State of Louisiana In The Interest of J. W., III
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 KJ 0656 STATE OF LOUISIANA IN THE INTEREST OF J W III On Appeal from the Juvenile Court Parish of East Baton Rouge Louisiana Docket No 94 192 Division Honorable Bob Hester Hillar C District Judge Pro A Tempore Presiding for Moore III Attorneys Attorney State of Louisiana Monisa L Thompson Assistant District Baton Rouge Attorney LA Attorney for Juvenile Joseph K Scott III Baton Rouge LA Appellant J W BEFORE PARRO III KUHN AND McDONALD JJ Judgment rendered September 14 2009 PARRO J J W III juvenile a was alleged to be a October 15 2008 pursuant to the Children on delinquent child by Code s act of juvenile committed the felony grade delinquent violation of LSA R S contained in the the Prior to petition his denial and entered December 9 2008 14 42 1 14 27 and a a plea of no contest to to be a the hearing the continuances disposition disposition hearing the disposition hearing a the allegations on court committed a accepted predisposition report and January 9 held was court On delinquent child with respect to the The court ordered a attempted forcible rape initially denied the allegations He attempted forcible rape offense for petition alleged that the Boykin examination the juvenile plea and adjudicated the juvenile matter petition filed adjudicatory hearing the juvenile withdrew an best interest following The a the Department of Public Safety and Corrections for on February 27 period of several At the 2009 custody of the to the juvenile a After 2009 set with credit two years for time served On appeal withdraw the the juvenile challenges the court s denial of his motion plea and his challenges the disposition affirm the we motion to continue the as excessive Finding no disposition hearing merit to these to He also assigned errors adjudication and the disposition FACTS Because the this as juvenile entered case were never recited fully developed by the prosecutor that into sic a trial present plea of no contest adjudicatory hearing the facts of The factual basis provided on this matter in the courtroom we would present testify She would on her whose at the in open court W ere the state to have had the victim best interest a September 15th in East Baton Rouge Parish on Daniels Street she was confronted by J W and two co defendants L R and OJ who attacked her physically attacked her all three of them forced a shed off the side of her paw paw and Umm the three of them house her grandmother s great grandmother s house groped her breasts They pulled up her shirt touched her breasts They pulled down her pants and touched her panties her vagina They did not touch under her panties They touched her stomach area She all the while was screaming don t no don t leave me 2 Umm at some point somebody pushing shoving kicking drove up distracting the boys and she was able to get away she opened the door and then eventually ran away Umm L R and alone JW ran in one direction DJ in another direction ran Umm present Officer Reef is present on two different cases In the courtroom he would testify that he actually your honor J W LR and not showed up shortly thereafter and caught realizing that they had just come from this particular incident and it was only later that he found out umm the boys were laughing umm the victim will tell you she just recently lost her grandmother she she was home alone and she was able to get back into the house She tried to get into the house but the lock wasn t working and she was so scared She ended up taking off the screen climbing through to get into the house umm and the boys were coming a window back but that s when I think the officer got there Umm again she had just recently lost her grandmother who had her great who had raised her She didn t say anything that night grandmother She went to school and tried to tell the school and they didn t pay any attention to her She s a special education student your honor uh and it was when she came home and the next day and told her school and her great aunt or her aunt and then an officer was called Officer Reef is and he did find blood of the incident There I talked to and talked to the school umm incidents of the crime uh you would hear today actual evidence on the door umm the victim very believable went back was and uh were of the one boys confessed to the that s the testimony that that the state to have a trial your honor MOTION TO WITHDRAW PLEA In his first in assignment of denying his motion error to withdraw his the plea contest in this case is not valid because it a means for the originally wanted juvenile to be to exercise his appointed counsel insisted that he further enticed him advised The released from failing to that entered on no contest no The juvenile states he allegations but his plea as court He claims his counsel by stating that he could be released from custody if he