State of Louisiana In The Interest of J. C.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KJ 2000 EOF LOUISIANA IN T INTEREST OF J STAi IE C Judgment Rendered i jL r 1 5 201l1 u APPEALED FROM THE CITY COURT OF SLIDELL IN AND FOR THE PARISH OF ST TAMMANY STATE OF LOUISIANA DOCKET NUMBER 2009 JC 3603 JUVEN DIVISION LE THE HONORABLE JAMES JIM LAMZ JUDGE Katherine M Franks Attorney for Appellant Abita C J Springs Louisiana Walter P Reed Attorneys for District State of Louisiana Attorney Covington Louisiana Kathryn Landry Special Appeals Counsel Baton Rouge Louisiana BEFORE PARRO KUHN AND McDONALD JJ McDONALD J C J a child was alleged to be delinquent by a petition filed on June 29 2009 pursuant to the Louisiana Children Code s The petition alleged that he committed seven counts of the felony delinquent act of simple burglary a grade violation of La R 14 and one count of the felony delinquent act of S 62 grade theft of a firearm a violation of La R 14 He pled true to the allegations S 67 15 and was adjudicated a delinquent child as alleged in the petition At the disposition hearing the juvenile court committed J to the custody of the Department of C Public Safety and Corrections Division of Youth Services Office of Juvenile Justice for six years with a recommendation for secure custody The court ordered the first three years to be served without the benefit of parole probation or suspension J appeals the adjudications and disposition C Finding some merit in the assigned errors we affirm the juvenile court s adjudications but modify the disposition and remand the case with instructions FACTS Slidell law enforcement officers responded to a complaint that four juveniles were shooting a gun in the woods behind Fritchie Park Upon contact an officer performed a weapons search ofJ during which he recovered a ring The officer C learned that the ring was stolen in a residential burglary and arrested all four juveniles J admitted to seven burglaries attd to shooting a gun in the woods C The police subsequently found hidden in the woods a gun identified as stolen during one of the burglaries FACTUAL BASIS TO SUPPORT THE PLEA In his first assignment of error J alleges that the juvenile court failed to C ascertain that a factual basis existed for each accusation He asserts that the record does not contain legaily sufficient evidence to support his plea of true to seven counts of simple burglary and argues that an apparent error in the petition wherein it alleges three of the burglaries occurred on the same date and at the same residence shows the pleas to be without sufficient factual basis La Ch art 856A C 3provides that after being advised of his rights a child may admit the ailegations of the petition The court shall further inquire to determine whether there is a factual basis for adjudication C J acknowledges that testimony from a prior evidentiary hearing may provide the factual basis to support a plea See State v Trahan 98 p 7 App 4th Cir 12 752 1442 La 99 1 2d So 921 926 rev on othergrounds 99 La 10 797 So 38 per d 3470 O1 5 2d curiam He contends however that no such pre proceedings exist in this plea case We disagree On June 25 2009 the juvenile court judge signed the affidavit finding probable cause to support J arrest s C That affidavit detailed how the officer came to arrest J and the fact that J gave a taped confession to seven C C residential burglaries Four days later the court held a hearing to determine whether probable cause existed to believe J had committed the delinquent acts C charged At that time J stipulated to probable cause J entered his plea of C C true on July 29 All of these events occurred before the same court We find that the record shows a sufficient factual basis to support J adjudication s C This assignment of error is without merit ILLEGAL DISPOSITION In his second assignment of error J contends that the juvenile court C imposed an illegal disposition on him when it ordered a portion to be served withouY benefit of parole or suspension J admits that his commitment was an C understandable decision considering his guardians abandon him to the ed system However he argues that the court made the choice of punishment i e secure care rather than education counseling and stability J contends that C the court restrictions against parole equate to locking him up with no future s 3 opportunities After a child has been adjudicated a delinquent the juvenile court may commit him to the custody of the Department in accordance with La Ch art C 901 C when the following conditions exist 1 There is an undue risk that during the period of a suspended commitment or probation the child will commit another crime 2 The child is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment 3 A lesser disposition will deprecate the seriousness of the child s delinquent act 4 The delinquent act involved the illegal carrying use or possession of a firearm When such a disposition is made Article 903C provides in part The order of commitment may require the department to take physical custody of a child adjudicated a delinquent committed to its custody pursuant to Article 897 for a felony delinquent act D grade ar Article 899 for a misdemeanor delinquent act and D grade recommended by the court or the department for assignment to a secure program or faciliry within fourteen days from the date of the s court signing of the judgment of disposition when the child is in or is going to be placed in the physical custody of a parish juvenile facil ity Thus the court has the authority to recommend secure placement Article 898 governs the duration of a disposition based on a felony grade adjudication A No 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 The court shall give a child credit for time spent in secure detention priar to the imposition of disposition B When modification and parole is not prohibited