State of Louisiana in the Interest Of J.R.

STATE OF LOUISIANA IN THE INTEREST NO. 22-KA-339
OF J.R.
FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 2021-JU-223, DIVISION "B"
HONORABLE AMANDA L. CALOGERO, JUDGE PRESIDING

November 30, 2022

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Jude G. Gravois,
Marc E. Johnson, and John J. Molaison, Jr.

ADJUDICATIONS AFFIRMED; DISPOSITIONS VACATED IN PART;
REMANDED FOR RESENTENCING
JGG
MEJ
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Elizabeth B. Curren
Douglas E. Rushton

COUNSEL FOR DEFENDANT/APPELLANT,
J.R.
Katherine M. Franks

GRAVOIS, J.

Juvenile-appellant, J.R., appeals his adjudications of delinquency for illegal

possession of a handgun as a juvenile and for battery of a dating partner. For the

following reasons, we affirm the juvenile’s adjudications. We also affirm the

disposition on the charge of illegal possession of a handgun; however, due to a

patent error, we vacate the disposition as to the charge of battery of a dating

partner and remand for resentencing.

PROCEDURAL HISTORY

On August 18, 2021, the Jefferson Parish District Attorney filed a

delinquency petition charging J.R.1 with illegally possessing a handgun as a

juvenile in violation of La. R.S. 14:95.8. J.R. denied the allegations of the petition

on August 23, 2021. On November 5, 2021, J.R. and his mother failed to appear

for an Informal Adjustment Agreement status hearing, so the juvenile court issued

a warrant for J.R.’s arrest and an attachment for his mother.

On March 16, 2022, the Jefferson Parish District Attorney filed a

delinquency petition charging J.R. with battery of a dating partner in violation of

La. R.S. 14:34.9. J.R. denied the allegations of the petition on March 21, 2022.

The adjudication hearing on both petitions was set for April 27, 2022.

On April 19, 2022, following a hearing, the juvenile court found that J.R.

violated the electronic monitoring program and ordered that J.R. be held in Rivarde

Detention Center pending the adjudication hearing set on April 27, 2022. On that

same date, the juvenile court ordered an emergency psychological and, if indicated,

psychiatric evaluation, as requested by J.R.’s attorney.

1
Pursuant to Uniform Rules–Courts of Appeal, Rules 5-1 and 5-2, the initials of all
juveniles involved will be used to protect their identities. State in Interest of C.L., 15-593 (La.
App. 5 Cir. 12/23/15), 184 So.3d 187, 188, n.1.

22-KA-339 1

On April 27, 2022, J.R. and his mother signed a “Waiver of Rights and Plea

of Guilty” form. In that form, J.R. admitted to the allegations of the petitions and

indicated that he understood that because he had entered admissions, the juvenile

court could “sentence” him to the Office of Juvenile Justice for a period of time of

one year, or until his 21st birthday, whichever was shorter.

On May 24, 2022, a psychological evaluation by Rafael F. Salcedo, Ph.D.,

which was dated April 22, 2022, was filed into the record. On May 26, 2022, a

dispositional hearing was held; the juvenile court committed J.R. to the Office of

Juvenile Justice for six months on each adjudication, to run consecutively. This

appeal followed.

FACTS

Because J.R. admitted the allegations contained in the two petitions, the

underlying facts were not fully developed at an adjudication hearing.

Nevertheless, in the August 18, 2021 petition, the State alleged that on or about

August 14, 2021, J.R. violated La. R.S. 14:95.8 in that he, being a child under the

age of seventeen years old, did knowingly possess a handgun on his person. In the

March 16, 2022 petition, the State alleged that on or about March 12, 2022, J.R.

violated La. R.S. 14:34.9 in that he did willfully and unlawfully commit a battery

by the intentional use of force or violence upon the person of a dating partner, to

wit: minor (D.S.), without the consent of the victim.

At the adjudication hearing, J.R. stated that he was admitting to battery of a

dating partner and illegal possession of a firearm. He explained, “I had the gun at

an underage at the public place in society. And the other one, hitting a female. I

hit a female.” However, the juvenile indicated that he did not injure anybody.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, J.R. argues that the juvenile court erred in

imposing two consecutive dispositions of six months that totaled one year. He

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contends that the dispositions individually were excessive since he was a first

offender and neither offense caused serious harm. He also contends that the

dispositions exceed the sentences an adult could receive for two misdemeanor

offenses had the offenses been tried together. He asserts that an adult charged with

two unrelated misdemeanors in a single bill of information could only receive a

six-month sentence. He admits that while the offenses were not charged in a single

petition, they were assigned for adjudication hearing on the same date and were

adjudicated by a single plea. J.R. maintains that the dispositions, if intended to be

the maximum, should be reduced to six months incarceration.

