State of Louisiana in the Interest of M.S. .

STATE OF LOUISIANA IN * NO. 2020-CA-0346
THE INTEREST OF M.S.
*
COURT OF APPEAL
*
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
JUVENILE COURT ORLEANS PARISH
NO. 2019-339-02-DQ-F, SECTION “F”
Honorable Mark Doherty, Judge
******
JUDGE PAULA A. BROWN
******
(Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge
Tiffany G. Chase)

Penny Kissinger
DISTRICT ATTORNEY’S OFFICE, ORLEANS PARISH
1100 Milton-B Street
New Orleans, La 70112

Leon Cannizzaro
DISTRICT ATTORNEY, ORLEANS PARISH
Donna Andrieu
Adele Krieger
DISTRICT ATTORNEY’S OFFICE, ORLEANS PARISH
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR THE STATE/APPELLEE

Cheri J. Deatsch
ORLEANS PUBLIC DEFENDERS
2601 Tulane Avenue, Suite 700
New Orleans, LA 70119

Katherine M. Franks
LOUISIANA APPELLATE PROJECT
P.O. Box 220
Madisonville, LA 70447

Meghan Harwell Bitoun
LOUISIANA APPELLATE PROJECT
P.O. Box 4252
New Orleans, LA 70178--4252

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED AS AMENDED
10/5/2020

PAB
RLB
TGC

The State filed a delinquency petition charging three female juveniles, M.S.,

M.R., and N.S.,1 with having committed a carjacking, a violation of La. R.S.

14:64.2, on December 3, 2019. At the time the offense was committed, M.S. was

12 years old, M.R. was 16 years old, and N.S. was 13 years old.

The juveniles were arrested on December 3, 2019, and a continued custody

hearing was held on December 5, 2019; M.S. is detained in secure custody. Prior

to the adjudication hearing, the juveniles requested to plead guilty to the charge,

but the requests were refused by the juvenile court on grounds of the gravity of the

case. The juveniles objected and sought a writ on the issue, which was denied.2

An adjudication hearing was held on January 16-17, 2019, and on January

17, 2019, the juvenile court found M.S., M.R. and N.S. delinquent of the crime of

carjacking. A disposition hearing was held over several days, January 31 and

February 13, 14, and 19, 2019. At the conclusion of the hearing on February 19,

2019, the juvenile court, setting forth extensive reasons, imposed a disposition for

1
Pursuant to Uniform Rules—Courts of Appeal, Rules 5–1 and 5–2, the initials of the juveniles
involved in this matter will be used instead of their names.
2
State in the Interest of M.R., et al, 20-0048 (La. App. 4 Cir. 1/16/20)(unpubl.).

1

M.S., of custody in secure care with the Department of Corrections, Office of

Juvenile Justice, until she was 18 years old.3 On February 20, 2020, a judgment of

disposition was issued by the juvenile court. The juvenile court ordered that M.S.

be given credit for time served from her arrest on December 3, 2019. In addition,

the juvenile court restricted modification of M.S.’s disposition for four years:4

4. Modification of Disposition
a. After four years in the custody of the Department of Public
Safety and Correction, Office of Juvenile Justice, the youth’s attorney
may file a motion to modify the disposition and request a hearing to
determine if the youth is eligible for a step-down to non-secure care . .
. .

In this timely appeal, M.S. challenges only the judgment of disposition and

assigns two errors:

1. The juvenile court’s rendering of the juvenile life sentence to be
non-modifiable for 4 years is an unlawful renunciation of the court’s
power and duty to modify a juvenile disposition; and

2. M.S.’s juvenile life sentence violates the Eighth Amendment’s ban
on excessive punishment.

For the reasons discussed below, we find the juvenile court legally erred by

restricting modification of M.S.’s disposition for four years; thus, we amend the

judgment of disposition by deleting the restriction. In all other respects, we affirm

M.S.’s disposition, as amended.

