State of Louisiana in the Interest of M.H.

STATE OF LOUISIANA IN THE INTEREST NO. 23-KA-326
OF M.H.
FIFTH CIRCUIT

COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE JEFFERSON PARISH JUVENILE COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 22-JU-195, DIVISION "C"
HONORABLE BARRON C. BURMASTER, JUDGE PRESIDING

December 27, 2023

MARC E. JOHNSON
JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Stephen J. Windhorst

AFFIRMED WITH INSTRUCTIONS TO
AMEND JUDGMENT OF DISPOSITION
MEJ
SMC
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLANT,
M.H.
C. Gary Wainwright

JOHNSON, J.

Appellant, M.H.1, appeals Jefferson Parish Juvenile Court’s January 13,

2023 judgment finding that La. R.S. 14:37.2, Aggravated Assault upon a Peace

Officer, was not unconstitutionally void for vagueness. For the following reasons,

we affirm the juvenile court’s judgment.

FACTS AND PROCEDURAL HISTORY

On July 5, 2022, a delinquency petition was filed against M.H. The petition

listed four offenses: count one - La. R. S. 14:108, Resisting an Officer; count two -

La. R. S. 14:95.8, Illegal Possession of a Handgun by a Juvenile; count three - La.

R. S. 14:37.2, Aggravated Assault upon a Peace Officer; and count four - La. R. S.

40:966(A), Possession of Marijuana with the Intent to Distribute.2 Count four, for

which there had initially been a finding of no probable cause, was nolle prossed on

October 5, 2022. On November 16, 2022, MH entered admissions to counts one

and two and was placed on probation for those charges. That same day, MH filed

a Motion to Dismiss – Due Process Violation – Invalid Statute.

MH’s motion to dismiss alleged that the void-for-vagueness doctrine

rendered the alleged offense of Aggravated Assault upon a Peace Officer, in

violation of La. R.S. 14:37.2, unconstitutional. The Attorney General was properly

notified of the constitutional challenge and charged the Jefferson Parish District

Attorney’s Office with the responsibility of defending the constitutionality of the

statute. The juvenile court heard the motion on January 13, 2023.

At the end of the hearing on the constitutional challenge, the juvenile court

denied M.H.’s motion. The court stated:

It is a simple assault. That’s as defined in 36, it’s a simple
assault; but then, they have an aggravating circumstance added on to
it. It was a simple assault. Now it’s got a simple assault upon a police
1
To maintain the confidentiality of the proceedings, as required by La. Ch.C. art. 412, the initials for the
juvenile will be used. See State in Interest of T.L., 17-579 (La. App. 5 Cir. 2/21/18); 240 So.3d 310, 315.
2
In the petition, annotations identify the four counts as “*”, “A”, “B”, and “C”, respectively; the counts
are referred to as such in subsequent minute entries.

23-KA-326 1

officer, a peace officer. So that’s an aggravating circumstance that
rises it, makes it rise to a felony level.

I do think there may be some problems with the construction
when you get into the actual sentencing. Maybe it leads to an excessive
sentence. I don’t think the legislature will be prohibited from saying
that it’s a felony sentence to commit a simple assault on a police officer
is a felony offense. I don’t there’s [sic] anywhere that would prohibit
that from happening.

And I think that’s what happened here. Maybe they wanted to
put dangerous instrument in there, but on it’s [sic] face, I read it, it’s
unambiguous, it’s not vague, it’s a standalone charge. That being said, I
do believe there are some things that could be corrected in it. I do
believe it would be right if somebody’s convicted of this and given a
felony sentence, maybe it becomes an excessive sentence, maybe it
becomes something under article -- you know, Constitutional
Amendment Article 8 challenge. But I don’t think under this particular
argument, it’s vague and ambiguous. I do think it’s clear what it says.

M.H. timely filed a Notice of Intent to take Supervisory Writs. On March

16, 2023, the State and juvenile court allowed M.H. to enter an admission to count

three pursuant to State v. Crosby, 338 So.2d 584 (La. 1976). M.H. received a one-

year suspended sentence in the custody of the Office of Juvenile Justice (OJJ), and

was placed on active probation for eighteen months, to run concurrently with the

dispositions for counts one and two. M.H. subsequently filed a Notice of Intent to

Perfect Crosby Appeal, which the juvenile court granted on March 29, 2023.