This Court has consistently found that La. C.Cr.P. art. 881.2(A)(2) precludes

a defendant from seeking review of a sentence imposed in conformity with a

constitutionally valid guilty plea agreement.2 See State in Interest of H.N., 15-173

(La. App. 5 Cir. 6/30/15), 171 So.3d 1242, 1249, citing State v. Washington, 05-

211 (La. App. 5 Cir. 10/6/05), 916 So.2d 1171, 1173. In the present case, J.R.

entered admissions to the allegations in the petitions. In the “Waiver of Rights and

Plea of Guilty” form and at the hearing, J.R. also indicated that he understood that

because he had entered admissions, the juvenile court could “sentence” him to the

Office of Juvenile Justice for a period of time of one year, or until his 21st

birthday, whichever was shorter. J.R.’s two six-month consecutive dispositions,

which totaled one year, were set forth in the plea form and at the hearing as

potential dispositions, and he actually received those dispositions. As such, we

find that La. C.Cr.P. art. 881.2 precludes review of J.R.’s dispositions on appeal.

Nevertheless, even considering the imposed dispositions, upon review, we

do not find them to be excessive.

2
The Louisiana Children’s Code does not provide for appellate review of dispositions
entered pursuant to a plea agreement. Therefore, the articles of the Louisiana Code of Criminal
Procedure apply. See La. Ch.C. art. 803 and La. Ch.C. art. 104.

22-KA-339 3

The Louisiana Constitution of 1974, Art. I, § 20 prohibits “cruel, excessive,

or unusual punishment.” State ex rel. T.S., 04-1111 (La. App. 5 Cir. 3/1/05), 900

So.2d 77, 79. In considering dispositional options, the court shall not remove a

child from the custody of his parents unless his welfare or the safety and protection

of the public cannot be adequately safeguarded without such removal. La. Ch.C.

art. 901(A); Id. at 80. Additionally, the court should impose the least restrictive

disposition authorized by Articles 897 through 900 of this Title which the court

finds is consistent with the circumstances of the case, the needs of the child, and

the best interest of society. La. Ch.C. art. 901(B); Id.

On appeal, the record must be reviewed when excessive commitment in a

juvenile proceeding is alleged in order to determine whether the juvenile court

imposed the least restrictive disposition consistent with the circumstances of the

case, the child’s needs, and the best interest of society. La. Ch.C. art. 901(B).

State ex rel. T.S., 900 So.2d at 79. Because of the special nature of the

proceedings, a juvenile court has much discretion, but must balance the needs of

the child with the best interest of society. Id. at 79-80.

J.R. admitted violating La. R.S. 14:95.8 (illegal possession of a handgun by

a juvenile) and La. R.S. 14:34.9 (battery of a dating partner). La. R.S.

14:95.8(B)(1) provides, “On a first conviction, the offender shall be fined not more

than one hundred dollars and imprisoned for not less than ninety days and not more

than six months.” La. R.S. 14:34.9(C) provides, in pertinent part:

On a first conviction, notwithstanding any other provision of law to
the contrary, the offender shall be fined not less than three hundred
dollars nor more than one thousand dollars and shall be imprisoned
for not less than thirty days nor more than six months. At least forty-
eight hours of the sentence imposed shall be served without benefit of
parole, probation, or suspension of sentence.

When two or more convictions arise from the same act or transaction, or

constitute parts of a common scheme or plan, the terms of imprisonment shall be

22-KA-339 4

served concurrently unless the court expressly directs that some or all shall be

served consecutively. La. C.Cr.P. art. 883. Whenever two or more misdemeanors

are joined in accordance with Article 493 in the same indictment or information,

the maximum aggregate penalty that may be imposed for the misdemeanors shall

not exceed imprisonment for more than six months or a fine of more than one

thousand dollars, or both. La. C.Cr.P. art. 493.1.

