Opinion
No. 2013–CK–2483.
2014-06-13
STATE of Louisiana in the Interest of E.C.
PER CURIAM.
Writ granted. The defendant is a juvenile who was charged with two serious crimes by petition of delinquency: second degree murder of Wendy Byrnes, as a principal, and armed robbery of Dan Rousseve. The State filed a motion to transfer the case to Orleans Parish Criminal District Court due to the severity of the crimes. The State subsequently withdrew that motion and entered into a plea agreement with the defendant. The defendant pleaded nolo contendere to both charges on March 30, 2011, at which time the plea agreement took effect.
The relevant provisions of the plea agreement stated:
2. GED Efforts. The Juvenile further agrees to obtain a General Equivalency Diploma (“GED”) or, alternatively, make good faith efforts toward obtaining a GED by actively participating in GED coursework, if it is offered and available upon his confinement at the juvenile facility to which he is assigned and confined (the “Facility”). To the extent that the Facility does not offer a GED program or does not have GED coursework available, the Juvenile must make good faith efforts by actively participating in academic coursework, if it is offered and available at the Facility upon his confinement.
3. Vo–Tech Efforts. The Juvenile further agrees to obtain a trade or skill through a trade/vocational program offered and available at the Facility upon his confinement or, alternatively, to make good faith efforts by actively participating in a trade/vocational program, if one is offered and available at the Facility upon his confinement.
4. Good Faith Defined. Good faith shall be established by reviewing Juvenile's attendance, participation, teacher evaluations, or other relevant measures of proficiency. It is recommended that upon his confinement at the Facility, the Juvenile be administered the Test for Adult Basic Education (“TABE”) to establish a baseline of the Juvenile's current level of academic proficiency.
5. The state acknowledges that the Juvenile has been evaluated by both psychiatrist and psychologist and it has been determined that he meets the criteria for Borderline Intellectual Functioning. Additionally, it was determined that he has learning disability, specifically, a Reading Disorder, and a Disorder of Written Expression. Therefore, the Juvenile is not being required to obtain a GED or High School Diploma or even complete a Vo–Tech Program, but to actively participate to the best of his ability in these programs.
On October 11, 2011, defendant filed a report of compliance and motion to set aside plea and dismissal of all charges. The state filed its response, alleging that defendant had not complied with paragraphs two and three of the plea agreement. After hearings on November 18, 2011, and December 6, 2011, the juvenile court ruled that six months was not a sufficient time period in which to determine defendant's level of compliance with the plea agreement “that has a life span of four years and where the spirit of the [a]greement is to prepare [defendant] for success upon his release, or attempt to do so,” and reset the matter for a hearing in May 2012.
On February 10, 2012, the court issued its judgment on the November and December 2011 sentence review, and ordered that (1) the juvenile facility provide defendant with a tutor for a minimum of three times per week for a minimum of one hour per day; (2) defendant be placed in the Culinary Arts Program upon the next opening in the program; and (3) defendant undergo additional psychological evaluations and academic testing.
On May 2, 2012, defendant filed a supplemental monitoring report of compliance and motion to withdraw the plea and dismiss all charges. On May 9, 2012, the state filed its response and objection to defendant's motion, again reasserting that defendant had not satisfied the educational requirements of the agreement. The court conducted additional hearings on May 10, 23, 25, 31, and July 19, 2012. On October 12, 2012, after considering the nearly 900 pages of testimony and voluminous exhibits, the juvenile court ruled that defendant had complied with the substantive portions of the plea agreement and granted the motion to set aside the adjudication. It released defendant and placed him under the supervision of an electronic monitoring device.
Various exhibits were filed under seal and reviewed as part of the record by the Fourth Circuit. On motion of the state, the sealed records were transferred to this Court for review in connection with the state's pending writ application.