by Articie 897 1 if an order of commitment to custody of the Department of Public Safety and Corrections is subsequently modified and the child is placed on parole the maximum term of parole shall be the remainder of the sentence originally imposed Although this article provides maximum disposition limitations Article 898 does not authorize the juvenile court to piace limitations on a child parole eligibility at s 4 the time of the initial disposition Such limitarions are authorized and mandated only for the enumerated offenses set forth in Article 897 Furthermore once a 1 child has been committed to the custody of the Department the Department has sole authority over the placement care treatment or any other considerations deemed necessary La Ch art 908A C In this case the court ordered that the juvenile be placed in the care of the Office of Juvenile Justice for six years The first three years are to be without benefit of parole or probation Furthermore for the first three years the Court recommends secure care And the Court notes This is a recommendation If OJJ wants to place this young man in non they are free to do so as is secure consisYent with recommending their secure recommendation care for the reasons But the Court is stated Based on our interpretation of Article 898 in pari materia with Article 897 we 1 find the juvenile court legally erred in ordering the first three years of custody to be served without benefit of parole Accordingly we amend the custody order to delete this restriction EXCESSNE DISPOSITION C J also contends that the disposition imposed is excessive Article I Section 20 of the Louisiana Constitution prohibits cruel excessive or unusual punishment Where excessive commitment is complained of in juvenile proceedings the record must be reviewed to determine whether the court imposed the least restrictive disposition consistent with the circumstances of the case the s child needs and the best interest of society La Ch art 901B State in the C Interest of J 95 pp 3 La App lst Cir 2 669 So 584 586 W 1131 4 96 23 2d writ denied 96 La 4 672 So 911 The court must state for the 0689 96 26 2d record the factual basis and the considerations taken into account in imposing the disposition La Ch art 903A C 1 5 The penalty for simple burglary is imprisonment with or without hard labor for up to twelve years La R 14 The penalty for first theft of a S 62B offense firearm is imprisonment with or without hard labor for not less than two years nor more than ten years without benefit of probation parole or suspension of sentence La R 14 In a juvenile disposition the judgment may not S 67 1 15C remain in force for a period exceeding the maximum term of imprisonment for the felony forming the basis for the adjudication La C Ch art 898A The disposition in this case of six years does not exceed the maximum term of imprisonment for the felonies forming the basis for the adjudication of delinquency A predisposition report was prepared by the Office of Juvenile Justice which was introduced at the disposition hearing The report recommended that C J be placed in the custody of the Office of Juvenile Justice for a period not to exceed three years with a recommendation for placement in a non secure residential facility In stating the basis and considerations taken into account in imposing the disposition the court emphasized J prior delinquent history including the fact s C that JC continued to commit violations of the law while on probation The court found an undue risk that J would commit another offense that J is in need of C C corrective treatment and that a less restrictive disposition would deprecate the seriousness of the delinquent acts The court further noted that J is a danger to C himself and others and that his welfare and that of the community couid not adequately be safeguarded unless J was placed in the care of the Office of C Juvenile Justice The disposition imposed was not grossly disproportionate to the severity of Aithough the commitment order references six yeazs for each of two separate offenses constituting delinquent acts only one disposition was imposed as evidenced by the transcript and the commitment order 6 the offenses committed The court carefully considered the circumstances of the case the needs of the child and the best interest of society We do not find that the disposition imposed was excessive This assignment of error is without merit ERRORS APPARENT FROM THE RECORD In his next assignment of error J contends that the court erred in failing to C provide a disposition for each individual count for which 7 pled true and in C failing to indicate credit for time served on the commitment order C J also contends that the custody order fails to reflect that the judge recommendation of s secure care is merely a recommendation and not an order Our review of the record however shows that the custody arder does label the secure confinement notation as a recommendation C J contends that La GCr arts 871 and 879 demand a determinate P sentence for each count in an adult criminal proceeding Although no similar demands are found in the Children Code J nevertheless argues that the same s C requirement is mandated for juvenile proceedings pursuant to Article 104 which states that w procedures are not provided in this Code or otherwise by law here the court shall proceed in accordance with t he Code of Criminal Procedure in a delinquency proceeding and in a criminal trial ofan adult With respect to 7 s C argument the Third and Fifth circuits have so held See State in the Interest of J C 1272 S 2009 p 14 La App 3d Cir 2 28 So3d 1206 1215 writ 10 3 denied 2010 La 4 31 So3d 363 State in the Interest of J 94 0496 10 5 G 194 pp 10 La App 5th Cir 7 641 So 633 639 1 94 26 2d decline to follow them However we In so doing we note the unique nature of juvenile As the court noted the