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In re State

Sep 21, 2015
2015 KJ 0611 (La. Ct. App. Sep. 21, 2015)


2015 KJ 0611



Warren Montgomery District Attorney Covington, LA and Kathryn Landry Special Appeals Counsel Baton Rouge, LA Counsel for Appellee State of Louisiana Katherine M. Franks Louisiana Appellate Project Abita Springs, LA Counsel for Appellant T.O.T.

NOT DESIGNATED FOR PUBLICATION On Appeal from the Twenty-Second Judicial District Court In and for the Parish of Washington State of Louisiana
No. JD-13-69
The Honorable William J. Burris, Judge Presiding Warren Montgomery
District Attorney
Covington, LA
Kathryn Landry
Special Appeals Counsel
Baton Rouge, LA
Counsel for Appellee
State of Louisiana
Katherine M. Franks
Louisiana Appellate Project
Abita Springs, LA
Counsel for Appellant

The juvenile, T.O.T., was charged by juvenile petition with aggravated rape of a person under the age of thirteen years, a violation of La. R.S. 14:42(A)(4). The juvenile denied the allegation of the petition and filed a motion to suppress confessions/inculpatory statements. Following a hearing on the matter, the motion was denied. Following an adjudication hearing, the juvenile was adjudicated a delinquent for the charged offense. The judge imposed disposition of confinement in secure placement until the juvenile attains the age of twenty-one years without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence. The juvenile now appeals, designating three assignments of error. For the reasons that follow, we affirm the adjudication and disposition.

The initials of minor children will be used throughout this opinion to ensure their confidentiality. See Uniform Rules - Courts of Appeal, Rule 5-2.

T.O.T. pled not guilty and, later, not guilty by reason of insanity.


On September 9, 2013, A.R., a twelve-year-old in the seventh grade, was in school at Franklinton Junior High School. In between classes, A.R. went to the boy's bathroom. T.O.T., a fourteen-year-old also in the seventh grade, was the only other person in the bathroom. A.R. and T.O.T. knew each other. A.R. walked in a stall. T.O.T. followed A.R. inside the stall and locked the door. T.O.T. pulled down A.R's pants and underwear. T.O.T. then pulled down his own pants and gym shorts. A.R. tried to fight off T.O.T., but was overpowered. T.O.T. turned A.R. around, bent A.R. over, and anally raped him. When T.O.T. was done, he told A.R. not to tell anyone and left the bathroom. A.R., distraught and crying, found the custodian and told him what had occurred. The custodian brought A.R. to the office of the school principal, Pauline Bankston. Bankston called to her office the school counselor, Varnado-Seal. Bankston testified at the adjudication hearing that she asked A.R. what happened, and A.R. told her that T.O.T. got him in a stall, locked it, "and pulled his pants down and had put his thing in him." T.O.T. was removed from class. Bankston asked T.O.T. what occurred in the bathroom, and T.O.T. confirmed A.R.'s account. Bankston testified that T.O.T. told her that he "put his thing in" A.R. The police and the parents of the boys were called to the school. A.R. was taken to Children's Hospital in New Orleans and underwent a sexual-assault-kit examination.

Corporal James Pugh, with the Franklinton Police Department, T.O.T., and T.O.T.'s father went to the police station, where T.O.T. provided an oral and written statement confirming what he had done to A.R. in the bathroom at school. T.O.T.'s cheek was swabbed for DNA evidence. Marci Herndon, a forensic DNA expert, testified at the adjudication hearing that she tested A.R.'s underwear and A.R.'s rectal swab from the sexual assault kit. She stated that semen was present on both the underwear and rectal swab. She testified regarding the rectal swab that, T.O.T. could not be excluded as the major contributor on both the epithelial fraction and the sperm fraction. Regarding A.R.'s underwear, T.O.T. could not be excluded as the major contributor on the epithelial fraction; and T.O.T.'s DNA sample was consistent with the sperm fraction on the underwear. Herndon explained this meant that the sperm found on A.R.'s underwear belonged to T.O.T., and the probability of finding the same DNA profile if the DNA had come from someone other than T.O.T. was about one in 19.8 quintillion.