In its written reasons, the court specifically cited several witnesses and exhibits to support its conclusion:
– Dr. Kristen Luscher's testimony that, due to his learning disabilities, defendant will never perform academically higher than a seventh grade level and likely would be unable to earn a GED. The juvenile court noted that defendant's most recent TABE scores were consistent with her conclusions and emphasized that it is “unlikely that he will achieve academic functioning above the seventh grade level.”
– Dr. Joy Terrell's testimony echoing the conclusions of Dr. Luscher. Dr. Terrell testified that defendant's ability to receive information is equivalent to that of an eleven-year-old and that his ability to express himself is equivalent to that of an eight-year-old.
– Evidence reflecting that the Culinary Arts Program is the only vocational program offered at the Bridge City Center and that there was never an opening in the program while defendant was detained there. Therefore, it determined that this condition of the plea agreement never became operative.
– Emphasizing that the plea agreement defines “good faith” in terms of “active participation,” the juvenile court calculated that defendant attended 84% of his tutoring sessions and that his absences were due to court attendance, several physical ailments, such as pink eye, and a disciplinary matter.
– Testimony by staff officials that, in general, defendant participated in class and was cooperative. The court explained that “[t]hough there were specific individual comments that were negative regarding [defendant's] attitude and participation, taken as a whole, the majority of the comments were positive.”
The Fourth Circuit affirmed the ruling of the juvenile court. State in the Interest of E.C., 12–1744 (La.App. 4 Cir. 9/18/13), unpub'd. It determined that the plea agreement was a valid contract and the record contained overwhelming factual support for the lower court's conclusion that defendant complied with the terms of the agreement. Rather than enumerating its own reasons for judgment, the appellate court merely quoted the lengthy reasons given by the juvenile court in its ruling. The state filed a writ application which we now consider.
DISCUSSION
As a general matter, in determining the validity of agreements not to prosecute or of plea agreements, the courts generally refer to rules of contract law, although a defendant's constitutional right to fairness may be broader than his or her rights under the law of contract. See State v. Louis, 94–0761 (La.11/30/94), 645 So.2d 1144, 1148–49 (court “refer [s] first to the law of contracts for application by analogy,” but founds its analysis on “considerations of constitutional fairness”) (citing Ricketts v. Adamson, 483 U.S. 1, 16, 107 S.Ct. 2680, 2689, 97 L.Ed.2d 1 (1987)); State v. Lewis, 539 So.2d 1199, 1204–05 (La.1989) (commercial contract law only a point of departure in construing a plea bargain agreement); State v. Nall, 379 So.2d 731, 734 (La.1980) (“[Because] the constitutional right of a person accused of a crime is greater than that defined by the law of contract ... constitutional decisions should not be made to turn in favor of the state ... simply because of the niceties of contract law.”). The party demanding specific performance of a contract has the burden of proving its existence. Louis, 645 So.2d at 1149.
In this case, there was a valid plea agreement. The State offered the benefit of the potential dismissal of the serious charges pending against defendant, and defendant agreed to the conditions placed upon him in the plea agreement. It is undisputed that the Bridge City facility offers only one vo-tech program, which is focused on culinary arts. Chef Ronald Sonnier, the instructor of the program, testified about its logistics and explained that there are two classes during the day, with a morning session for students with a GED and an afternoon session for students working towards that degree, those students classified as “Basic Skill One,” which applies to juveniles who have opted not to pursue a high school diploma, or students whose academic level meets a certain standard. He further testified that students usually apply and submit their application to Trenisha Stanislas, an instructor at the high school. The chef noted that he typically takes on, at most, six students in one cycle. At the time of the December 2011 hearing, Chef Sonnier stated that there were 26 students on the waiting list for the program, but that two spaces in the program had become available. Finally, he confirmed that a court could order a juvenile into the program and that bypasses any approval by facility administration. Defense counsel clarified that statement with Sonnier:
Q. So, there's six students per class, like you just said, and you said there are 26 students, currently, on the waiting list?