decision as to whether J is actually placed in secure confinement C rests completely with the Office of Juvenile Justice and is not reviewable in this appeal See La C Ch arts 903C and 908A Thus although J complains about his current security level we C do not address this issue 7 proceedings They are quasi nonjury ideally intimate informal criminal protective proceedings wherein the only factfinder is the juvenile court See State ex rel D 2001 pp 4 La 5 817 So 26 29 Because J 2149 6 02 14 2d 30 juvenile law is a hybrid of civil and criminal law the juvenile court operates differently from the criminal court sprocedure The primary aim of the juvenile court is to effectuate whatever action would be in the best interest of the child or children involved In furtherance of this objective the court is given greater leeway to accomplish its goals See State v Thomas 579 So 1086 1087 La App 4th Cir writ denied 586 So 535 2d 2d La 1991 Separate sentences must be imposed for each conviction in an adult criminal proceeding in order for those convictions to be appealable See La P Cr C art 912C 1State v Chapman 471 So 7 6 1985 per curiam A 2d La child however may be adjudicated a delinquent based upon the commission of one or more offenses Thus it is appropriate for the court to declare a single adjudication and a single disposition based upon the commission of one or more offenses The Children Code requires the court to impose the least restrictive s disposition authorized by Articles 809 through 900 consistent with the circumstances of the case the needs of the child and the best interest of society La Ch art C 901B To that end the court must exercise its discretion in determining the manner in which to adjudicate a child and the disposition appropriate See La Ch art 318 C Here the transcript and minutes reflect that the court ordered J into the C custody of the Office of 7uvenile 7ustice for six years The minutes also include the notation Sentence to run concurrent The custody arder reflects J was C adjudicated delinquent for seven counts of simple burglary and for theft of a firearm Although the custody order referenced the length of disposition as being s six years for each of the two offenses only one disposition was actually imposed The court did not err in ordering only one disposition We do however find merit in J contention that ihe court failed to give s C him credit for time spent in secure custody The transcript of the disposition hearing the minutes and the custody order all fail to reflect that J is entitled to C receive credit for time spent in secure detention prior to the imposition of disposition J asks that we order the juvenile court to amend the disposition to C reflect credit for time served Article 898A provides in pertinent part that t he court shall give a child credit for time spent in secure detention prior to the imposition of disposition Under the Code of Giminal Procedure the granting of credit for time served has long been self See La C art 880 State v Roberts 98 p operating P Cr 1706 12 La App lst Cir 5 739 So 821 829 Thus it is no longer 99 14 2d 30 necessary for an appellate court to amend a defendant sentence to reflect credit s for time served 898A However the self language is absent from Article operating Thus we amend the disposition to reflect credit for time served remand this matter to the juvenile court and order the court to give J credit for time C spent in secure detention priar to the imposition of disposition The court shall also amend the court minutes and custody order to reflect that credit We find some merit in this assignment of error INEFFECTIVE ASSISTANCE OF COUNSEL In addition to challenging counsel effectiveness in the original brief J s C raises two additional assignments of error in a supplemental brief in which he contends that counsel failed to challenge an unlawful search illegal arrest and subsequent involuntary statement failed to advise J regarding his plea of true C failed to object to the illegality of the dispositions and failed to ask for reconsideration of the dispositions 9 At Yhe outset we note that J did not at the time of entering his plea of C true expressly reserve any issues to appeal waiving all non defects jurisdictional occurring prior thereto and precluding review thereof either by appeal or by post conviction remedy State v Crosby 338 So 584 588 La 1976 2d Furthermore J bases his allegations of ineffective assistance of counsel C on the affidavit of the arresting officer provided to the court to establish probable cause for J arrest Without more the record is insufficient to establish that the s C initial search arrest ar taking of J confession occurred in violation of the law s C Further while we did find that the parole restriction was illegal the disposition was otherwise found s counsel decision in to be not excessive not asking Lastly we will not second guess for reconsideration of the disposition The investigation of strategy decisions requires an evidentiary hearing and therefore cannot possibly be reviewed on appeal This assignment of error is without merit CONCLUSION Having found some merit in the assignments of error the adjudication of delinquency is affirmed and the disposition is modified to delete the restriction that the first three years of custody be served without benetit of parole and to reflect that J receive credit far time served in secure detention prior to the imposition of C disposition Imposition of a new disposition is unnecessary We simply remand this matter to the juvenile court with instructions to amend the custody order and minutes to reflect these modiflcations The juvenile court shall forward a certified copy of these modifications to the Department ADJUDICATION OF DELINQUENCY AFFIRMED DISPOSITION MODIFIED CASE REMANDED WITH 1NSTRUCTIONS io
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