In his first assignment of error, T.O.T. argues that the trial court erred in denying his motion to suppress confessions/inculpatory statements. Specifically, he contends that, regarding his statement in the principal's office, he was not given his Miranda warnings by school officials who were "state actors." T.O.T. further contends that his statement at the police station to Corporal Pugh was tainted by the impermissible statement in the principal's office. T.O.T. also argues that neither of his statements was voluntary because he was mentally challenged.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Testimony and evidence introduced at the hearing on the motion to suppress confessions/inculpatory statements established that a distraught A.R. was brought by the school's substitute custodian to the principal, Bankston. Bankston took A.R. to her office and called the school counselor, Tonja Varnado-Seal, to also come to her office. When Varnado-Seal arrived, Bankston asked A.R. what had happened. Bankston testified that A.R. said he was in the bathroom upstairs, between classes, when T.O.T. pushed him into a bathroom stall, and made him (A.R.) pull his pants down. T.O.T. then "put his thing in him."

Bankston then removed A.R. to another room. She removed T.O.T. from his class and brought him to the principal's office. Bankston told T.O.T. that A.R. had told her what happened in the bathroom and that she wanted his (T.O.T.'s) side. Bankston testified that T.O.T. confirmed to her and Varnado-Seal what A.R. had told them, namely that he and A.R. were in the bathroom and T.O.T. "put [A.R.] in the stall and pulled his pants down and the same thing that's what he said."

Corporal Pugh testified at the motion to suppress hearing that he was called to Franklinton Junior High School regarding a sex assault between two students. Bankston and Francis Varnado, a school board employee who had been called in, informed Corporal Pugh about what had occurred. Corporal Pugh did not question T.O.T. about the incident at this time. The parents of both boys had also been called in by the school. When T.O.T.'s father arrived, Corporal Pugh took him and T.O.T. to the police department for questioning. Corporal Pugh read from a rights form the Miranda warnings to T.O.T. and his father. The officer asked both of them if they understood these rights and both replied in the affirmative. Corporal Pugh testified that he specifically told T.O.T. that if he did not want to say anything, he did not have to. T.O.T., T.O.T.'s father, and Corporal Pugh all signed the form. Corporal Pugh then gave T.O.T. a "Voluntary Statement" form. Corporal Pugh read the top of the form to T.O.T. and his father, which stated in pertinent part:

Varnado and Varnado-Seal are different people. Varnado did not testify at the motion to suppress hearing, but she did testify at the adjudication hearing.

[Corporal Pugh] has duly warned me that I have the following rights: that I have the right to remain silent and not make any statement at all; that any statement I make may be used against me at my trial; that any statement I make may be used as evidence against me in court; that I have the right to have a lawyer present to advise me prior to and during any questioning; that if I am unable to employ a lawyer, I have the right to have a lawyer appointed to advise me prior to and during any questioning and that I have the right to terminate the interview at any time.
Prior to and during the making of the statement, I have and do hereby knowingly, intelligently, and voluntarily waive the above explained rights and I do make the following voluntary statement to the aforementioned person of my own free will and without any promises or offers of leniency or favors, and without compulsion or persuasion by any person or person whomsoever.

T.O.T. wrote the following statement in his own handwriting on the form:

Me and [A.R.] with [sic] in the Bathroom we had use the Bathroom wash hand [sic]. In [sic] I told him to put his book sack down in go in the stall. In I had said let me see your thing. He said ok than [sic] I said pull down your pants he pull down his clothes in I put my thing in him. I said are we st[i]ll friends don't tell nobody

T.O.T. sometimes uses "in" for "and" throughout his statement.

Following this, Corporal Pugh then questioned T.O.T., in the presence of his father, about the incident.

The trial court denied the motion to suppress without reasons. When a court denies a motion to suppress, factual and credibility determinations should not be reversed in the absence of a clear abuse of the court's discretion, i.e., unless such ruling is not supported by the evidence. See State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 280-81. However, a court's legal findings are subject to a de novo standard of review. See State v. Hunt, 2009-1589 (La. 12/1/09), 25 So.3d 746, 751.

It is well-settled that the ruling in Miranda v. Arizona, 384 U.S. at 456, 86 S.Ct. at 1618, protects an individual's Fifth Amendment privilege during incommunicado interrogation in a police-controlled atmosphere. In Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, the Supreme Court defined "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Thus, before a confession or inculpatory statement made during a custodial interrogation may be introduced into evidence, the State must prove beyond a reasonable doubt that the defendant was first advised of his Miranda rights, that he voluntarily and intelligently waived those rights, and that the statement was made freely and voluntarily and not under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. See La. Code Crim. P. art. 703(D); La. R.S. 15:451. Hunt, 25 So.3d at 754. See State v. Patterson, 572 So.2d 1144, 1150 (La. App. 1st Cir. 1990), writ denied, 577 So.2d 11 (La. 1991).