ASSIGNMENTS OF ERROR

MH urges that the trial court erred when it did not find that the questioned

statute was unconstitutionally void for vagueness.

M.H. avers that La. R.S. 14:37.2 incorrectly utilizes legal terms of art, and a

simple assault cannot be converted to an “aggravated assault” by virtue of the

victim’s occupation. He contends that an aggravated assault with a dangerous

weapon is not an element required to be proven beyond a reasonable doubt under

the statute, but the statute is so vague that the prosecutor believed that the use of a

dangerous weapon was a required element of the offense. The juvenile asserts that

23-KA-326 2

he did not attempt to commit a battery or intentionally place the officer in

reasonable apprehension of receiving a battery. He argues that the statute is

unconstitutional and should be declared void.

M.H. further argues that “while there’s nothing unclear about the statute, it’s

absolutely clear that the statute is defective.” He maintains that the statute provides

for a felony punishment but contains elements of a misdemeanor. He asserts that

the offense cannot be distinguished from an attempted simple battery of a police

officer, which is a misdemeanor. M.H. avers that the State has to prove a simple

assault occurred and not a felony assault, or that there was a weapon. He reiterates

that the elements of this offense are the same as a misdemeanor. M.H. argues that

the statute is void for vagueness because an offense would constitute both a felony

and a misdemeanor at the same time.

The State argues that the language of La. R.S. 14:37.2 clearly provides that

any assault committed upon a peace officer who is acting in the course and scope

of his duties constitutes the crime of aggravated assault upon a peace officer. The

State contends that the statute is not void for vagueness but acknowledges evidence

of legislative intent, which suggests that the word “firearm” was removed from the

statute in order to expand the prohibition to any “dangerous weapon”. However, it

asserts that legislative intent is not significant here because the statute is clear and

unambiguous on its face. The State explains that the juvenile committed an assault

with a dangerous weapon, and therefore, his concern is merely academic. Further,

it explains that the Louisiana Supreme Court has on numerous occasions discussed

the concept of legislative intent juxtaposed against statutory interpretation. The

Court has repeatedly held that the interpretation of a statute begins with the

language of the statute itself. When a law is clear and unambiguous and its

application does not lead to absurd consequences, the law shall be applied as

written and no further interpretation may be made in search of the intent of the

23-KA-326 3

Legislature (citing State v. Skipper, 04-2137 (La. 6/29/05), 906 So.2d 399, 403;

State v. Gutweiler, 06-2596 (La. 4/8/08), 979 So.2d 469, 476; State in the Interest

of K.L.A., 14-1410 (La. 6/30/15), 172 So.3d 601, 605; and State v. Griffin, 14-1214

(La. 10/14/15), 180 So.3d 1262, 1267).

LAW AND DISCUSSION

The standard of review in determining the constitutionality of a statute, a

question of law, is de novo. State v. Lee, 22-1827 (La. 9/8/23), 2023 WL 5813836.

A de novo review means the court will decide the matter after considering the

statute at issue, the relevant law, and the record without deference to the legal

conclusions of the courts below. Id. A statute is presumed constitutional, and the

burden of proving a claim of unconstitutionality rests upon the party attacking the

statute. State v. Wise, 14-378 (La. App. 5 Cir. 10/15/14), 182 So.3d 63, 78, writ

denied, 14-2406 (La. 9/18/15), 178 So.3d 143 (citing State v. Interiano, 03-1760

(La. 2/13/04), 868 So.2d 9, 13).

In determining the constitutionality of a statute, the basic rules of statutory

construction must be followed. A statute should be upheld whenever possible. In

construing statutes, courts must strive to give an interpretation “that will give them

effectiveness and purpose, rather than one which makes them meaningless.” State

v. McKey, 16-270 (La. App. 5 Cir. 5/24/16), 2016 WL 4394074 (unpublished

opinion), writ denied, 16-1195 (La. 10/10/16), 207 So.3d 405 (citing State v.

Cunningham, 04-2200 (La. 6/13/05), 903 So.2d 1110, 1116. “It is well established

that the task of statutory construction begins with an examination of the language

of the statute itself...When the law is clear and unambiguous and its application

does not lead to absurd consequences, the law shall be applied as written, and no

further interpretation may be made in search of the intent of the legislature.” State

v. Lopez, 18-158 (La. App. 5 Cir. 5/22/18), 2018 WL 3490858 (unpublished

opinion) (quoting State v. Bedford, 01-2298 (La. 1/28/03), 838 So.2d 758, 760).

