Opinion
NO. 2015 KJ 1944
06-03-2016
STATE OF LOUISIANA IN THE INTEREST OF T.J.
Hillar C. Moore III District Attorney Otha "Curtis" Nelson Jr. Cristopher J.M. Casler Assistant District Attorneys Baton Rouge, Louisiana Attorneys for Appellee, State of Louisiana Annette Roach Lake Charles, Louisiana Attorney for Defendant/Appellant, T.J.
NOT DESIGNATED FOR PUBLICATION
On Appeal from The Juvenile Court, Parish of East Baton Rouge, State of Louisiana
Trial Court No. 108071
The Honorable Adam J. Haney, Judge Presiding Hillar C. Moore III
District Attorney
Otha "Curtis" Nelson Jr.
Cristopher J.M. Casler
Assistant District Attorneys
Baton Rouge, Louisiana Attorneys for Appellee,
State of Louisiana Annette Roach
Lake Charles, Louisiana Attorney for Defendant/Appellant,
T.J. BEFORE: PETTIGREW, HIGGINBOTHAM, AND CRAIN, JJ. CRAIN, J.
The juvenile, T.J., was adjudicated a delinquent for committing the offense of armed robbery. The juvenile court imposed a disposition of commitment to the Office of Juvenile Justice for a period of four years. T.J. now appeals, challenging the disposition. We affirm the adjudication and, due to patent error, vacate the disposition and remand with instructions.
FACTS
On June 22, 2015, sometime after 10:30 p.m., two robbers approached Justin Price in a parking lot at the Baton Rouge Community College (BRCC), where he was a student. One of the robbers pulled out a gun and demanded that Justin kneel on the ground. The other robber demanded that Justin take out his wallet. The robbers took the wallet, cell phone, and watch that Justin removed from his pocket, and then fled.
Justin returned to his apartment building, called 911, and gave a description of the robbers. Minutes later, police apprehended T.J. and his brother, both juveniles, and Justin positively identified them as the persons who robbed him at gunpoint. Police located the gun used in the robbery, which was loaded with five hollow-point bullets.
T.J.'s brother, who also has the initials "T.J.", was adjudicated a delinquent for the commission of this armed robbery. This court affirmed the brother's adjudication in State in Interest of T.J., 15-1945, 2016WL1545167 (La. App. 1 Cir. 4/15/16).
DISPOSITION ERRORS
On appeal, T.J. solely challenges the imposed disposition of commitment to the Office of Juvenile Justice for a period of four years. However, because we find patent error that leads us to vacate the disposition imposed, we do not consider T.J.'s argument that the juvenile court failed to address his needs and the circumstances of the case in arriving at the illegal disposition vacated herein, or his argument that the vacated illegal disposition of four-years confinement is constitutionally excessive. See State in Interest of Handy, 559 So. 2d 795, 795 n.1 (La. App. 1 Cir. 2/21/90) (noting the propriety of patent error review in juvenile cases, despite the absence of any explicit authority for doing so in the Children's Code); see also State in Interest of Wilkerson, 542 So. 2d 577, 581 (La. App. 1 Cir. 1989).
While we recognize that this court analyzed the claim of excessiveness when rendering a decision on the appeal by T.J.'s brother (State in Interest of T.J., 2016WL1545167 at pp.2-3), we pretermit analysis of the disposition for excessiveness in this matter since we are vacating the disposition and any analysis of the disposition would be dicta and, thus, would not be binding on the juvenile court when the vacated disposition is reimposed at the new disposition hearing. Cf. Garrison v. St. Charles Gen. Hosp., 03-0423 (La. 4/25/03), 845 So. 2d 1047, 1048.
Louisiana Children's Code article 897.1B governs the imposition of disposition following a juvenile's adjudication as delinquent for the offense of armed robbery, providing:
After adjudication of a felony-grade delinquent act based upon a violation of R.S. 14:64, armed robbery, the court shall commit the child who is fourteen years of age or older at the time of the commission of the offense to the custody of the Department of Public Safety and Corrections to be confined in secure placement for the length of the term imposed by the court at the disposition hearing without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence. (Emphasis added)Article 897.1 requires that the disposition for the offense of armed robbery is confinement in secure placement without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence. See State ex rel. A.M., 98-2752 (La. 7/2/99), 739 So. 2d 188, 190-91. The length of confinement, however, is subject to the juvenile court's discretion. See State ex rel, A.M., 739 So. 2d at 191.
