State of Louisiana In The Interest of C. C.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KJ 0370 STATE OF LOUISIANA IN THE INTEREST OF C On Appeal from the City Court of Slidell Parish of St Tammany Louisiana Docket No 2009 JC 4538 Juvenile Division Honorable ames Jim Lamz Judge Presiding Walter P Reed Attorneys for State of Louisiana District Attorney Covington LA and Kathryn Landry Special Appeals Counsel Baton Rouge lA Annette Roach Louisiana Appellate Attorney for Appellant Project C Lake Charles LA BEFORE PARRO KUHN AND McDONALD udgment rendered JUL 1 6 2010 PARRO J C a child was alleged to be delinquent by a petition filed on August 6 2009 pursuant to the Louisiana Children sCode The petition alleged that he committed two counts of the felony delinquent act of attempted first degree robbery violations of grade S R 27 LSA 14 and 64 The petition was later amended to delete one count and C 1 subsequently pled true to the remaining count as alleged in the amended petition C was adjudicated delinquent in accordance with his plea and the juvenile court ordered him committed to the custody of the Department of Public Safety and Corrections Department Division of Youth Services Office of Juvenile Justice until his 21st birthday with credit for time served with a recommendation for secure placement The court ordered the first three years to be served without benefit of parole probation or suspension of sentence C appeals designating the following assignments of error 1 The trial court erred in imposing an illegal disposition upon C 2 The disposition imposed in this case is not the least restrictive alternative available is nothing more than punishment and is thus constitutionally excessive Finding some merit in the assigned errors we affirm the adjudication of delinquency but modify the disposition and remand the case with instructions FACTS On the night of July 29 2009 C and two other young men conspired to rob two Hispanic males walking down the street C had a pellet gun that looked like a firearm which he pointed at the victims while demanding their money The victims who believed it was a firearm stated that they did not have any money and began screaming for help C and his cohorts then ran and hid the pellet gun which was later recovered by officers investigating the crime All three conspirators confessed ILLEGAL DISPOSITION In his first assignment of error C contends that the juvenile court imposed an illegal disposition when it ordered the first three years of custody with the Department to be served without benefit of parole 2 After adjudication of a felony delinquent act other than those described in grade Article 897 the juvenile court may adjudicate a child delinquent and commit the child 1 to the custody of the Department LSA art 897 In accordance with LSA C Ch D C Ch art 901 such commitment may be appropriate if any of the following exists C l 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 903 provides in part C 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 or D grade Article D 899 for a grade misdemeanor delinquent ad and recommended by the court or the department for assignment to a secure program or facility within fourteen days from the date of the court s 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 facility Thus the juvenile court has the authority to recommend a secure placement Article 898 in pertinent part governs the duration of a disposition based on a grade felony 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 prior to the imposition of disposition B When modification and parole is not prohibited by Article 897 if an 1 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 place limitations on a child parole eligibility at the time of s the initial disposition Such limitations are authorized and mandated only for the enumerated offenses set forth in Article 897 1 Furthermore once a child has been committed to the custody of the Department the Department has sole authority over 3 the placement care treatment or any other considerations deemed necessary LSA C Ch art 908 A In this case the court ordered that this juvenile be placed in the care of the Office of uvenile Justice until his 21st birthday with a recommendation of secure care The Court notes for the record that this is a recommendation and OJJ is free to give him non care if they desire to do so secure My recommendation is secure care regular The first three years are to be served without benefit of parole probation or suspension of sentence Based on our interpretation of Article 898 in pa materia with Article 897 we find the i 1 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 EXCESSIVE DISPOSITION C 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 juvenile court imposed the least restrictive disposition authorized which the court found to be consistent with the circumstances of the case the child needs and the best interest of society See LSA art 901 State in s C Ch B the Interest of 7 95 La App lst Cir 2 669 So 584 586 writ W 1131 96 23 2d denied 96 La 4 672 So 911 The court must state for the record the 0689 96 26 2d considerations taken into account and the factual basis therefor in imposing the particular disposition chosen LSA art 903 C Ch 1 A The penalty for first degree robbery is imprisonment at hard labor for not less than three years and for not more than forty years without benefit of parole probation or suspension of imposition or execution of sentence LSA 14 The penalty S 1 R 64 B for an attempt shall not exceed one of the longest term of imprisonment prescribed half for the offense attempted LSA 14 Therefore the maximum sentence for SD R 27 3 4 an adult convicted of attempted first degree robbery is twenty years without beneFlt of parole probation or suspension of sentence In a juvenile disposition the judgment may not remain in force for a period exceeding the maximum term of imprisonment for the felony forming the basis for the adjudication C Ch LSA art 898 A maximum A term does not apply if the child reaches age twenty LSA art 898 The one Ch C 5 C disposition in this case commitment to age twenty does not exceed the maximum one term of imprisonment for the felony forming the basis for the adjudication as C was just shy of his seventeenth birthday at the time of his disposition His maximum period of commitment therefore was just over four years A predisposition report was prepared by the Office of Juvenile Justice which was introduced at the disposition hearing The report recommended that C be placed in the Department scustody for two years with a recommendation of secure placement In stating the considerations taken into account and the factual basis therefor in imposing the disposition the court emphasized C prior delinquent history including multiple s counts of simple burglary one count of theft of goods and two counts of theft of a firearm The court indicated that it considered the disposition guidelines found in the s Children Code and found an undue risk that C would commit another offense that C was in need of correctional treatment and that a less restrictive disposition would deprecate the seriousness of the delinquent act The court further noted that the gun in s C possession looked like it was a real gun And if the victims had been armed somebody may have been seriously injured or killed Either you or the other guys that were with you or the victims I mean it could have been terrible The court explained to the juvenile Y need some help And I consider you dangerous at this point ou Very dangerous to yourself and very dangerous to other people in the community The disposition imposed was not grossly disproportionate to the severity of the offense The court carefully considered the circumstances of the case the needs of the child and the best interest of society The court imposed the disposition in accordance with the dispositional guidelines of the Children Code Accordingly for the reasons set s out above we affirm the juvenile court judgment adjudicating C delinquent and s 5 committing him to the custody of the Department until his 21st birthday This assignment of error is meritless CREDIT FOR TIME SERVED Although the court ordered and the minutes reflect that C receive credit for time spent in secure detention prior to the imposition of disposition the custody order does not reflect this credit C asks that we order the juvenile court to amend the custody order Louisiana Children Code Article 898 provides in pertinent part that t s A he court shall give a child credit for time spent in secure detention prior to the imposition of disposition Under the Code of Criminal Procedure the granting of credit for time served has long been self See LSA art 880 State v Roberts 98 operating P Cr C 1706 La App lst Cir 5 739 So 821 829 Thus it is no longer necessary 99 14 Zd 30 for an appellate court to amend an adult defendanYs sentence to reflect credit for time served However the self language is absent from Article 898 of the operating A sCode Thus we amend the disposition to reflect credit for time served Children CONCWSION 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 benefit of parole and to reflect that C receive credit for time served in secure detention prior to the imposition of 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 modifications The juvenile court shall forward a certified copy of these modifications to the Department AD7UDICATION OF DELINQUENCY AFFIRMED DISPOSITION MODIFIED REMANDED WITH INSTRUCTIONS 6
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