STATEMENT OF FACTS

On December 3, 2019, M.S., N.S., and M.R., devised a plan that lured the

victim into giving them a ride to a fictitious location. As the victim was driving,

3
M.R. and N.S. were ordered to secure care in the custody of the Department of Corrections,
Office of Juvenile Justice, until age 21 years old. Both juveniles have appeals pending in this
Court, which are filed under separate docket numbers.
4
See La. Ch.C. art. 909 which will be discussed infra.

2

the girls, collectively, physically forced the victim from her vehicle, causing her

injuries and stole the vehicle, which they crashed shortly afterwards.5

The victim testified that on December 3, 2019, at approximately 1:30 or 2:00

in the afternoon, she was going to the offices of La Petite Theatre, which were

located above H&M in downtown New Orleans. The victim parked her white

Honda CRV in the parking lot, which faces the river, behind the H&M building.

As she was locking her vehicle, the victim noticed three girls walking through the

parking lot, and one of the girls was visibly crying and limping. The girls

approached the victim and asked if she knew where the seventh ward was, and the

victim pointed in that direction. Next, the girls asked if she knew where the bus

stop was, and the victim said she did not know. Since one of the girls was limping

and crying, the victim inquired what was wrong. The girls told the victim that they

were sisters, their mother lived out of state, and their grandmother, who they lived

with, had just died within the last hour. The girls continued that they were trying

to get to their grandmother’s house located on Mirabeau Avenue to meet with

family, and asked the victim to give them a ride. The victim agreed. Two of the

girls sat in the back seat of her vehicle—one with a partially gray sweatshirt and

another with a leopard print bonnet. The third girl sat in the front seat; the victim

5
At the adjudication hearing, in addition to the victim, the following pertinent witnesses
testified: A bystander who videoed a portion of the carjacking testified as to authenticity of the
video which was offered, filed, introduced, and admitted into evidence; Officers Herbert
Franklin and Chadwick Taylor of the New Orleans Police Department (“NOPD”) testified as to
the apprehension of the three girls; Officer Taylor, who videoed the show-up identification,
testified to the authenticity of the video which was offered, filed, introduced, and admitted into
evidence; Kelsey Saltrelli, a crime scene technician who worked the carjacking, testified as to
her findings, identified her report, crime scene photographs, and a cell phone recovered from the
scene which were offered, filed, introduced, and admitted into evidence; and Detective Douglas
Butler, of the NOPD, who conducted the show-up identification procedure, testified that the
victim identified all three girls as having committed the carjacking.

3

described her as the smallest who wore shoes that slipped off easily.6 As the

victim began driving to the address they had given her, the girls asked her to pull

over. The victim complied. The girl in the passenger side backseat exited the

vehicle. The girl directly behind the driver’s side, that had been complaining her

leg was broken, asked the victim for help getting out of the car, and the victim

exited the vehicle to help her. Suddenly, one of the girls started to run. The

victim, sensing something was wrong, got back in her car, and all three girls took

off running. The victim locked her doors and noticed one of the girls’ cell phone

in the backseat. Next, the smallest girl with the slip on shoes knocked on the car

window and asked the victim if she wanted to come in to see her grandmother. At

that point, the victim noticed her keys were missing. The victim offered to give

the girls the cell phone one of them had left behind, in return for her keys.

According to the victim, the girls became belligerent, demanding that the victim

return the cell phone. The victim began pushing down on the locks of her car, but

the girls were unlocking the doors with the victim’s key. Suddenly, the girls

opened the car door, and the girl in the gray sweatshirt attempted to pull the victim

out of the car. The victim bit her on the forearm. The girl in the leopard print

bonnet entered the vehicle through the passenger side door and threatened to Mace

the victim. The girls worked together to force the victim out of the vehicle. The

girls took the victim’s phone, knocked her glasses off, and pulled her hair. Two of

the girls continued to pull and push on the victim while the third girl hit the victim

over the head with the slip on shoes. The victim testified the girls beat her, kicked

6
In court, the victim identified all three girls referencing the clothing each girl wore on the day
of the carjacking. The State identified, for the record, the name of the girl the victim referred
to—M.S., the smallest girl who wore slip on shoes; N.S., the girl who wore the leopard print
bonnet; and M.R., the girl with wore the gray sweatshirt. Also, Officer Taylor identified N.S. as
the girl driving the car.