Since the general admissibility of a confession is a question for the trial court, its conclusions on the credibility and weight of the testimony are accorded great weight and will not be overturned unless they are not supported by the evidence. See Patterson, 572 So.2d at 1150. There is no absolute requirement that an attorney or guardian must be present with a juvenile suspect at the time he makes a statement. Instead, a totality of the circumstances standard is used as the basis for determining the admissibility of juvenile confessions. See State v. Fernandez, 96-2719 (La. 4/14/98), 712 So.2d 485, 486-90; State v. Harper, 2007-0299 (La. App. 1st Cir. 9/5/07), 970 So.2d 592, 604, writ denied, 2007-1921 (La. 2/15/08), 976 So.2d 173. Testimony of the interviewing police officer alone may be sufficient to prove a defendant's statements were freely and voluntarily given. State v. Maten, 2004-1718 (La. App. 1st Cir. 3/24/05), 899 So.2d 711, 721, writ denied, 2005-1570 (La. 1/27/06), 922 So.2d 544. In determining whether the ruling on the motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Chopin, 372 So.2d 1222, 1223 n.2 (La. 1979).

T.O.T. asserts in brief that he was in "custody" when he was brought to the principal's office, and that the school personnel to whom T.O.T. disclosed his attack on A.R. were state actors, and as such, were required to Mirandize T.O.T. before questioning him. These assertions are untenable.

As a general rule, it is left to the trial court to determine whether a person conducting an interrogation is acting as an agent of law enforcement. State v. Bernard, 2009-1178 (La. 3/16/10), 31 So.3d 1025, 1035. The school personnel in the principal's office at the time T.O.T. admitted to sexually abusing A.R. were not, despite T.O.T.'s contention, acting as agents of law enforcement. Further, T.O.T. had not been arrested, but was merely brought to the principal's office to confirm or deny the incident as described by A.R. As the principal, Bankston clearly had the authority, without needing arrest power, to bring students to her office and converse with them over potentially severe disciplinary matters. As Bankston pointed out at the motion to suppress hearing:

I was trying to verify that something had happened, because sometimes kids come in and they say things and we have to first verify. Junior high especially, they come in and we have to verify that
things happened. And that's what I was trying to verify, if it actually happened or if, you know, it was something else.
Accordingly, T.O.T. was not in custody while he was in the principal's office. See State in Interest of Feazell, 360 So.2d 907 (La. App. 3rd Cir. 1978).

According to her testimony at the motion to suppress hearing, Bankston did not coerce, threaten, or promise T.O.T. anything. She did not Mirandize T.O.T. before asking him what happened; she was not employed by law enforcement, and the police did not call her and ask her to question T.O.T. Bankston did not call the police until after she spoke to T.O.T. Similarly, neither Varnado-Seal, the school counselor, nor Varnado, was acting as an agent for law enforcement. Bankston called Varnado-Seal into her office and asked her to be present while she spoke with T.O.T. After T.O.T. told Bankston what happened, Bankston called Varnado to come to the school. Varnado, supervisor of child welfare and attendance, testified at the adjudication hearing that any time there is a discipline situation that is major, she is called to the school to determine whether an expulsion hearing is needed. Varnado went to Bankston's office and T.O.T. repeated his narrative of the incident to Varnado. Varnado-Seal was also in the office at this time.

In State in Interest of A.J., 2014-0595 (La. App. 4th Cir. 10/1/14), 151 So.3d 659, 663, 666-68, the fourth circuit found that Edward Lewis, the Dean of Students at Medhard H. Nelson Elementary School, was not acting as an agent of the State when he questioned A.J. about bringing a gun on the school's campus. The fourth circuit found:

Mr. Lewis is not an agent for law enforcement. Nothing in the record indicates that Mr. Lewis questioned A.J. while in the presence of law enforcement, nor was there any indication that law enforcement was conducting an investigation at the time Mr. Lewis spoke with A.J. Additionally, there is no evidence questioning A.J. was a team effort between the law enforcement, the prosecutors, and Mr. Lewis. Rather, the record demonstrates Mr. Lewis was acting in his role as
Dean of Students to carry out school discipline and safety, not acquiring evidence for a criminal prosecution.
A.J., 151 So.3d at 667-68.

