juvenile court misinterpreted and/or misapplied the provisions of La. R.S. 14:110 and La. Ch. Code art. 887. As noted by the State, the juvenile court found that A.F. was not in the custody of the DOC-OJJ or in a work release program and, therefore, there was no intentional departure. The State argues that A.F. became a parolee under the control and lawful custody of DOC-OJJ after he was placed on parole on June 30, 2011, although he was no longer confined or in physical custody. On this basis, the State contends that A.F.'s failure to report to or otherwise contact his parole officer for a period of eleven months was an intentional departure from the lawful custody of the DOC-OJJ. Citing La. R.S. 15:574.7(A) and State v. Chinn, 2011-934, pp. 2-7 (La. App. 5 Cir. 3/27/12), 91 So.3d 420, 421-424, wherein the defendant's home incarceration was considered lawful custody, the State argues that, although A.F. was allowed to reside with his mother, he was on parole during the pertinent time period and was similarly in the legal custody of the DOC-OJJ.
Louisiana Revised Statutes 15:574.7(A) provides, as follows:
Each parolee shall remain in the legal custody of the Department of Public Safety and Corrections, corrections services, and shall be subject to the orders and supervision of the committee. At the direction of the committee, the chief probation and parole officer shall be responsible for the investigation and supervision of all parolees. The committee may modify or suspend such supervision upon a determination that a parolee who had conducted himself in accordance with the conditions of his parole no longer needs the guidance and supervision originally imposed.
In filing the motion to vacate the adjudication, A.F.'s attorney relied on La. Ch. Code art. 887, which provides, in pertinent part, as follows:
B. On motion of the child before disposition, an adjudication shall be vacated and a new adjudication hearing ordered if, after a contradictory hearing, the court finds that:
. . . .
(4) The adjudication judgment is contrary to the law and evidence.
C. If the court is of the opinion that the ends of justice would be served, it may vacate the adjudication prior to disposition, although the child may not be entitled to such relief as a matter of strict legal right.
In vacating the adjudication, the juvenile court specifically determined that in this case A.F. was not legally confined at the time the offense was alleged to have been committed since he was placed at home in his mother's care. The juvenile court further stated that the proper remedy for failure to report to the probation or parole officer is revocation and that there was no simple escape in this case. Thus, the juvenile court found that the adjudication was contrary to the law and evidence and, subsequently, vacated the petition on that basis. In seeking review of the juvenile court's determination that the adjudication is contrary to the law and evidence, the State is requesting a sufficiency review tantamount to an appeal filed by the State when a postverdict judgment of acquittal is granted pursuant to La. Code Crim. P. art. 821(D). A postverdict judgment of acquittal shall be granted only if the court finds that the evidence, viewed in the light most favorable to the State, does not reasonably permit a finding of guilty. La. Code Crim. P. art. 821(B).
See La. Ch. Cede art. 104(1).
The constitutional standard of review for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. See La. Ch. Code art. 883; La. Code Crim. P. art. 821; Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). However, in a juvenile delinquency proceeding, an appellate court is constitutionally mandated to review the law and facts. La. Const, art. V, § 10. See State in the Interest of L.C., 96-2511, p. 3 (La. App, 1 Cir. 6/20/97), 696 So.2d 668, 670. In accordance with La. R.S. 14:110(A)(1), in order to support a conviction for simple escape, the State must prove (1) an intentional departure (2) under circumstances wherein human life is not endangered (3) by a person imprisoned, committed, or detained (4) from a designated area of a place where such person is legally confined, or from the lawful custody of any law enforcement officer or officer of the Department of Public Safety and Corrections. The issues presented herein include whether there was proof of an intentional departure, and whether A.F. was in the custody of the Department of Public Safety and Corrections at the time of the alleged offense.
At the adjudication hearing, McBride specifically testified that on June 30, 2011, A.F. was released from AMI Acadiana and placed in his mother's custody. Likewise, A.F.'s mother testified that A.F. remained in her custody since he was released and placed on parole. As noted by the State, in State v. Chinn the court found the defendant therein was in custody for purposes of simple escape based on evidence that he was detained under home incarceration under the supervision of the Gretna Police Department and that he was subsequently arrested during a time in which he was supposed to be at his residence. State v. Chinn, 2011-934 at 5-7, 91 So.3d at 423424. However, in this case A.F. was not under home incarceration and, further, was not alleged to have absconded from his home. While the State argues that A.F. was in legal custody of the DOC-OJJ pursuant to La. R.S. 15:574.7(A), this article is inapplicable to a juvenile case pursuant to La. R.S. 15:574.13(B). Based on the instant circumstances, we find that A.F. was not in custody for purposes of simple escape. In addition, there was no intentional departure in this case. Thus, the State failed to prove the elements of simple escape, and the juvenile court did not err in vacating the adjudication. We find no merit in the second assignment of error.