A: Right.
Q: And if, in fact, there's an opening and the [c]ourt orders it, he would be placed on that waiting list to be put into the class?
A: Right, absolutely. That's happened before.
Q: And if, in fact, he gets into the class, you said earlier that the two classes that are offered during the day, he would be part of that class?
A: Right, the afternoon.
Q: So, in order to be a part of the program, would he have to miss his academic instruction to be in that class in order to take part in the vocational training?
A. It depends on what his schedule is.
The juvenile court abused its discretion in holding that the defendant complied with the terms of his plea agreement where no good faith effort was made on the part of the defendant to obtain a vocational skill. The above testimony was given on December 6, 2011, which gave defendant eleven months to follow up and enforce the ruling of the trial court to be put into the culinary program but he failed to do so. While defendant contends that he had no realistic opportunity to participate in the program due to not meeting the general requirements to participate, this is obviated by the fact that the court can, and did, order defendant into the program. There is no indication that defendant had even placed his name on the waiting list for the Culinary Arts Program. The fact that defendant would have to wait to enter the program does not in any way support the contention that defendant had no realistic opportunity to participate and furthermore does not render the program unavailable to defendant. Based on the fact that openings were available in the program and at no point did defendant ever follow up and join the program, this is no showing that he has actively participated to the best of his ability in order to obtain a vocational skill. Further, to allow defendant to re-enter society at this point would frustrate the spirit of the plea agreement, which was to provide a means to deter defendant from a life of crime and to provide him with some life skills. Significant to this determination is the fact that defendant received the benefit of a reduced sentence and had the state elected to transfer him to criminal district court, he would have faced incarceration until his thirty-first birthday.
DECREE
For the above reasons, we reverse the judgments of the lower courts and order defendant be remanded to the Bridge City Center facility to comply with paragraph (3) of the plea agreement, specifically, that he be placed in the Culinary Arts Program upon the next opening in the program.
WRIT GRANTED; REVERSED AND RENDERED. JOHNSON, C.J., dissents and assigns reasons.
WEIMER, J., dissents and assigns reasons.
HUGHES, J., dissents for the reasons assigned by JOHNSON, C.J. and WEIMER, J.
JOHNSON, Chief Justice, Dissents and assigns reasons.
It is unconscionable to remand this defendant to secure confinement in a juvenile facility to participate in a culinary arts program, two years after his release, when the opportunity to participate was never available to him. In my view, the majority has erred in reversing the lower courts, since the factual findings made by the juvenile court are not only reasonable, but are also, as the Court of Appeal noted, overwhelmingly supported by the record in this case.
The facts of this case are critical to understanding the implications of this court's proposed action. In 2009, at the age of fourteen, the defendant was one of three individuals charged with second-degree murder and armed robbery. As the majority correctly points out, the State originally filed a motion to transfer the defendant's case to Orleans Parish Criminal District Court due to the severity of the crimes. However, for reasons we are not able to discern, the State withdrew the motion and, after lengthy negotiations, the State and the defense reached a plea agreement. Notably, the record contains no colloquy detailing the extent of the defendant's involvement in these crimes. The presiding juvenile court judge noted there was no evidence to suggest this particular defendant “possessed, discharged, or brandished a weapon, or that he made a demand or took any action towards the victims.” In re E.C., 2009–026–05 DQ–F, p. 1, Juvenile Court of New Orleans, Per Curiam of 10/12/12, Doherty, J.
In fact, according to the investigating detective, the two other defendants charged with these crimes, confessed to their participation. Defendant Reggie Douglas confessed to being the shooter, and defendant Drey Lewis confessed to being present with Reggie Douglas at the time of the crimes. Further, neither of these defendants implicated E.C. in these crimes. Witnesses also stated that two perpetrators were involved in the commission of the crimes, not three.