Similarly, when Bankston asked T.O.T. to tell his side of the story, T.O.T. was not being questioned by a law enforcement officer and had not been taken into custody, detained, or deprived of his freedom of action, other than as appropriate considering his status as a student at school. Accordingly, the requirements of Miranda did not apply. See State v. Barrett, 95-2613 (La. App. 1st Cir. 11/8/96), 683 So.2d 331, 339. See also Bernard, 31 So.3d at 1035 (where an investigator for the child protection office of the Louisiana Office of Community Services, who interviewed the defendant in jail, was found not to be an agent of the State because she did not work for the police department, had no authority to arrest, and the police did not ask her to interview the defendant).

T.O.T. further asserts in brief that his statement given at school and his similar statement given at the police department were not voluntarily made because he was mentally challenged and had failed two grades. Particularly, with respect to the statement made at the police department, T.O.T. contends the waiver of his constitutional rights was not knowing and voluntary because he was mentally challenged.

Louisiana Children's Code article 881.1 provides:

A. A confession made by an accused child without a knowing and voluntary waiver shall not be admissible unless the [S]tate proves beyond a reasonable doubt that it was freely and voluntarily given and was not made under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises.

B. In making this determination, the court shall consider all of the following:
(1) The age of the child.
(2) The education of the child.
(3) The knowledge of the child as to both the substance of the charge, if any has been filed, and the nature of his rights to consult with an attorney and to remain silent.
(4) Whether the child is held incommunicado or allowed to consult with relatives, friends, or an attorney.
(5) Whether the child was interrogated before or after formal charges had been filed.
(6) The methods used in the interrogation.
(7) The length of the interrogation.
(8) Whether or not the child refused to voluntarily give statements on prior occasions.
(9) Whether the child has repudiated an extra-judicial statement at a later date.

The State may rely on the presumption of sanity provided in La. R.S. 15:432, leaving to the defendant the initial burden of proving the existence of a mental abnormality, which under the circumstances, may have destroyed the voluntary nature of his confession. State v. Waymire, 504 So.2d 953, 958 (La. App. 1st Cir. 1987). Because a defendant is presumed competent, he has the burden of proving a mental defect such that he was unable to understand his Miranda rights, and therefore, incompetent to waive them. State v. Ondek, 584 So.2d 282, 292-93 (La. App. 1st Cir.), writ denied, 586 So.2d 539 (La. 1991). See State v. Stewart, 93-0708 (La. App. 1st Cir. 3/11/94), 633 So.2d 925, 931, writ denied, 94-0860 (La. 9/16/94), 642 So.2d 189. In the absence of such a showing, the State retains the ultimate burden of proving beyond a reasonable doubt that the confession was voluntary. Green, 655 So.2d 280-81.

The Louisiana Supreme Court has recognized that a diminished intellectual capacity does not of itself vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession. See State v. Tart, 93-0772 (La. 2/9/96), 672 So.2d 116, 126, cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996); State v. Benoit, 440 So.2d 129, 131 (La. 1983). The critical factors are whether the defendant was able to understand the rights explained to him and voluntarily gave the statement. Tart, 672 So.2d at 126. Once the trial judge has determined that the State has met its burden of proof, his decision is entitled to great weight on review. State v. Lefevre, 419 So.2d 862, 865 (La. 1982). See Patterson, 572 So.2d at 1150.

At the motion to suppress hearing, Dr. John Thompson, an expert in the field of adolescent psychiatry, testified that his first interview of T.O.T. led him to believe T.O.T. might be "on the borderline" between borderline intellectual functions and mild mental retardation. T.O.T., a fourteen-year-old in regular classes in the seventh grade, had failed the second and fourth grades, but he could read and write. At that time, Dr. Thompson felt T.O.T. was not competent to stand trial. Several months later, Dr. Thompson interviewed T.O.T. again and found there had been a restoration of competency and that T.O.T. had improved in his capacity to understand the proceedings. Dr. Thompson found T.O.T. sane at the time of the offense and competent to stand trial. Dr. Thompson also testified that he thought T.O.T. was capable of understanding his Miranda rights. He cautioned, however, that he did not do an evaluation for T.O.T.'s capacity to understand at the time that he was writing his statement that he was waiving his rights. (R. pp. 171-72).