pled custody sex court erred the advice of counsel custody to a trial on the He further asserts his adequately investigate the were not was enter the juvenile Specifically he asserts the plea of released from right asserts the juvenile claims his sole motivation for entering the plea consequences of the to a serious juvenile no contest offense in plea and case in appointed counsel in 3 him to enter the no contest plea exchange for deferral of prosecution of dismissed ineffective in the to inform be of failing urging him was was to as two other counts At the hearing on the motion to withdraw the guilty plea counsel presented argument regarding the validity of the plea and ineffective assistance of counsel The claim of ineffective assistance of counsel is to be assessed part 674 test of Strickland 1984 See State v Washington 466 v Fuller 454 So 2d 119 this test the defendant must show that counsel that the deficiency prejudiced him be shown that counsel errors to the guaranteed so serious as to to showings s defendant n 9 performance he Pursuant to La 1984 was deficient and is deficient when it can performance serious that so prove deprive him of that counsel Strickland 466 U S at 687 there is s 125 a reasonable result of the a not was functioning was so s errors The defendant must make both ineffective as to probability that but for counsel must show that errors the probability is a unprofessional s A reasonable to undermine confidence in the outcome reversal require To carry his burden the defendant proceeding would have been different probability sufficient the as Counsel by the Sixth Amendment fair trial two 80 L Ed 2d performance will have prejudiced the defendant if he shows that the deficient were he made Counsel 104 S Ct 2052 s U 668 by the Strickland 466 s U at 694 Because a jury trial right due process and plea of guilty waives a criminal defendant to confront his accusers requires as a prerequisite in the record that the defendant privilege against self incrimination confront his accusers Alabama 395 and that he the validity that the plea be State v right was There must be informed to trial right La to withdraw a guilty plea at any time 4 to a a affirmative and the right to Boykin previously entered guilty gives the prior voluntary 1969 App 1st Cir 9 25 98 Louisiana Code of Criminal Procedure article 559 permit the withdrawal of right of the constitutional by jury s U 238 89 S Ct 1709 23 L Ed 2d 274 Barnes 97 2522 an a knowingly and intelligently waived them A defendant has no absolute plea to its fundamental privilege against self incrimination intelligent relinquishment of known rights showing v and his s to 721 So 2d 923 925 court the discretion to sentencing LSA C Cr P art However this discretion cannot be exercised 559 A of discretion 5 20 97 a defendant plea was informed of his general rule In this case State 1 Prior to v a 96 0786 La motion to withdraw a 99 1348 King 00 1824 juvenile entered allegations denial of a abuse appeal if the record clearly shows that the 793 writ denied the Calhoun v an rights and the consequences of his plea and that voluntarily 761 So 2d 791 rape As a 912 State appeal on not be reversed on entered was 5 17 00 forcible corrected 694 SO 2d 909 guilty plea will the be can arbitrarily and La 6 plea of 2901 App court the 5th Cir 794 So 2d 822 the attempted juvenile court was no contest to accepting the plea apprised of the factual basis for the plea The La explained the elements of attempted forcible rape and inquired whether the juvenile understood the offense The court also questioned the juvenile concerning his understanding of the plea and what it entails the During a thorough Boykin examination the court informed very juvenile of the triad of constitutionally guaranteed trial rights asked thorough questions to ascertain that the rights were fully understood juvenile of the consequences of pleading guilty response to questioning by the court ie and advised waiver of trial In rights juvenile stated that he understood his the rights and realized that he would be waiving the rights by pleading guilty juvenile further stated that he promises any or Following was our complete Thereafter was knowingly voluntarily and intelligently made by the constitutional A plea State 3144 v The court court of no we was than conclude the no contest Prior to contest is equivalent to an La App 1st 04 0633 plea court in this case extensively and thoroughly interrogated adequately advised the juvenile of his admission of Cir juvenile entering the plea the rights and the consequences of pleading guilty Gordon La 4 1 05 more factual basis a knowingly and voluntarily made finding that the juvenile while represented by counsel 1 the court found that review of the record abuse its discretion in err or The freely and voluntarily waiving the rights without plea and that the plea existed for the did not inducements was the 10 