4

her, and pulled out chunks of her natural hair. After pushing the victim out of the

car, the girl in the leopard print bonnet got behind the driver’s wheel, and the other

two girls jumped in the car. In an attempt to stop the girls from taking the car, the

victim stepped in front of the vehicle, and the girl driving lurched the car forward.

The victim jumped on the hood of the car. The girls continued to drive the car and

tried to shake the victim off the hood. The victim said she hung on to the hood of

the car for about 10 blocks. All the while, the girls screamed at the victim to get

off the hood and threw things at her through the passenger window, including a

metal water bottled that busted the victim’s lip. Blood from the victim’s lip

splattered on the windshield. Finally, amid the victim yelling for them to stop, the

girls slammed on the brakes, and the victim jumped off the car.

The girls continued driving the victim’s car until they crashed it several

blocks later. Less than an hour later, the three girls were apprehended by the New

Orleans Police Department (“NOPD”) several blocks away from the location of the

offense.

The victim testified she was physically injured during the incident; she lost

two nails, had a scraped knee, muscle soreness, a busted lip, and she lost clumps of

hair. At the disposition hearing, the victim testified that she experienced monetary

loss, and suffered with anxiety and panic attacks because of the incident.

ERRORS PATENT

This Court has adopted a practice of conducting an errors patent review in

juvenile delinquency cases. State in Interest of W.B., 16-0642, p. 4 (La. App. 4 Cir.

5

12/7/16), 206 So.3d 974, 978. A review of the record reveals one error patent,

which is raised as an error, and it will be discussed in assignment of error number

one.7

DISCUSSION

Assignment of error no. 1 and error patent (restricting modification of
disposition):

M.S. asserts that the juvenile court lacked authority to order her disposition

to be served with the restriction of modification of the disposition for four years

and request that this Court strike the restriction. The State counters that it was

within the juvenile court’s board discretion to restrict the modification.

Louisiana Children Code Article 909 provides:

Except as provided for in Article 897.1, after the entry of any order of
disposition, the court retains the power to modify it, including
changing the child’s legal custody, suspending all or part of any order
of commitment, discharging conditions of probation, or adding any
further condition authorized by Article 897(B) or 899(B). It may also
terminate an order of disposition at any time while it is still in force.

In State v. J.R.S.C., 00-2108, p. 1 (La. 6/1/01), 788 So.2d 424, 425, the Supreme

Court, in a per curiam, explained, “the juvenile may file his motion to modify the

judgment of disposition at any time while the disposition is in force. . . .” As noted

in Article 909, only La. Ch.C. art. 897.1 limits the period of time in which a

juvenile’s disposition may be modified:

7
The record does not reflect that the juvenile court advised M.S. of the time period to file post-
conviction relief under La. C.Cr.P. art. 930.8, which requires the trial court to inform a defendant
of the delays for filing post-conviction relief; however, this language is merely precatory and
does not bestow an enforceable right upon an individual defendant. State ex rel. Glover v. State,
93-2330, 94-2101, 94-2197, p. 21 (La. 9/5/95), 660 So.2d 1189, 1201; State v. Handy, 01-0005,
p. 5 (La. App. 4 Cir. 1/24/01), 779 So.2d 103, 105. Nevertheless, in the interest of judicial
economy, this Court hereby notifies M.S. that La. C.Cr.P. art. 930.8 generally requires that an
application for post-conviction relief be filed within two years of the finality of the adjudication
and disposition. See La. C.Cr.P. art. 930.8.

6

A. After adjudication of a felony-grade delinquent act based upon a
violation of R.S. 14:30, first degree murder or R.S. 14:30.1, second
degree murder, the court shall commit the child who is fourteen years
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 until the child attains the age of twenty-one years
without benefit of parole, probation, suspension of imposition or
execution of sentence, or modification of sentence.