Dr. Raphael Salcedo, a forensic psychologist, testified at the motion to suppress hearing that when he first interviewed T.O.T. in September of 2013, he did not think he was mentally retarded "from the get-go." Mental retardation is an IQ of 69 and below, according to Dr. Salcedo. Dr. Salcedo did, however, find T.O.T. was not competent to proceed to trial. When he interviewed T.O.T. again in June of 2014, Dr. Salcedo found T.O.T. competent to proceed, ruled out mild mental retardation, and found that T.O.T. had "borderline intellectual functioning." Dr. Salcedo testified that he noticed a "[g]reat improvement" the second time he saw T.O.T., and that T.O.T. met the Bennett criteria. (R. p. 186). Dr. Salcedo also indicated that he went over the Miranda rights with T.O.T., and he felt that T.O.T. understood his rights.

State v. Bennett, 345 So.2d 1129, 1138 (La. 1977). --------

As noted, testimony at the motion to suppress hearing revealed that Corporal Pugh went over T.O.T.'s Miranda rights with him and his father, and they both indicated they understood these rights. Corporal Pugh indicated he did not coerce or threaten T.O.T. in any way and that T.O.T. did not appear to be under any type of duress when he spoke to him. When asked if he ever threatened or coerced T.O.T.'s father, Corporal Pugh responded that he knew T.O.T.'s father quite well "and we would never threaten him."

At the adjudication hearing, Corporal Pugh reiterated that he asked both T.O.T. and his father if they understood T.O.T.'s rights and they both indicated they did. At no time did either of them indicate they did not understand his rights. After T.O.T. wrote his voluntary statement and signed it, Corporal Pugh questioned T.O.T. about what had occurred. Corporal Pugh testified as follows:

He told me that he was in the boy's bathroom. He looked over the stall and saw [A.R.] in there. . . . He saw [A.R.] in the stall. He entered the stall, told him show me your thing. [A.R.] did. And then [T.O.T.] stated to me that he pulled [A.R.]'s pants down and inserted his penis inside [A.R.], had sex for a few minutes, then he stopped, asked [A.R.] are we still friends, and then said not to tell anybody.

We see no reason to disturb the trial court's ruling. Despite T.O.T.'s contention, there is nothing in the record before us to suggest that he did not understand his Miranda warnings and that he did not freely and voluntary waive his right to remain silent. Corporal Pugh made clear in his testimony that he read each of T.O.T.'s rights to him and his father, that they appeared to understand his rights, and that they both stated that they understood his rights. T.O.T. could read and write and form intelligent sentences, as indicated by his written confession. Despite his apparent diminished intellectual capacity, the State proved T.O.T.'s confession was knowingly and intelligently made. The decision on the validity of a waiver is ultimately for the court. There is no controlling psychiatric principle. Ondek, 584 So.2d at 293. See State v. Coleman, 395 So.2d 704, 706-09 (La. 1981) (our supreme court concluded the trial court was correct in finding the defendant knowingly waived his right against self-incrimination despite an expert on the Sanity Commission admitting that the defendant could understand the warnings, but questioning whether he could appreciate the serious consequences of waiving his rights); Stewart, 633 So.2d at 931-33 (this court affirmed the trial court's denial of a motion to suppress the confession of the defendant who was mildly retarded with an IQ of 63). In State v. Holmes, 2006-2988 (La. 12/2/08), 5 So.3d 42, 72-73, cert. denied, 558 U.S. 932, 130 S.Ct. 70, 175 L.Ed.2d 233 (2009), our supreme court stated:

Furthermore, despite the defendant's appellate claim that her low intelligence rendered her [waiver] of rights and subsequent statements involuntary, well established jurisprudence from this state shows otherwise. See e.g., State v. Green, 94-0887 (La. 5/22/95), 655 So.2d 272, 278-84 (La. 1995) (mildly retarded defendant's waiver of rights was knowing and intelligent, even though psychologist testified defendant was unable to comprehend his rights; psychologist also testified defendant was educable and could be made to understand rights, police officers testified defendant understood his rights in part because of his prior criminal history); State v. Istre, 407 So.2d 1183, 1186-87 (La. 1981) (19-year-old who had IQ of 68 and who did not know his own age intelligently waived rights, which were explained in simplistic terms that he apparently understood); see also State v. Brown, 414 So.2d 689, 696 (La. 1982) (" '[M]oderate mental retardation and low intelligence or illiteracy do not of themselves vitiate the ability to knowingly and intelligently waive constitutional rights and make a free and voluntary confession.' ") (Citations omitted.)