23-KA-326 4

Headings to sections, source notes, and cross references are given for the

purpose of convenient reference and do not constitute part of the law. La. R.S.

1:13.

In testing the constitutionality of a statute, the statute “shall be given a

genuine construction, according to the fair import of their words, taken in their

usual sense, in connection with the context, and with reference to the purpose of

the provision.” La. R.S. 14:3. A criminal statute requires a genuine construction

according to the plain meaning of its language because “courts are not empowered

to extend the terms of a criminal provision to cover conduct which is not included

within the definition of the crime.” Lopez, supra. Where the words of a statute are

clear and free from ambiguity, they are not to be ignored under the pretext of

pursuing their spirit. State v. Shaw, 06-2467 (La. 11/27/07), 969 So.2d 1233, 1242

(citing La. R.S. 1:4).

The “void-for-vagueness” doctrine provides that a criminal statute must

meet two requirements to satisfy due process: (1) adequate notice to individuals

that certain contemplated conduct is proscribed; and (2) adequate standards for

those charged with determining the guilt or innocence of an accused. State v.

Golston, 10-2804 (La. 7/1/11), 67 So.3d 452, 463. The purpose of the doctrine is to

ensure that a criminal statute does not contain a standard so vague that the public is

uncertain as to the proscribed conduct and the factfinder is unfettered by any

legally fixed standards as to what is prohibited by the statute. Id. A statute is

unconstitutionally vague if an ordinary person of reasonable intelligence is not

capable of discerning its meaning and conforming his conduct to the dictates of the

statute. State v. Byrd, 96-2302 (La. 3/13/98), 708 So.2d 401, 408, cert. denied sub

nom. Peltier v. Louisiana, 525 U.S. 876, 119 S.Ct. 179, 142 L.Ed.2d 146 (1998).

Broad language is not in itself vague, particularly where it is clear that the

23-KA-326 5

legislature intended to make criminal all acts of a certain kind. State v. Hair, 00-

2694 (La. 5/15/01), 784 So.2d 1269, 1274.

A party contesting the constitutionality of a statute has a three-tiered burden:

1) the presentation must be made in the trial court; 2) the claim of

unconstitutionality must be specially pleaded; and 3) the grounds for the claim

must be particularized. Wise, 182 So.2d at 78. The purpose of these procedural

rules is to afford interested parties sufficient time to brief and prepare arguments

defending the constitutionality of the challenged statute. See State v. Schoening,

00-903 (La. 10/17/00), 770 So.2d 762, 765. The opportunity to fully brief and

argue the constitutional issues provides the trial court with thoughtful and complete

arguments relating to the issue of constitutionality and furnishes reviewing courts

with an adequate record upon which to consider the constitutionality of the statute.

Id. at 764.

By La. Acts 2016, No. 225, §1, La. R.S. 14:37.2 was amended from the

offense of “Aggravated assault upon a peace officer with a firearm” and reenacted

as “Aggravated assault upon a peace officer,” removing the element that the

offense be committed with a firearm and deleting the definition of “firearm.” State

in interest of J.H., 22-324 (La. App. 4 Cir. 8/9/22), 2022 WL 3210100, n.8

(unpublished opinion). La. R.S. 14:37.2 now provides as follows:

§ 37.2. Aggravated assault upon a peace officer

A. Aggravated assault upon a peace officer is an assault committed
upon a peace officer who is acting in the course and scope of his
duties.

B. Whoever commits an aggravated assault upon a peace officer
shall be fined not more than five thousand dollars, or imprisoned
for not less than one year nor more than ten years, with or without
hard labor, or both.

“Assault” is defined in La. R.S. 14:36 as “an attempt to commit a battery, or

the intentional placing of another in reasonable apprehension of receiving a

23-KA-326 6

battery.” La. R.S. 14:37.2 provides that “aggravated assault” is any “attempt to

commit a battery” upon “a peace officer who is acting in the course and scope of

his duties”, or the “intentional placing” of that peace officer in “reasonable

apprehension of receiving a battery”. Because the language of the statute is clear

and unambiguous on its face, we will not extend our analysis to include

speculation regarding legislative intent.