Transcript of Motion Hearing 3/9/10, State of Louisiana v. Reggie Douglas, Drey Lewis, 485–536, Orleans Criminal District Court, Willard, J.
On March 30, 2011, in exchange for a nolo contendere plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.E.2d 162 (1970), the State agreed not to file additional charges against the defendant. The State also agreed to dismiss the petition and expunge the arrest upon compliance with the plea agreement. The juvenile court subsequently ordered the defendant into custody until his twenty-first birthday, with credit for time served, for the two years he was already detained. The Office of Juvenile Justice placed the defendant in the Bridge City Correctional Center for Youth (hereinafter “BCCY”) in April of 2011.
On October 11, 2011, the defense filed a Report of Compliance and Motion to Set Aside the Plea. The State filed a response, alleging the defendant had not complied with paragraphs two (2) and three (3) of the plea agreement, referring specifically to provisions for the defendant to put forth a “good faith effort” to obtain a GED and a vocational skill. The juvenile court concluded that six months was not a sufficient amount of time to determine compliance with the plea agreement. Therefore, the Court reset the matter for further hearings on compliance in May of 2012.
During the second round of compliance hearings, the court heard testimony from eight witnesses regarding the progress of the defendant. Approximately 900 pages of testimony on the defendant's compliance with the terms of the plea agreement were accumulated. The juvenile court ultimately found the defendant had, in fact, made a good faith effort to comply. However, the vocational skills program was not available to the defendant during his confinement.
Notably, the majority does not find the defendant failed to comply with paragraph two (2) of the plea agreement, which required the defendant's “good faith efforts” to obtain a General Equivalency Diploma (GED). According to several witnesses, including teachers and counselors who worked closely with the defendant, he was focused on his coursework and put forth his best efforts to complete assignments, despite significant learning disabilities. The majority finds instead that the defendant did not comply with the terms of paragraph three (3) of the plea agreement, with respect to his efforts to obtain a vocational skill. Paragraph three (3) provides:
3. Vo–Tech Efforts. The Juvenile further agrees to obtain a trade or skill through a trade/vocations program offered and available at the Facility upon his confinement or, alternatively, to make good faith efforts by actively participating in a trade/vocational program, if one is offered and available at the facility upon his confinement. (Emphasis added.)
Initially, it is important to point out that the plain language in this section of the plea agreement clearly contains a clause which renders its requirements entirely conditioned upon whether or not a vocational program was actually offered and available to the defendant during his confinement. Based upon a thorough review of the testimony given below, the juvenile court correctly found, as a fact, the vocational skills program was not available to the defendant, therefore rendering paragraph three (3) of the plea agreement inoperable.
The only vocational skills program offered at Bridge City Center for Youth (BCCY) while the defendant was in custody was a culinary arts program headed by Chef Ronald Sonnier. Only six students are admitted to the program at a time and, at the time of the hearings in the case, there were twenty-six students on the waiting list for admission to the program. Because the defendant was working towards obtaining a General Equivalency Diploma (GED) rather than a high school diploma, he would be required to enter the “Basic Skill One” section of the culinary arts program. The “Basic Skill One” program was offered in the afternoon during a time that conflicted with the defendant's academic course schedule. Paragraph two (2) of the plea agreement provides that the defendant must make “good faith efforts” to obtain a GED. The culinary arts program schedule therefore conflicted with the defendant's efforts to obtain a GED through no fault of his own. It was not feasible for the defendant to simultaneously participate in his academic courses and the culinary arts program. Furthermore, Chef Sonnier testified that according to Ms. Trenisha Stanislas, a teacher at BCCY, the defendant did not even meet the minimum academic standards for admission into the culinary arts program, despite his academic progress at the time in question. Chef Sonnier was questioned regarding E.C.'s possibility of participation in the program:
By defense counsel:
Q. Do you have any knowledge of what [E.C.]'s current academic level is?
A. Well, his case manager had contacted me to see about getting him in, and I contacted the Guidance Counselor their [sic] at Bridge City, Ms. Stanislas, and she told me that, at the present time, his academic level was not up to par for him to be able to be put into Culinary Arts.