In the instant case, J.R. admitted to illegally possessing a firearm as a

juvenile and to battery of a dating partner. Although the victim was pregnant at the

time of the incident, the petition only alleged the misdemeanor offense of battery

of a dating partner rather than a felony, which carried a possible three-year

sentence at hard labor. See La. R.S. 14:34.9(K). As such, the plea agreement was

beneficial to J.R. J.R. argues that the maximum aggregate penalty that should have

been imposed was six months under Article 493.1. However, the two six-month

consecutive dispositions are allowed because the incidents occurred on separate

dates and were alleged in separate petitions, even though the juvenile admitted the

allegations of both petitions on the same date. See Article 493.1.

At the disposition hearing, Melissa Riddick, who prepared the dispositional

report in the instant case, testified that J.R. had a high-risk score in violence and

delinquency on his Structured Assessment of Violence Risk in Youth report, that

he did not have any support, that he was not being held accountable, and that he

had no remorse for his actions. Additionally, Ms. Riddick explained that

considering those factors along with his impulsivity, his exposure to domestic

violence, his anger, and his substance abuse, allowing him to remain on probation

in the community would be a setup for failure. Also, Ms. Riddick pointed out that

J.R. was eighteen years old, and therefore, this was his last opportunity for

intervention. She stated that there were significant concerns about J.R.’s ability to

comply with rules of probation should he be released into the community, noting

22-KA-339 5

that he had violated the conditions of his GPS monitor in the past. The record also

shows that J.R. has a lengthy arrest history in St. Charles Parish.

The juvenile judge imposed the maximum term of six months on each

offense and ordered them to run consecutively. She stated, however, that she

would review his case in six months and that if J.R. was successful, there could

possibly be early termination and reintegration into the family home. The juvenile

judge asserted that J.R. would have the potential to work on his issues for twelve

months.

In light of the foregoing, we find that the juvenile court imposed the least

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

the child, and the best interest of society. See La. Ch.C. art. 901(B). Based on the

facts and circumstances of this case, we find that the juvenile court did not abuse

its discretion in imposing two six-month consecutive dispositions. This

assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, J.R. argues that the juvenile court erred in

failing to conduct a competency hearing after appointing a one-member sanity

commission to examine him. He asserts that his behavior in court casts doubt on

his ability to proceed to an adjudication and to assist his counsel. Also, after

ordering an evaluation of J.R., the juvenile court allowed him to enter admissions

to the allegations in both petitions without conducting a competency hearing. He

argues that the delinquency proceedings should have been stayed until a

competency hearing was held and not resumed until he was found to be competent

following a contradictory hearing. J.R. maintains that there was never a finding of

competency and that Dr. Salcedo’s report did not reflect a finding of competency

so as to be determinative of the issue. As such, he argues that the admissions in the

instant case should be set aside.

22-KA-339 6

Chapter 7 in the Children’s Code contains the procedures used to determine

a child’s mental capacity to proceed and are set forth in La. Ch.C. arts. 832-838. A

child’s mental incapacity to proceed may be raised at any time by the child, the

district attorney, or the court, and once it is raised, no further steps in the

delinquency proceeding should occur until counsel is appointed and the child is

found to have the mental capacity to proceed. La. Ch.C. art. 832. The court shall

order a mental examination of the child when it has reasonable grounds to doubt

the mental capacity of the child to proceed. La. Ch.C. art. 833(A). Within seven

days after a mental competency examination is ordered, the court shall appoint a

competency commission to examine and report on the mental condition of the

child, and the competency commission shall consist of at least one and not more

than three physicians or psychologists. La. Ch.C. art. 834(A). The issue of the

mental capacity of the child to proceed shall be determined by the court after a

contradictory hearing. La. Ch. C. art. 836(A). La. Ch.C. art. 837(A) provides the

law regarding the procedure after determination of mental capacity as follows: “If

the court determines that the child has the mental capacity to proceed, the

delinquency proceedings shall be resumed.”

Louisiana Children’s Code article 867 is in Chapter 12 of the Children’s

Code in a section titled, “Preadjudication Motions and Relief.” Article 867

provides the law regarding medical, sensory, psychological, and psychiatric

examinations and states as follows:

A. On its own motion or on the motion of the child or district
attorney, the court may order any child to be examined by a
physician, optometrist, or audiologist. Unless waived by the child,
the examination shall not occur until five days after the clerk of
court notified all parties of the examination order.
B. On motion of the child, the court may order a child concerning
whom a petition has been filed, to be examined by a psychologist
or a psychiatrist.