Finally, T.O.T. argues, as part of this assignment of error, that his written statement should have been excluded as involuntary because it was tainted by the initial inadmissible statement(s) made at the principal's office. We have found no legal impediment to the admissibility of the statement(s) made by T.O.T. in the principal's office, and as such, T.O.T.'s oral and written statements are necessarily not tainted by his initial statements. Moreover, even if the initial statement(s) given to the school officials were inadmissible because constitutionally violative, the statements made at the police department, accompanied by Miranda warnings, would be admissible. See Oregon v. Elstad, 470 U.S. 298, 314, 105 S.Ct. 1285, 1296, 84 L.Ed.2d 222 (1985).

In sum, we agree with the ruling of the trial court. There was no requirement that T.O.T. be Mirandized when questioned by the principal in her office at school. At the police department, T.O.T. had been thoroughly informed of his rights, understood those rights, and intelligently waived his rights. There is no evidence in the record to suggest T.O.T. was intimidated, coerced, deceived, threatened, or induced in any way that would have led him to waive his right to remain silent for any reason other than as a function of his free will. See State v. Robertson, 97-0177 (La. 3/4/98), 712 So.2d 8, 30, cert. denied, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998). Accordingly, we find no legal error or abuse of discretion by the trial court in denying T.O.T.'s motion to suppress.

This assignment of error is without merit.


In these related second and third assignments of error, argued together, T.O.T. respectively argues the sentence is excessive because it was imposed without a full disposition hearing and counsel was ineffective in failing to present evidence in mitigation at the time of the disposition.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one's sense of justice. State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

The right of a defendant in a criminal proceeding to the effective assistance of counsel is mandated by the Sixth Amendment to the U.S. Constitution. A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. State v. Serigny, 610 So.2d 857, 859-60 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993).

In evaluating the performance of counsel, the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. State v. Morgan, 472 So.2d 934, 937 (La. App. 1st Cir. 1985). Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. State v. Robinson, 471 So.2d 1035, 1038-39 (La. App. 1st Cir.), writ denied, 476 So.2d 350 (La. 1985).

A claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted. However, where, as is the case here, the record discloses evidence needed to decide the issue of ineffective assistance of counsel, and that issue is raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. State v. Carter, 96-0337 (La. App. 1st Cir. 11/8/96), 684 So.2d 432, 438. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

T.O.T. asserts in brief that the trial court erred in failing to conduct a disposition hearing because the trial court mistakenly believed there was only a mandatory disposition. According to T.O.T., under State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), and specifically, State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77, the trial court could have allowed a downward departure from the mandatory minimum sentence. The trial court did not conduct a full disposition hearing, i.e., allow for presentment of mitigating factors. Thus, according to T.O.T., the sentence was excessive, and defense counsel was ineffective for failing to object to the "immediate imposition of the disposition" following the adjudication hearing and for failing to ask for a disposition hearing.

Prior to entering a judgment of disposition, the court shall conduct a disposition hearing. The disposition hearing may be conducted immediately after the adjudication and shall be conducted within thirty days after the adjudication. Such period may be extended for good cause. La. Ch. Code art. 892. Louisiana Children's Code article 897.1(A) provides in pertinent part:

After adjudication of a felony-grade delinquent act based upon a violation of . . . R.S. 14:42, [aggravated rape] . . . 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.

At the conclusion of the adjudication hearing, the trial court adjudicated T.O.T. delinquent and set a time for a disposition hearing:

At this time -- first of all, you know, we had the scientific evidence. Even without that scientific evidence, I mean, the evidence contained from the witnesses, the lay witnesses and the statement of the defendant, there is no doubt in my mind that even without the scientific evidence, but the scientific evidence certainly corroborates it.
Like I say, there is no doubt whatsoever in this case, and I'm going to find that -- adjudicate him as delinquent for the crime of aggravated rape.
I'm going to set a disposition hearing for -- of course, there's only one disposition.