***
D. Juveniles in secure care for an adjudication for a violation of R.S.
14:42 [first degree rape] or 44 [aggravated kidnapping] shall be
eligible for modification after serving thirty-six months of the
disposition. Juveniles in secure care for an adjudication for a violation
of R.S. 14:64 [armed robbery] shall be eligible for modification after
serving thirty-six months of the disposition or, if the disposition is less
than thirty-six months, two-thirds of the disposition.

In addition, Article 897.1 is applicable only in certain instances. First, the juvenile

must be over the age of 14 years old. In this case, M.S. was 12 years old at the

time she was committed to custody. Second, the juvenile must be adjudicated

guilty of certain felony-grade delinquent acts which does not include carjacking.

Reading the plain language of La. Ch.C. art. 909 in pari materia with Article

897.1, we find the juvenile court lacked authority to restrict modification of M.S.’s

disposition. Thus, the juvenile court legally erred in ordering M.S.’s disposition to

be served with the restriction of non-modification of the disposition for the first

four years.8 This claim has merit.

When an error in the disposition involves the imposition of restrictions

beyond what is authorized in the statutes, appellate courts are instructed to correct

8
See State v. Johnson, 55 So.2d 782, 783 (La. 1951)(wherein the Supreme Court held that an
illegal sentence is one “not authorized or directed by law”; State ex rel. S.D., 01-670, p. 14 (La.
App. 5 Cir. 1/29/02), 807 So.2d 1138, 1146 (wherein the appellate court held that a
disposition by the juvenile court must be authorized by law).

7

the disposition.9 In addition, “[w]here the defect in [disposition] does not involve

the exercise of discretion, the [disposition] may be corrected on appeal by

amendment rather than remand.” State in Interest of H.L.F., 97-2651, p. 6 (La.

App. 4 Cir. 5/20/98), 713 So.2d 810, 813 (citation omitted). Accordingly, we

amend the judgment of disposition by deleting this restriction.

Assignment of error no. 2 (excessive sentence):

M.S. asserts her disposition in secure custody until the age of 18 years old,

which is a juvenile life sentence for a twelve year old, violates the Eight

Amendment’s “ban on excessive punishment.” M.S. contends that juvenile life

sentences are rarely imposed, and if imposed, only in cases involving much more

severe and violent facts.10 M.S. argues that her disposition of up to six years in

secure care is excessive when compared to somewhat similar cases where the

dispositions range from two to three years in secure custody.11 M.S. complains

that the only secure care option for her, WARE Youth Center (“WARE”) in

9
La. C.Cr.P. art. 882(A) provides, “[a]n illegal sentence may be corrected at any time by the
court that imposed the sentence or by an appellate court on review.” In State in Interest of
J.T., 11-1646, p. 24 (La. App. 4 Cir. 5/16/12), 94 So.3d 847, 862, this Court recognized that La.
C.Cr.P. art. 882 is applicable in juvenile proceedings by La Ch.C. art. 104(1). See, In re J.C., 09-
2000, 2010 WL 2802104, at *3 (La. App. 1 Cir. 7/15/10)(wherein the appellate court found the
juvenile court legally erred in ordering the juvenile’s disposition, for adjudications for theft and
simple burglary, to be served without benefit of parole for the first three years of custody which
was not authorized by law).
10
In support, M.S. cites: State in the Interest of C.L., 15-593 (La. App. 5 Cir. 12/23/15), 184
So.3d 187, wherein C.L., a female, was sentenced to juvenile life for accessory after the fact to
second degree murder; and State ex rel. S.J., 10-990 (La. App. 5 Cir. 5/24/11), 66 So.3d 1142,
wherein a 15 year old male, was ordered to serve juvenile life until age 21 years old (six years)
for an adjudication of aggravated battery with a knife when he held a knife to a women’s throat,
cut her neck, and threatened to rape the women.
11
In support, M.S. cites: State in the Interest of T.W., 15-262 (La. App. 5 Cir. 9/23/15), 175
So.3d 504, wherein a juvenile male, received two years in secure custody for illegal possession
of a stolen vehicle valued over $500.00; and State ex rel. A.M., 07-1228 (La. App. 4 Cir. 4/9/08),
983 So.2d 176, wherein a male juvenile, after he punched the victim in the face and shattered the
victim’s teeth during a carjacking, received three years with eighteen months suspended, and
released on parole for the balance of the eighteen months.