On cross:
Q. So, you were contacted by [E.C.]'s case manager regarding his eligibility for your program, correct?
A. Right, Ms. Ade.
Q. And so, you, then had to bounce it to the Guidance Counselor, Ms. Stanislas, to see if he was academically eligible?
A. Right, because she places the kids. Whenever I have an opening come up in Culinary Arts, she places the kids in there.
Q. And, according to Ms. Stanislas, he was not academically eligible for the program?
A. Right, at that time.
Q. Chef Sonnier, do you know, when, approximately, that was that the conversation was with Ms. Stanislas?
A. About 30 days ago, it's been recent.
...
By the Court:
I have one question for you. You stated that Ms. Stanislas is the one who actually places the kids in the program when you have a vacancy.
The Witness:
Right
...
By defense counsel:
Q. If, in fact, if the Court does order that [E.C.] is placed into your
A. That has been the norm before.
Q. And if, in fact, the Court
A. If the position is open
The Court
You mean if you have space in your program?
The Witness
Right. Because I only take six students in each class because of all the knives and tools and stuff they handle ...
This testimony undeniably demonstrates that the culinary arts program was not available to the defendant. Nonetheless, the majority concludes no “good faith effort” was made on the part of the defendantto obtain a vocational skill, and thus the juvenile court abused its discretion in finding that the defendant complied with the terms of the plea agreement. It is well established that the standard of review of an appellate court, in findings of fact, is a manifest error standard. An appellate court must find from the record that a reasonable factual basis does not exist for a trial court's findings, and the record must establish that finding is clearly wrong, or manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978). This juvenile court found, as a matter of fact, that the culinary arts program was not available to the defendant. In turn, the court of appeal found no error in this determination. Remarkably, a majority of this court has reached a different conclusion, apparently based on testimony that the twenty-six person waiting list could be circumvented by a Court Order, and that two spaces actually opened up in the program, but the defendant failed to take advantage of them. This conclusion is misinformed.
In fact, there was a Court Order handed down by the juvenile court, ordering that the defendant be placed in the culinary arts program, upon the “immediate next opening.” The majority cites the testimony of Chef Sonnier where he states it was his understanding that a Court Order would only have the effect of placing the defendant's name on the waiting list, not actually enroll him in the culinary arts program. Therefore, the only reasonable conclusion we can draw, in light of the lengthy waiting list, is that a space in the culinary arts program had not become available.
According to the record, the defendant applied for and was accepted to culinary arts programs at Liberty's Kitchen and Café Reconcile, pending his release from BCCY. We have no information regarding whether the defendant has attended either program since his release from secure custody in October of 2012. The court's order sends the defendant back into custody indefinitely, or at least until his twenty-first birthday. This action not only modifies the actual terms of the plea agreement, but also renders those terms, which provided for the possibility of an early release, meaningless.
The action of the majority undermines the very purpose of the plea agreement. Upon entering the plea, E.C. relinquished a fundamental constitutional right to a trial. State v. Louis, 94–0761, p. 7 (La.11/30/94), 645 So.2d 1144, 1149–50. Moreover, by entering a nolo contedere plea under Alford, supra, he maintained his innocence of the crimes with which he was charged.
For the foregoing reasons, I respectfully dissent. WEIMER, J., dissenting.
The majority essentially holds that the defendant received the benefit of a plea bargain, but without the defendant fulfilling his end of the bargain. Because I find the majority has given insufficient deference to the juvenile court's findings and has negated the early release provisions of the plea bargain, I respectfully dissent.