In this case, the juvenile court failed to impose a disposition of confinement in secure placement without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence as mandated by Article 897.1. Thus, the disposition imposed is illegally lenient and cannot stand. See State ex rel, A.M., 739 So. 2d at 191. Just as an adult offender has no right to an illegally lenient sentence, a juvenile has no right to an illegally lenient disposition. Cf. State v. Williams, 00-1725 (La. 11/28/01), 800 So. 2d 790, 797; State v. Bell, 14-1046 (La. App. 1 Cir. 1/15/15), 169 So. 3d 417, 426.
The written judgment of disposition actually provides that T.J. is to be committed to the "non-secure custody of the Department of Public Safety and Corrections."
When procedures are not provided in the Children's Code, or otherwise by law, the court shall proceed in accordance with the Code of Criminal Procedure. La. Ch. Code art. 104(1). Louisiana Code of Criminal Procedure article 882A authorizes an appellate court to correct an illegal sentence. See State in Interest of J.T., 11-1646 (La. App. 4 Cir. 5/16/12), 94 So. 3d 847, 862 (recognizing that Article 882 is applicable in juvenile proceedings). If, however, correction would involve the exercise of sentencing discretion, the appellate court may not make the correction. See State v. Haynes, 04-1893 (La. 12/10/04), 889 So. 2d 224.
Considering the unique nature of juvenile proceedings and the vast discretion of the juvenile court in imposing a disposition, we find that correcting the sentencing error related to the requirement of confinement "in secure placement" involves more than ministerial correction. See State in Interest of J.B., 08-1411, 2010WL8966073, p.2 (La. App. 4 Cir. 6/23/10) (acknowledging the vast discretion afforded to the juvenile court due to the special nature of the proceedings). Because it is within the juvenile court's discretion to impose a different period of confinement, we vacate the illegal disposition and remand this matter for a new disposition hearing and imposition of a disposition that complies with Article 897.1. Accord State ex rel. A.M., 739 So. 2d at 191; State in Interest of T.J., 15-1945, 2016WL1545167, pp. 3-4 (La. App. 1 Cir. 4/15/16). The new disposition must also comply with Louisiana Children's Code article 898A and provide credit for any time T.J. served in secure detention prior to imposition of disposition. See Sate in Interest of C.M., 13-128 (La. App. 5 Cir. 10/30/13), 128 So. 3d 1118, 1135, writ denied, 13-2796 (La. 5/30/14), 140 So. 3d 1172 (recognizing that under Article 898A, the requirement that the juvenile be given credit for time served is mandatory). T.J. should also be advised of the two-year period for applying for postconviction relief as required by Louisiana Code of Criminal Procedure article 930.8C. See e.g. State in re J.A., 15-641 (La. App. 3 Cir. 12/2/15), 179 So. 3d 959, 961, writ denied, 15-2317 (La. 3/4/16), ___ So. 3d ___ (recognizing the jurisprudential rule that such notice should be given even though it is not specifically required by Louisiana's Children's Code); La. Code Crim. Pro. art. 930.8C.
We emphasize that this case is a juvenile proceeding, which distinguishes it from adult proceedings where this court has recognized and corrected illegally lenient sentences, including those that failed to provide that the sentences were to be served at hard labor. See e.g., State v. Archille, 13-0675, 2013WL6858343, p.4 (La. App. 1 Cir. 12/27/13), writ denied, 14-0217 (La. 8/25/14), 147 So. 3d 700; State v. Gainey, 10-1545, 2011WL1103585, p.4 (La. App. 1 Cir. 3/25/11); State v. McGee, 08-1076, 2009WL390809, p.4 (La. App. 1 Cir. 2/13/09). --------
ADJUDICATION AFFIRMED; DISPOSITION VACATED; REMANDED WITH INSTRUCTIONS.