22-KA-339 7

C. Any examination shall be made and the findings submitted to the
court within thirty days of the date the order is entered. This time
period may be extended by the court for good cause.

D. Copies of any reports of findings submitted to the court shall be
available to counsel for all parties.
On April 19, 2022 (prior to the adjudication hearing which was set for April

27, 2022), a hearing was held on J.R.’s violation of the electronic monitoring

program. The record reflects that at that hearing, Erin Ronquille, a probation

officer, testified about the electronic monitoring. Ms. Ronquille testified that she

was contacted the prior weekend by their “ATD standby employee” who had been

in contact with J.R.’s mother throughout the weekend because of J.R.’s aggressive

behavior in the home. She noted that on Sunday, he left home without permission.

Ms. Ronquille asked for J.R.’s bond to be revoked.

J.R.’s mother testified that her son was not a bad child, “It’s just when you

tell him no, he likes to break things in the home.” She stated that her son was not

going to harm anyone else “in the outside” and that “it’s just with me.” She

testified that she did not want J.R.’s bond revoked and that he could stay in the

home. J.R’s mother noted that he would not calm down during the incident the

prior Friday. She said he did not need to be in jail and that he needed some type of

counseling to find out what is wrong with him.

J.R. testified that the ankle bracelet was dead because the battery was not

charging. He said that he went down the street to get some food because he was

hungry and that he had been inside for two months. The prosecutor told him that

he seemed “awful agitated” that day, and he responded that he was on house arrest

for nothing and that he could not get a job or go anywhere. J.R. denied breaking

things at his house. He said that his mother was not telling the truth.

The juvenile judge stated she had information that at the time of his arrests

in August of 2021 and in March of 2022, two drug screens showed that J.R. was

using marijuana. She noted that the charges came back in August of 2021 for a

22-KA-339 8

handgun charge, that J.R. missed his next court date, and that he was eventually

referred for an informal processing. The juvenile judge stated that he was non-

compliant with that and was later arrested for the dating partner charge, which was

set for adjudication on April 27. She further stated:

… I don’t know why he is violent. I don’t know what sort of
history of mental health issues or treatment he may have needed in the
past, but I do not like to hear the testimony that he cannot handle
when he’s not getting his way. …

Based upon the testimony today, he has violated the
requirements of being out so he’s going to remain in until his trial date
which is the 27th unless there’s any motion to move that.
Afterwards, J.R.’s attorney said that considering these circumstances, he

would like to request “an emergency psychological and psychiatric” if need be.

The juvenile judge replied, “So ordered.” The judge told J.R.’s mother that her son

needed to be able to deal with disappointment. J.R.’s mother responded that she

knew that and told him that. She also stated that she did not want to see her son in

jail, but that she could not control him. The juvenile judge replied:

I know. And there is a counselor in jail and I am ordering per
the minute entry that he be connected with the counselor today and I
am ordering by the request of his attorney a psychological evaluation
and if indicated a psychiatric. This is a rehabilitative system, ma’am,
and we will be offering him services; okay?

J.R.’s mother said she hoped so because he needed therapy and not jail. The

juvenile judge responded that she knew that and that they were going to work on

that. On May 24, 2022, a psychological evaluation by Rafael F. Salcedo, Ph.D.,

which was dated April 22, 2022, was filed into the record.

After reviewing the transcript of the hearing and the pertinent codal articles

set forth above, we do not find that J.R.’s attorney was asking for a competency

evaluation. Rather, J.R.’s attorney was asking for J.R. to be examined by a

psychologist or a psychiatrist under La. Ch.C. art. 867(B), supra, which pertains to

“Preadjudication Motions and Relief,” in order for him to be diagnosed and to

receive counseling for his anger issues. As such, we find that the juvenile court did

22-KA-339 9

not err in failing to conduct a competency hearing. This assignment is likewise

without error.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to the mandate of La.

C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland,

556 So.2d 175 (La. App. 5 Cir. 1990). Although the Louisiana Children’s Code

does not address the scope of appellate review, we believe La. Ch.C. art. 104 and

La. C.Cr.P. art. 920 mandate errors patent reviews in juvenile criminal

proceedings. See State in Interest of T.W., 15-262 (La. App. 5 Cir. 9/23/15), 175

So.3d 504, 513.