THE DISMISSAL OF THE PETITION
The State contends that in granting A.F.'s motion to dismiss the petition on evidentiary grounds, the juvenile court failed to apply or misapplied La. Ch. Code art. 875. As noted by the State, the motion to dismiss argues that the State failed to timely commence the adjudication hearing pursuant to La. Ch. Code art. 877. The State contends that the time limitation is inapplicable since A.F. was in continued custody based upon the parole revocation and not the simple escape allegation. The State contends that the juvenile court did not address the argument raised in the motion to dismiss and, instead, rendered a decision that was not based on any of the grounds for dismissal set forth in La. Ch. Code art. 875.
Louisiana Children's Code article 877 provides as follows:
A. When the child is charged with a crime of violence as defined in R.S. 14:2(B) and the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within sixty days of the appearance to answer the petition. In ail other cases, if the child is continued in custody pursuant to Chapter 5 of this Title, the adjudication hearing shall commence within thirty days of the appearance to answer the petition.
B. If the child is not continued in custody, the adjudication hearing shall commence within ninety days of the appearance to answer the petition.
C. If the hearing has not been commenced timely, upon motion of the child, the court shail release a child continued in custody and shall dismiss the petition.
D. For good cause, the court may extend such period.
We note that in both the instant appeal and in its writ application, the State based its argument on La. Ch. Code article 887(B)(4), which provides, as follows: "On motion of the child before disposition, an adjudication shall be vacated and a new adjudication hearing ordered if, after a contradictory hearing, the court finds that ... [t]he adjudication judgment is contrary to the law and evidence." Under Article 887(B)(4), a new adjudication hearing shail be ordered if brought timely. See La. Ch. Code art. 877. However, neither the State nor A.F.'s attorney mentioned Paragraph A(2) of Article 887 in any of the arguments below. This section of Article 887 provides as follows:
A. On motion of the child prior to disposition, a delinquency adjudication shall be vacated and the child discharged if, after contradictory hearing, the court finds that:La. Ch. Code art. 887(A)(2) (Emphasis added.).
. . . .
(2) The delinquent act charged in the petition is not based upon an offense which is punishable under a valid statute.
In a juvenile delinquency proceeding, an appellate court is constitutionally mandated to review the law and facts. La. Const, art. V, §10. See State in the Interest of L.C, 96-2511 at 3, 696 So.2d at 670.
If the juvenile court finds that the facts of a case meet the criteria of Article 887(A)(2), the delinquency adjudication shall be vacated and the child discharged. A new petition or another adjudication hearing cannot be had, unlike under the provisions of Article 887(B). After analyzing the facts of this case, the argument of the parties, and the actual reasons given by the juvenile court judges for the judgments of January 16, 2013, which granted A.F.'s motion to vacate the adjudication, and February 28, 2013, which dismissed the petition for adjudication, respectively, we are of the opinion and conclude that, in truth and in fact, the juvenile court judges found that the delinquent act charged in the petition did not fail within the scope of La. R.S. 14:110(A) and therefore was not based upon an offense punishable under a valid statute. We find no manifest or legal error in these findings. Therefore, pursuant to Article 887(A)(2), A.F. should have been discharged, and the State was prohibited from setting a new adjudication hearing or filing a new petition for delinquency based upon the same facts. For these reasons, we affirm the February 28, 2013 judgment of the juvenile court, dismissing the State's petition against A.F.
Considering our analysis above and the provisions of Article 887(A)(2), we find the State's arguments regarding the timeliness issue pursuant to Article 887(A)(5) are now irrelevant to our ultimate decision to affirm the dismissal of the State's petition against A.F., and we pretermit discussion of same. See State v. Malone, 2008-2253, p. 2 (La. 12/1/09), 25 So.3d 113, 116.
DECREE
For the above and foregoing reasons, we affirm the juvenile court's decision of February 28, 2013f dismissing the State's petition against A.F.
AFFIRMED.
2013 KJ 0609
STATE OF LOUISIANA
IN THE INTEREST OF A.F.
McCLENDON, J., concurs and assigns reasons.
I agree with the majority's conclusion that the State failed to prove the elements of simple escape, but disagree that LSA-Ch.C. art. 887(A)(2) is applicable under these facts. Louisiana Children's Code article 887(A)(2) applies only when n[t]he delinquent act charged in the petition is not based upon an offense which is punishable under a valid statute." The State adequately plead that A.F. violated the simple escape statute, LSA-R.S. 14:110(A), and there has been no challenge to the validity of the statute. The State simply failed to prove the elements of simple escape, which is appropriately addressed under a sufficiency of the evidence analysis. Accordingly, the juvenile court did not err in vacating the adjudication.