29 04 897 So 2d 600 5 guilt and is treated 896 So 2d 1053 Throughout the as a 1061 guilty plea See writ denied 04 juvenile indicated that he understood the rights and the examination He assured the court that the no contest waiving them by pleading guilty not induced juvenile was on Boykin we find that the was entered into the motion to withdraw counsel for the was We constitutionally sufficient support a claim that the juvenile in any way coerced abuse its discretion in was The ineffectiveness of his counsel This was Boykin transcript clearly shows failing juvenile acknowledged that the further find that the There is misled and there is juvenile are nothing no juvenile fully in the record to indication that his plea general and conclusory allegations of s The court did not unsupported by the record to allow the In fact at the knowingly and voluntarily appreciated the consequences of his actions was plea carefully informed of his rights and the consequences of his plea and that the plea hearing willingly by force from anyone Considering the foregoing that the was juvenile to withdraw the no contest plea assignment of error lacks merit DENIAL OF MOTION TO CONTINUE In this assignment of denying his motion for inclusion of juvenile a error to failed physical mental developmental environment emotional He further current in the ie in disposition hearing based upon the predisposition report predisposition report which psychological evaluation include and was relevant or information medical history religious activities handicaps substance abuse or criminal complains that the report fails Specifically the based upon family composition and dynamics community court erred in juvenile contends the juvenile continuance of the incomplete information asserts the participation the as an well incomplete regarding his as his home stability economic status and any mental physical history of any of to include information or its members regarding his physical description and developmental and medical history required by LSA Ch C art 890 The court has great discretion in deciding whether to grant continuance and this decision will not be disturbed 6 on appeal a motion for in the absence of an abuse of that discretion 749 694 1986 La The record in this 2008 The a on December 9 judgment of disposition contest no 2008 on motion for continuance is a State Strickland v 94 the was filed was adjudicated to be petition plea and Under LSA Ch C art 892 be conducted October 15 on prior juvenile court is required to hold disposition hearing may The hearing reflects that the case juvenile entered the delinquent child 488 So 2d justified depends motion for continuance is Generally the denial of case State 683 SO 2d 218 229 11 1 96 La a writ denied App 1st Cir 1983 La 1999 145 L Ed 2d 185 showing of specific prejudice not reversible absent a 0025 356 Whether denial of the circumstances of the 758 So 2d Castleberry 98 1388 La 4 13 99 v 528 U S 893 120 S Ct 220 444 So 2d 354 Spencer v denied 755 cert State to a entering disposition a immediately after the adjudication and shall be conducted within thirty days after the adjudication However for good 892 The court date when the matter juvenile juvenile s the cause originally set the came juvenile and disposition hearing hiring to At the Joseph Scott the juvenile the a private attorney disposition s on current counsel disposition hearing On February disposition hearing counsel On hearing and the hearing the motion recommendation in represent the as for represent the On January 23 counsel of record February 20 2009 motion to withdraw the a the plea motion to continue the February 20 2009 the previously scheduled disposition on to the a juvenile filed the juvenile s motion to withdraw the On this date the court heard February 27 2009 On for the enrolled was reset February 3 2009 counsel for the juvenile filed 2009 to January 23 2009 On 17 the request of the juvenile s mother public defender of the appointment reset the matter for On motion of Mr Scott On that before the court for the disposition hearing court relieved the office of the 2009 disposition hearing for January 9 2009 mother indicated she would be at the LSA Ch C art thirty day period may be extended continue counsel predisposition report 7 argument for the was on plea were set both of the motions juvenile argued based for upon an that the incomplete psychosexual evaluation denying the motion the court noted that the any further caused In by the juvenile and his mother The court concluded that not be necessary and could since the 2 additional possibly be detrimental given the juvenile s actions during his time out on bond The information included imposed conditions of his release numerous The court noted that unexcused absences and although he repeatedly disrespectful he showed to authorities at school refused to follow school rules and failed to appear at the was and