The enforcement of a plea bargain, the majority correctly acknowledges, requires a court to “refer first to the law of contracts,” but a “criminal defendant's constitutional right to fairness may be broader than his or her rights under contract laws.” State v. Louis, 94–0761 (La.11/30/94), 645 So.2d 1144, 1148–49. The majority overlooks, however, facets of this case that-as matters of fundamental fairness-compel the conclusion that the defendant must be released from any further remedial obligations as a condition of his plea agreement.
In the ordinary case, the state can demand specific performance of a plea agreement, and the state has the burden of proving the obligations the state seeks to have the defendant perform. Id. at 1149. In the ordinary case, an “obligation may be dependent upon an uncertain event.” Id. However, the lines that a court must draw, even in the ordinary case, in determining whether the defendant has complied with the plea agreement, must comport with constitutional standards. In drawing those lines, “commercial contract law can do no more than to serve as an analogy or point of departure, since ‘plea agreements are constitutional contracts.’ ” Id. at 1148, quoting Ricketts v. Adamson, 483 U.S. 1, 16, 107 S.Ct. 2680, 97 L.Ed.2d 1 (1987). Such are the general rules for enforcing plea agreements in the ordinary case, but this is not the ordinary case.
As part of the plea agreement, the defendant here did not plead guilty. Instead, the defendant pled nolo contendere to offenses for which he was arrested when he was 14 years old. The plea agreement called for the defendant to be incarcerated until his twenty-first birthday, but also allowed for the possibility of early release. Paragraph three of the plea agreement conditioned early release on the defendant's good faith efforts to participate in General Equivalency Diploma (“GED”) course-work and to “actively participat [e] in a trade/vocational program, if one is offered.” (Emphasis added.)
The term “ nolo contendere” essentially translates as “no contest.” See State v. Villarreal, 99–827, p. 4 (La.App. 5 Cir. 2/16/00), 759 So.2d 126, 129. The plea of nolo contendere is distinct from a guilty plea. SeeLa.C.Cr.P. art. 552 (describing plea of “ nolo contendere” as one of four distinct pleas).
Here, the defendant entered a nolo contendere plea to being a principal to the crimes. A principal may not be the person who “directly commit[s] the act constituting the offense.” La. R.S. 14:24. In addition to pleading nolo contendere, the defendant cast his plea as an Alford plea. A definition of “a ‘best interest’ or Alford plea, which derives from the United States Supreme Court case of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), is one in which the defendant [has] pled guilty while maintaining his innocence.” State v. Stevenson, 45,371, pp. 4–5 (La.App. 2 Cir. 6/23/10), 41 So.3d 1273, 1276.
After sentencing and the defendant's later motion for release from confinement, the juvenile court observed the defendant's involvement as a principal in the crimes was minimal: “There were no charges brought that the youth possessed, discharged, or brandished a weapon, or that he made a demand or took any action towards the victims.” ( In re E.C., 2009–026–05 DQ F, p. 1, Juvenile Court of New Orleans, Per Curiam of 10/12/12, Doherty, J.).
These conditions from the plea agreement are discussed by the majority, but other aspects of the plea agreement, while recounted by the majority, should not be overlooked when considering whether the defendant has satisfied the agreement. Specifically, the state recognized in the following provision of the plea agreement that the defendant had serious cognitive impairments at the time the plea agreement was prepared:
5. The state acknowledges that the Juvenile has been evaluated by both psychiatrist and psychologist and it has been determined that he meets the criteria for Borderline Intellectual Functioning. Additionally, it was determined that he has learning disability, specifically, a Reading Disorder, and a Disorder of Written Expression. Therefore, the Juvenile is not being required to obtain a GED or High School Diploma or even complete a Vo–Tech Program, but to actively participate to the best of his ability in these programs. [Emphasis added.]
The effect of the majority's order is that the cognitively-impaired defendant is required to “participate” in a cooking program, but because of the quoted language from the plea agreement, he cannot be required to “complete” that cooking program. Due process obviously requires the defendant be given a meaningful opportunity to participate in the vo-tech component of the plea agreement, if one is offered. In this matter, the vo-tech component was not adequately offered to this juvenile.