8

Coushatta, is over a four hour drive away from New Orleans, and a 2019 report by

the Task Force on Secure Care Standard and Auditing which was established by

the Louisiana Legislature, expressed concerns regarding oversight at WARE

particularly for female youth. M.S. argues the juvenile court failed to impose the

least restrictive disposition authorized by law especially in light of M.S. being

remorseful and taking responsibility for her actions;12 her optimistic academic

ability and future; her stable home life;13 and her growth in maturity and good

decision making ability since being in secure custody. 14 M.S. prays that her

disposition be reversed and the matter remanded to the juvenile court for

imposition of a disposition to a term of years and custody with her mother.

12
In a letter from M.S. to the juvenile court, M.S. acknowledged and apologized for her
wrongdoing. Also, M.S. wrote a letter to the victim, although it was not contained in the
appellate record. Both letters were offered, filed, introduced, and admitted at the disposition
hearing.
13
M.S.’s mother was employed by Tulane hospital, and she attended the hearings. M.S.’s sister
attended community college. M.S.’s mother wrote a letter to the juvenile court expressing
M.S.’s affirmative qualities and promising to get M.S. involved in positive activities to help M.S.
attract better friends.
14
At the disposition hearing, Daynia Dienna Dupass, a juvenile detention counselor for the
Juvenile Justice Intervention Center, explained that her duties were similar to a correctional
officer. She observed M.S. while in secure custody and described M.S. as listening to others;
doing her school work; having goals for the future; working on and improving social and coping
skills; and having strong resolve in the face of adverse circumstances such as being around the
predominantly male juveniles in custody at the detention center. This letter was offered, filed,
introduced, and admitted into evidence.

In addition, a letter from Kyla Burke, a social worker for the Orleans Parish Public Defender’s
Office, was offered, filed, introduced, and admitted into evidence. In the letter, Ms. Burke set
forth her findings of M.S.’s home life, education, and extracurricular activities. Ms. Burke
offered a disposition plan of release to M.S.’s mother with support from community
organizations such as Operation Restoration, or if not released on probation, suggested a non-
secure care option such as a group home.

9

The State counters the juvenile court considered the dispositional guidelines

of Article 901 and imposed the least restrictive disposition for the circumstances of

the case, the needs of the child, and the best interests of society. 15

In reviewing an alleged constitutionally excessive sentence, this Court in

State in Interest of R.C., 16-0966, pp. 2-3 (La. App. 4 Cir. 12/28/16), 208 So.3d

962, 964-65, explained in pertinent part:

A juvenile has the same constitutional rights against excessive
punishment as an adult. See La. Ch.C. art. 808; State in Interest of
D.L.S., 30,322, p. 11 (La. App. 2 Cir. 1/21/98), 706 So.2d 187, 193.
Article 1, Section 20 of the Louisiana Constitution of 1974 provides
that “[n]o law shall subject any person . . . to cruel, excessive, or
unusual punishment.” Although within the statutory limits, a sentence
is constitutionally excessive if it is “grossly out of proportion to the
severity of the crime” or is “nothing more than the purposeless and
needless imposition of pain and suffering.” State v. Brogdon, 457
So.2d 616, 625 (La. 1984). A trial judge has broad discretion when
imposing a sentence, and a reviewing court may not set a sentence
aside absent a manifest abuse of discretion. In addressing a
constitutional excessiveness claim, the relevant issue is “not whether
another sentence might have been more appropriate but whether the
trial court abused its broad sentencing discretion.” State v. Smith,
2001-2574, p. 7 (La. 1/14/03), 839 So.2d 1, 4.

When a juvenile appeals his disposition as being excessive, the
appellate court must first review the record to determine whether the
juvenile court has imposed the least restrictive disposition that is
consistent with the circumstances of the case, the child’s needs, and
the best interest of society. See La. Ch.C. arts. 683 and 901; State ex
rel. D.M., 2002-2528, pp. 9-10 (La. App. 4 Cir. 7/2/03), 851 So.2d
1216, 1222. “[‘]Following that determination, the reviewing court
need only explore for constitutional excessiveness in light of the
circumstances of the case and the background of the juvenile.[’]” Id.,
p. 10, 851 So.2d at 1222 (quoting State in interest of T.L., 28,564, p. 2
(La. App. 2 Cir. 5/8/96), 674 So.2d 1122, 1124.).