he and his mother failed to conditions of his release he at school to show The none juvenile some was in continuously disruptive was expulsion from school recommended for expulsion hearing all The court further noted that the disciplinary referrals given the opportunity was improvement following his adjudication release delay of the disposition hearing would predisposition report reflects that since the adjudication the juvenile the accumulated class was disposition hearing the juvenile continued to violate the rules of his school and the court with disposition hearing incomplete nature of the evaluation The court further noted that adjudication before his an to continue the in violation of the conditions of his juvenile had violated his curfew condition comply with the custodial promise included Considering the foregoing the as court found that there was by the defendant s post adjudication behavior that the juvenile would commit another crime during a period of suspended commitment an undue risk probation as shown The court noted that juvenile from his family had failed adjudication custodial treatment in a all reasonable efforts to avoid allowing him to remain out The court concluded that the 2 sound discretion in The evaluation report bond juvenile removing the following his was in need of custodial environment Under the facts and circumstances of this court used on or reflects that case we find that the denying the defendant s motion during the juvenile s psychological juvenile to continue the evaluation at Assessment who is paying the bill apparently implying that there was an ongoing conspiracy to convict the juvenile and as such She stated that the office was being paid by the state represents the state demanded that testing be ceased immediately 8 Psychological The mother Services the mother became agitated and demanded to know Notwithstanding the incomplete disposition hearing evaluation which was voluntarily interrupted by the juvenile and his mother the court had before it all of the necessary information to Although he disposition was repeatedly showed absolutely and of the juvenile would the on respect for authority no aware no regard for rules not have affected the nor or As discretion is shown denial of that he was based was Therefore primarily the juvenile prejudiced by the when even an continuance will not be reversed absent a juvenile psychosexual examination previously mentioned Castleberry 758 So 2d specific prejudice the just imposed upon him conditions disposition which does the record indicate reasonable and a pending disposition As the court noted further denial of the motion to continue of of the impose juvenile s post adjudication behavior and activities has not shown psychosexual nature of the a court s abuse of showing at 756 EXCESSIVE DISPOSITION In this assignment of error the juvenile argues that in sentencing him Department of Public Safety and Corrections for excessive He disposition argues adjudication of delinquency is a that direct such result two years harsh a of the the court to the imposed an disposition for his first flawed and incomplete predisposition report After the adjudicating least restrictive Children case s Code a juvenile disposition delinquent authorized Louisiana Children s juvenile who has committed required court is to impose by Articles 897 through 900 of the and the best interest of Code article 897 D a society LSA Ch C art authorizes the court to commit a felony grade delinquent act to the custody of the Department of Public Safety and Corrections court is a which the court finds is consistent with the circumstances of the the needs of the child 901 B to be a Under LSA Ch C art 903 A the required to state for the record the factual basis and the considerations taken into account in As imposing the particular disposition chosen previously noted the juvenile court specifically indicated in its disposition that the two year disposition was 9 based primarily on the reasons juvenile s for post adjudication activities lasting effect it will Furthermore undoubtedly have supports the disposition imposed shown absolutely behavior no Even after felony grade offense effort or on the juvenile we find that the record correctly noted the juvenile has delinquent child for the commission of the while out on bond repeatedly violated the The court did not abuse its discretion in Department of Public Safety and Corrections for two years restrictive disposition that would fit the circumstances of the juvenile and the best interest of society and the change his disruptive and disrespectful desire to a nature of the offense the young victim As the court being adjudicated conditions of his release to the considering the This assignment of ADJUDICATION AND DISPOSITION AFFIRMED 10 committing J W This is the least case the needs of the error lacks merit
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