Previously, this court recognized it cannot modify the terms of the plea agreement, because “[o]nce there is an offer and acceptance, the agreement is subject to specific performance.” Louis, 94–0761 at 10, 645 So.2d at 1149, citingLa. C.C. art. 1986. Now, however, this court has gone well past modifying a plea agreement and has essentially re-written the defendant's plea agreement to include a condition that the juvenile participate in a program never offered to him.
The record before this court shows that the cooking program is the sole vo-tech program offered at the defendant's confinement facility. The juvenile court, in the course of considering what is now over 900 pages of testimony and exhibits (generated during seven hearings and one ruling, spanning a one-year period of time), found that “there was never an opening in the space-limited program while the youth has been at the facility.” In re E.C., 2009–026–05 DQ F, p. 5, Juvenile Court of New Orleans, Per Curiam of 10/12/12, Doherty, J. The majority of this court reaches a different conclusion, based solely on the program instructor's remark that it might be possible to circumvent a 26–person waiting list in the event there was a court order to do so. Although the majority of this court now supplies such an order, this action does not erase the fact that there never was an order to circumvent the waiting list when the defendant moved the juvenile court to have his early release conditions evaluated. Moreover, the majority recounts—but apparently overlooks—the program instructor's testimony that the cooking classes might conflict with the very same GED classes in which the majority accepts the defendant successfully participated.
The juvenile court gave this matter an impressive degree of consideration. After hearing testimony from experts in the cognitive sciences, who assessed the defendant's abilities, the juvenile court determined “it is improbable that the youth will be able to obtain his GED.” The majority of this court, on a cold record, holds this same juvenile to the standards of diligence of an adult inasmuch as the majority penalizes the defendant for not putting his name on a waiting list that already contained the names of 26 other juveniles. The majority of this court orders that the defendant be placed in the cooking program “upon the next opening.” State of Louisiana in the Interest of E.C., 13–2483, p. 6 (La.6/13/14), 141 So.3d 785, 2014 WL 2694191. Such an order only underscores the fact that the defendant should not be penalized for failing to place his name on the waiting list. After the defendant's counsel submitted a Report of Compliance, the juvenile court issued this order in the fall of 2011: “[t]he [juvenile] Court orderedthe Office of Juvenile Justice to enroll and admit the youth to that program at the immediate next opening in the program.” ( In re E.C. at p. 6.) Apparently, the judge presiding in the juvenile court could not effect the defendant's enrollment in the cooking program; it follows that the cognitively-impaired juvenile defendant should not be penalized for failing to undertake the vain and useless act of placing himself on the program's waiting list.
It should not be overlooked that the majority grants relief that the state never requested. Nowhere in the state's application has it sought an order placing the defendant into the detention center's cooking program. This court's order comes some two years after the taking of any evidence about the detention center, its programs, and the other offenders who may be eligible for the cooking program. Such an order may result in this juvenile hurdling others more worthy of a position in the program.
At the time of this writing, the defendant is over 19-and-a-half years old. Even absent early release, he must be released from confinement in approximately one-and-a-half years. Yet this court now purports to force the defendant into a cooking program (if the defendant can even be placed into the program before his twenty-first birthday), despite the prosecutor's recognition that the defendant may lack the cognitive ability to complete the cooking program. I suggest the juvenile court judge is much more versed in the programs offered by the juvenile justice system than is this court. Moreover, the majority's analysis grants no deference to the juvenile court's evaluation of the defendant's cognitive impairments and the lack of available positions in the cooking program. The majority's order frustrates any measure by which the defendant can gain the early release opportunities promised him in the plea agreement. Although it would behoove this juvenile to achieve as much education as possible, he should not remain incarcerated for reasons beyond his control. Due process demands otherwise. Thus, I respectfully dissent.