See also, State in Interest of R.A., 11-0440, p. 10 (La. App. 4 Cir. 11/2/11), 101

So.3d 957, 963 (citations omitted)(wherein this Court explained in reviewing a

15
At the disposition hearing, the State called the victim to give her impact statement. In
addition, Officer Brian Williams, employed by NOPD, who was present when M.S. was
apprehended and taken into custody, testified that M.S. was rude and insulted him. Officer
William’s body-cam video was offered, filed, introduced, and admitted into evidence.

10

disposition for excessiveness, a “manifest abuse of the wide discretion” is afforded

to the juvenile court, and this Court looks to whether the lower court took

cognizance of the general guidelines provided in La. Ch.C. art. 901, if the record

reflects an adequate factual basis for the commitment imposed, and in light of the

circumstances of the case and the background of the juvenile, is the disposition

constitutionally excessive).

In the judgment of disposition, the juvenile court detailed the facts of the

case based on the testimony and evidence presented. The juvenile court

determined that the juveniles made a plan before they met the victim and

“concocted an elaborate false story to take advantage of a stranger’s sympathy. . .

.” It noted not one of the juveniles backed out of the plan.

The juvenile court succinctly set forth two general rules to guide it in

imposing the juveniles’ dispositions as provided for in La. Ch.C. art. 901(A) and

(B): (1) a juvenile court shall not remove a youth from the parents’ custody unless

removal is necessary to both to protect the juvenile’s welfare or safety and to

protect the public safety; and (2) a juvenile court should impose the least restrictive

disposition which the court finds is consistent with the circumstances of the case,

the needs of the youth, and the best interest of society. The juvenile court

reviewed, as to each of the girls, all of the guidelines set forth in La. Ch.C. art. 901.

In considering placement of M.S. on probation, the juvenile court considered the

guidelines set forth in section (D) of art. 901:

(1) The child’s delinquent conduct neither caused nor threatened
serious harm.

(2) The child did not contemplate that his delinquent conduct would
cause or threaten serious harm.

(3) The child acted under strong provocation.

11

(4) There were substantial grounds tending to excuse or justify the
child's delinquent conduct, though failing to establish a defense.

(5) The victim of the child’s delinquent conduct induced or facilitated
its commission.

(6) The child or his family has compensated or will compensate the
victim of his delinquent conduct for the damage or injury that the
victim sustained.

(7) The child has no history of prior delinquency or has led a law-
abiding life for a substantial period of time before the commission of
the instant delinquent act.

(8) The child’s delinquent conduct was the result of circumstances
unlikely to recur.

(9) The character and attitudes of the child indicate that he is unlikely
to commit another delinquent act or crime.

(10) The child is particularly likely to respond affirmatively to
probationary treatment.

(11) The commitment of the child would entail excessive hardship to
himself or his family.

The juvenile court concluded, “only five of the statutory considerations suggest

probation. . . .[t]he inapplicability of the first six considerations, all of which go to

the actual circumstances of the carjacking itself, weigh against probation.”

Notably, the juvenile court accounted this was not a crime of opportunity but that

the juveniles had “jointly planned their intended course of action. . . .”16 In

addition, it noted that M.S. had three prior separate theft cases, one of which

included a charge of criminal damage to property. The juvenile court continued

16
The juvenile court referenced the testimony of Dr. Sarah Deland, board certified forensic
psychologist, who was called by the juveniles’ attorneys writing:

Dr. Deland testified that immature brain development shows itself by the inability
to plan, the inability to anticipate consequences, emotional instability, and the
lack of coordinated efforts. From the story of what happened here, it appears none
of the girls suffers from the common effects of immature brain development.
Their actions demonstrated a plan.

