State of Louisiana in the Interest of M.H. ( 2023 )

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.
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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