We also pretermit further consideration of the validity of La. R.S. 14:37.2, as

no other constitutional grounds to challenge the statute were “specified, briefed, or

argued” in the trial court. See State v. Bertrand, 08-2215 (La. 3/17/09); 6 So.3d

738, 741 (overruled on other grounds); Wise, supra. “It is well-settled that a

constitutional challenge may not be considered by an appellate court unless it was

properly pleaded and raised in the trial court below.” Id. at 739.

ERRORS PATENT

The record was reviewed for errors patent. La. C.Cr.P. art. 920; State v.

Oliveaux, 312 So.2d 337 (La. 1975); State v. Weiland, 556 So.2d 175 (La. App. 5th

Cir. 1990).

Written Judgment of Disposition

Although the record contains a minute entry signed by the judge, the entry

does not contain all of the specific information that La. Ch.C. art. 903(D) requires

to be considered a written judgment of disposition. The judgment must include the

maximum duration of the disposition and contain an order of expungement to be

made executory at the end of the disposition in accordance with La. Ch.C. art.

903(B)(6) and (7). See State in the interest of C.L., 53,980 (La. App. 2 Cir.

8/11/21), 326 So.3d 1283, writ denied, 21-1340 (La. 11/23/21), 328 So.3d 77, State

in interest of D.R., 50,594 (La. App. 2 Cir. 2/24/16), 188 So.3d 1116; and In re

J.D.K., Jr., 14-1786 (La. App. 1 Cir. 4/24/15), 2015 WL 1893303 (unpublished

opinion).

23-KA-326 7

Credit for Time Served

Review of the record reveals that M.H. did not receive credit for any time

served in secure detention prior to the imposition of the disposition as required by

La. Ch.C. art. 898(A). Article 898(A) provides in pertinent part, “The court shall

give a child credit for time spent in secure detention prior to the imposition of

disposition.” M.H. is entitled to credit for time served. See State 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; State v. C.K., 05-475 (La. App. 5 Cir. 1/17/06), 922

So.2d 616, 621.

Post-Conviction Relief Notification

The juvenile court failed to advise the juvenile of the two-year prescriptive

period for seeking post-conviction relief as mandated by La. C.Cr.P. art. 930.8. By

way of this opinion, M.H. is advised 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. See State in

interest of T.W., 15-262 (La. App. 5 Cir. 9/23/15), 175 So.3d 504, 513; State in

Interest of A.N., 18-1571 (La. 10/22/19); 286 So.3d 969, 975 (stating the

legislature has therefore directed through La. Ch.C. art. 803 that the courts impute

C.Cr.P. art. 924, et seq., to adjudication proceedings to provide such relief for

juveniles).

DECREE

Based on the foregoing, the judgment of the juvenile court finding that La.

R.S. 14.37.2 is not unconstitutionally vague is affirmed. The juvenile court is

ordered to provide M.H. with a written judgment of disposition, or a signed

(amended or additional) minute entry, that complies with the provisions of La.

Ch.C. art. 903(B)(6) and (7), which specifically 1) states the maximum duration of

23-KA-326 8

the disposition (until he obtains the age of 21, according to the March 16, 2023

transcript); 2) includes an order or expungement to be made executory at the end of

the disposition unless an objection is filed pursuant to La. Ch.C. art. 926 at the end

of the disposition; and 3) advises M.H. of the following: a) 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; and b) should his probation be revoked and he is ordered to serve his

suspended sentence then, pursuant to La. Ch.C. art. 898(A), the juvenile court shall

give M.H. “credit for time spent in secure detention prior to the imposition of

disposition”.

AFFIRMED WITH INSTRUCTIONS TO
AMEND JUDGMENT OF DISPOSITION

23-KA-326 9

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL 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
www.fifthcircuit.org

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
DECEMBER 27, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-326
E-NOTIFIED
JUVENILE COURT (CLERK)
HON. BARRON C. BURMASTER (DISTRICT JUDGE)
DARREN A. ALLEMAND (APPELLEE) DOUGLAS E. RUSHTON, JR. (APPELLEE) THOMAS J. BUTLER (APPELLEE)
C. GARY WAINWRIGHT (APPELLANT) GRANT L. WILLIS (APPELLEE)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053