12

that although M.S. successfully completed probation imposed in the unrelated theft

cases, she “still participated in the present crime.” The juvenile court, in

“assess[ing] the appropriateness of removal from the home for treatment and

rehabilitation in state custody,” considered the factors in section (C) of art. 901:

(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.

The juvenile court recognized that in the present case there was no illegal carrying,

use, or possession of a firearm. It noted carjacking was designated as a crime of

violence. La. R.S. 14:2(B)(28). The juvenile court determined that M.S. posed a

risk to commit another crime as she previously was given a second chance through

probation but choose to commit another crime. The juvenile court opined that the

“three youths recklessly endangered the victim’s life, their own lives, and lives of

innocent people on the street, and that they each pose an undue risk to the public

that each will commit another offense.” In explaining the factors which warranted

commitment to secure care, the juvenile court referenced that the testimony at the

disposition hearing reflected that M.S. did well in pre-trial detention and her

behavior had improved while in custody, noting:

Defense counsel argued that it was the need for wrap-around
services[17] that lead to the girls’ improved behavior, yet the bottom
line is that those services were provided in a controlled environment

17
Wrap-around services are coordinated services to provide safety, stability, and medical and
mental health support, education and strong social activities.

13

with structure, regimentation, and schedule. The fact that wrap-around
services were available in the community, though unused, for each
youth prior to their detention, makes the point that it is the structured
conditions of a controlled environment that have given the services
provided the opportunity to have a positive effect on each of them.

The juvenile court concluded that “each youth is in need of correction treatment

and a custodial environment . . . ,” and found that “a disposition less than secure

care in OJJ custody will depreciate the significance and seriousness of what

happened. . . .”

We conclude that the juvenile court’s imposition of secure care is supported

by the record.

Next, M.S.’s disposition was within the statutory limits.18 Although a

disposition is within the statutory limits, it can be constitutionally excessive if it is

“‘grossly out of proportion to the severity of the crime’ or is ‘nothing more than

the purposeless and needless imposition of pain and suffering.’” State in Interest of

R.C., 16-0966, p. 2, 208 So.3d at 964-65 (quoting State v. Brogdon, 457 So.2d 616,

625 (La. 1984)). From the record, it is clear that the juvenile court carefully

determined that the disposition imposed was the least restrictive

disposition consistent with the circumstances of the case, the needs of the child,

and the best interest of society. In addition, the judgment of disposition, as

amended, allows modification by the juvenile court at any time to continue to

18
The children’s code does not set forth a specific a term for a disposition for carjacking.
Louisiana Children’s Code Article 898 pertinently provides that “[n]otwithstanding any other
provision of law to the contrary, 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,” and if the child was “under thirteen at the time of a commitment to custody of the
Department of Public Safety and Corrections, . . . the judgment shall terminate upon the child’s
reaching age eighteen.” Turning to the adult code, the possible term of imprisonment for
carjacking is two to twenty years, without the benefit of probation, parole, or suspension of
sentence, and carjacking is considered a crime of violence. La. R.S. 14:64.2(B) and 14:2(B)(28)
In the case sub judice, M.S. was twelve-years old at the time of her commitment to custody to
the Department of Public Safety and Correction; as result, she faced a potential disposition term
of six years until her eighteenth birthday which is within the statutory limit of La. R.S. 14:64.2.

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ensure the least restrictive disposition for M.S. that is consistent with the

circumstances of the case, the child’s needs, and the best interest of society.

Although M.S. points out similar cases where a less severe disposition was

imposed and we recognize juvenile life dispositions should be sparingly imposed,

we do not find M.S.’s disposition was grossly out of proportion to the severity of

the offense committed or a needless imposition of pain and suffering.

Based on the record before this Court, and considering the wide discretion

afforded a juvenile court in juvenile matters, we find the juvenile court did not

abuse its discretion in the dispositional phase. This claim lacks merit.

CONCLUSION

The juvenile court legally erred by restricting modification of M.S.’s

disposition; thus, we amend the judgment of disposition by deleting the restriction.

In all other respects, M.S.’s disposition is affirmed, as amended.

AFFIRMED AS AMENDED

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