Statutory restrictions

J.R. admitted to the allegations of battery of a dating partner in violation of

La R.S. 14:34.9, and a six-month disposition was imposed. However, the juvenile

court failed to order that at least forty-eight hours of the disposition be served

without the benefit of parole, probation, or suspension of sentence as set forth in

the statute. Because the language of the sentencing provision gives the trial judge

discretion in determining the exact length of time that benefits are to be restricted,

we remand this matter and instruct the juvenile court to impose at least forty-eight

hours of the disposition without the benefit of parole, probation, or suspension of

sentence in compliance with La. R.S. 14:34.9. See State v. Wilt, 14-823 (La. App.

5 Cir. 4/29/15), 170 So.3d 317, 327, writ denied, 15-1055 (La. 5/2/16), 206 So.3d

877.

Mandatory fine

The juvenile court failed to impose the mandatory fines on both dispositions.

La. R.S. 14:95.8(B)(1) provides a mandatory fine of “not more than one hundred

dollars.” La. R.S. 14:34.9(C) provides a mandatory fine of “not less than three

hundred dollars nor more than one thousand dollars.”

22-KA-339 10

Although this Court has the authority to correct an illegal sentence at any

time pursuant to La. C.Cr.P. art. 882, the authority to correct an illegally lenient

sentence is permissive rather than mandatory. While this Court has held that

statutes providing for a fine of “not more than” a specified amount do require a

mandatory fine, this Court has also recognized that the matter is not free from

doubt. State v. Kerlec, 06-838 (La. App. 5 Cir. 4/11/07), 957 So.2d 810, 815, writ

denied, 07-1119 (La. 12/7/07), 969 So.2d 626. In the instant case, J.R. is

represented by the Louisiana Appellate Project. Therefore, we decline to exercise

our authority to remand for correction of the illegally lenient dispositions due to

J.R.’s indigent status. See State v. Saulny, 16-734 (La. App. 5 Cir. 5/17/17), 220

So.3d 871, 881, writ denied, 17-1032 (La. 4/16/18), 240 So.3d 923.

Post-conviction relief advisal

The juvenile court failed to advise J.R. of the two-year prescriptive period

for seeking post-conviction relief as mandated by La. C.Cr.P. art. 930.8. If a trial

court fails to advise the juvenile, then the appellate court may correct this error by

informing the juvenile of the applicable prescriptive period for post-conviction

relief. See State in Interest of T.W., 175 So.3d at 513. Thus, by way of its opinion,

we notify the juvenile that no application for post-conviction relief (“APCR”),

including an application for an out-of-time appeal, shall be considered if it is filed

more than two years after the judgment of adjudication and disposition have

become final under the provisions of La. C.Cr.P. arts. 914 or 922.3

CONCLUSION

For the foregoing reasons, J.R.’s adjudications as to illegal possession of a

handgun as a juvenile and battery of a dating partner are affirmed. His disposition

as to illegal possession of a handgun as a juvenile is also affirmed. His disposition

3
In order to file an APCR, the petitioner must be in custody. See La. C.Cr.P. art. 924(1).

22-KA-339 11

as to battery of a dating partner in violation of La R.S. 14:34.9 is vacated, and the

matter is remanded for resentencing in compliance with La R.S. 14:34.9.

ADJUDICATIONS AFFIRMED;
DISPOSITIONS VACATED IN PART;
REMANDED FOR RESENTENCING

22-KA-339 12

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 30, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-339
E-NOTIFIED
JUVENILE COURT (CLERK)
HONORABLE AMANDA L. CALOGERO (DISTRICT JUDGE)
AMANDA L. CALOGERO (APPELLEE) ELIZABETH B. CURREN (APPELLEE) KATHERINE M. FRANKS (APPELLANT)

MAILED
DOUGLAS E. RUSHTON (APPELLEE) HONORABLE PAUL D. CONNICK, JR.
ASSISTANT DISTRICT ATTORNEY (APPELLEE)
JUVENILE COURT DISTRICT ATTORNEY
1546 GRETNA BOULEVARD TWENTY-FOURTH JUDICIAL DISTRICT
HARVEY, LA 70058 200 DERBIGNY STREET
GRETNA, LA 70053