* * *
But I'm setting a disposition hearing, because they -- you need time for possible motions for new trial, post verdict acquittal motions. So I'm not going to ask for a predisposition report, because there's only once [sic] disposition.
However, I well set a disposition hearing for -- October 31st gives you plenty enough time to file your motions.

Based on the foregoing, it is not at all clear to us why T.O.T. asserts that defense counsel was ineffective for failing to object to the "immediate imposition of the disposition" following the adjudication hearing and for failing to ask for a disposition hearing. The trial court did schedule a disposition hearing, and the trial court specifically, in order to give counsel time to prepare, set the disposition hearing eleven days from its adjudication of T.O.T. Moreover, a juvenile court's failure to conduct a disposition hearing has been found to be harmless error when the disposition is mandatory. See State in Interest of C.D., 95-160 (La. App. 5th Cir. 6/28/95), 658 So.2d 39, 42.

While the trial court noted in the adjudication hearing that there was only one disposition, it is clear, based on its reasons for the disposition at the disposition hearing, that it was well aware of the possible downward departure under Johnson. The trial court presided over the competency hearing, the motion to suppress hearing, and the adjudication hearing, all of which provided a detailed accounting of T.O.T., including his intellectual disability. In Johnson, the Louisiana Supreme Court found that to rebut the presumption that the mandatory minimum sentence (within the framework of the Habitual Offender Law) is constitutional, the defendant must clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances he is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Johnson, 709 So.2d at 676-77. These sentencing review principles are not limited only to sentences under the Habitual Offender Law. See State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274, 1275 (per curiam). Further, a juvenile court (in cases involving mandatory minimum sentences) is to consider and impose its disposition according to the criteria set forth in Johnson. See State ex rel. A.A.S., 98-1505 (La. 10/16/98), 726 So.2d 900, 901.

At the disposition hearing, following the denial of defense counsel's motions for new trial and postverdict judgment of acquittal (and waiver of delays), the trial court imposed the following disposition:

At this time, having been found guilty [sic] of aggravated rape, this being a bitter [sic] bill violation, there is no discretionary part on the part of the court as long as it's not a State versus Johnson situation. In this case T.O.T. is in need of correctional treatment or custodial environment that can be provided most effectively by his
commitment. A lesser disposition would deprecate the seriousness of the delinquent act. I find that under State versus Johnson the court would only be able to go away from the mandatory sentence if there is clear and convincing evidence that the defendant is a victim of the legislature's failure to assign sentencing to tailor the culpability of the offender, the gravity of the offense, and the circumstances of the case. In this situation Johnson isn't applicable. I don't believe that there is such evidence.
Therefore, at this time I make the disposition under Article 897.1 of the Children's Code that he be confined in secure placement until he attains the age of twenty-one years without benefit of parole, probation, suspension of imposition, or execution of sentence or modification of sentence. [Bolding added.]

Defense counsel then asked for reconsideration of sentence, which was denied.

In its disposition, the trial court specifically addressed Johnson and found that T.O.T. had not proven that he was exceptional such that confinement in a secure placement until his twenty-first birthday would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676.

We agree with the trial court that T.O.T. has failed to prove by clear and convincing evidence that he is exceptional in any way such that a downward departure from the disposition would be justified. We further find that T.O.T. has failed to prove ineffective assistance of counsel. T.O.T. contends defense counsel should have provided mitigating factors at the disposition hearing, but suggests nothing mitigatory that the trial court has not already taken into account. The trial court, having addressed Johnson and finding it inapplicable, imposed the only disposition allowable under the law. Thus, even if there was deficient performance, the outcome would be the same since T.O.T. was not prejudiced by the alleged error. See Serigny, 610 So.2d at 859-60. Accordingly, the disposition imposed by the trial court is not grossly disproportionate to the severity of the offense and, therefore, is not excessive.

These assignments of error are without merit.


For the foregoing reasons, we affirm the adjudication and disposition of the juvenile, T.O.T.


Summaries of

In re State

Sep 21, 2015
2015 KJ 0611 (La. Ct. App. Sep. 21, 2015)
Case details for

In re State

Case Details



Date published: Sep 21, 2015


2015 KJ 0611 (La. Ct. App. Sep. 21, 2015)