In re State

STATE OF LOUISIANA IN THE INTEREST OF A.H.

NUMBER 2018 KJ 0389

STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

December 21, 2018

NOT DESIGNATED FOR PUBLICATION

Appealed from the Juvenile Court In and for the Parish of East Baton Rouge, Louisiana

Juvenile Court Number 106579

Honorable Adam J. Haney, Judge

Katherine M. Franks

Louisiana Appellate Project

Madisonville, LA

Attorney for Appellant

A.H.

Hillar C. Moore, III, D.A.

Dylan C. Alge, A.D.A.

Courtney E. Meyers

Baton Rouge, LA

Attorneys for Appellee

State of Louisiana

BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ.

WELCH, J.

A juvenile, identified herein as A.H., was alleged to be delinquent according to a petition in case number 106579 filed by the State on September 25, 2014, pursuant to the Louisiana Children's Code.¹ The petition was based upon the alleged commission of six counts of simple burglary, in violation of La. R.S. 14:62. The juvenile entered a denial on each allegation. At an adjudication hearing on October 27, 2014, as to counts one and four, the juvenile withdrew the original denial and entered an admission. The juvenile court accepted the admissions on counts one and four, adjudicated the juvenile delinquent on counts one and four, and imposed a consecutive disposition of two years in the custody of the Department of Public Safety and Corrections on each count. As to both counts, the court suspended said commitment, placed the juvenile on supervised probation for one year, and ordered the terms of commitment to run consecutively with the dispositions in case numbers 106090, 106510, and six months of the disposition in case number 110642.² The State dismissed the allegations on the remaining counts. On appeal, A.H. alleges that the juvenile court judge erred in admitting school records without authentication in modifying the disposition at the January 3, 2018 contradictory hearing.³ After a thorough review of the record and the assignment of error, we affirm the juvenile court's judgment of January 3, 2018.

STATEMENT OF FACTS

As the juvenile entered an admission to the amended allegations on counts one and four, the facts are not in the record. Moreover, the facts are not relevant to the issues addressed in the instant appeal. The petition alleges that counts one and four were committed on September 17, 2014, and March 28, 2014.

RIGHT TO APPEAL

In addressing the State's argument on appeal that this court lacks jurisdiction because A.H. did not timely appeal the October 27, 2014 dispositions, we observe the following points. The State cites State in the Interest of Bemis, 459 So.2d 1227, 1228 (La. App. 1^st Cir. 1984), for the premise that the ruling at issue, the modification of the judgments of disposition, is not a judgment of disposition. However, in Bemis, this Court specifically held that the denial of a motion to modify a judgment of disposition was not a judgment of disposition, and thus, this court had no appellate jurisdiction. Herein, the juvenile court granted the motion to modify the judgments of disposition. Thus, Bemis is distinguishable from the instant case. As the State concedes, the Louisiana Children's Code gives the right to appeal from a judgment of disposition. La. Ch.C. art. 330(B). By implication, the Children's Code also gives the right to appellate review of a modification of judgment of disposition as demanded by La. Const. Art. 5, § 10, which grants courts of appeal jurisdiction in all matters appealed from family and juvenile courts. State in the Interest of Wright, 387 So.2d 75, 80 (La. App. 4^th Cir. 1980); see also State in Interest of T. L., 2017-579 (La. App. 5^th Cir. 2/21/18), 240 So.3d 310, 330-332; State in the Interest of Sterling, 441 So.2d 372, 373 (La. App. 5^th Cir. 1983) (modifications revoking parole were reviewed on appeal). Herein, the ruling granting the judgment modifying the dispositions took place at the hearing on January 3, 2018, the motion for appeal was filed on January 19, 2018, and the judgment modifying the dispositions was signed by the juvenilecourt judge on January 31, 2018. Accordingly, it is evident that the motion for appeal was filed within fifteen days from the mailing of notice of judgment. See La. Ch.C. art. 332(A); La. Ch.C. art. 903(D). Thus, A.H. has the right to appellate review of the January 3, 2018 modification of the dispositions.

ASSIGNMENT OF ERROR

In the sole assignment of error, A.H. notes that at the hearing, his counsel objected to the introduction of his school report on the basis of hearsay. He notes that the report was introduced through the testimony of the probation officer who stated that he retrieved the document from a school counselor. Citing La. C.E. art. 803(6), the business records exception to the rule against hearsay, the juvenile argues that since the custodian of the report did not testify as to how the records were kept, the report was unauthenticated hearsay, and therefore, inadmissible. The juvenile argues that the introduction of the report denied him the ability to confront the source of the information. A.H. concedes that hearsay evidence is admissible in adult revocation proceedings. However, claiming that the Children's Code demands full compliance with the Code of Evidence in juvenile revocation proceedings, he argues that a different rule should be applied to juvenile revocation proceedings. The juvenile contends that the juvenile court abused its discretion in allowing the admission of the report. A.H. further contends that the juvenile court considered only school absences reflected in the report in deciding to revoke his parole, thus, he claims that the error in admission cannot be considered harmless in this case.

At the January 3, 2018 hearing on the State's motion to revoke parole and/or modify disposition, the State introduced documentation of the juvenile's school attendance history, dated December 18, 2017. A.H.'s attorney initially objected on the basis of never having received or viewed the documentation prior to the hearing. At that point, the State gave the defense attorney a copy of the documentand the juvenile court judge took a recess to allow the defense attorney to review the document and address it with the child. After the recess, the defense attorney maintained his previous objection, stating that the proper party to authenticate the document was not present. In overruling the objection and admitting the report into evidence, the juvenile court judge stated that hearsay was admissible in a revocation hearing. Regarding authenticity, the judge contended that the weight of the evidence may be at issue as opposed to its admissibility. Noting that the school attendance history report included a number of unexcused absences, tardy arrivals, and skipped dates, Gerard Landry of the Baton Rouge Office of Juvenile Justice Probation and Parole testified that A.H. has some issues with attending school on a regular basis.

Modification of probation⁴ can be obtained through the filing of a motion to revoke probation pursuant to La. Ch.C. art. 913. Unless the juvenile waives his right, the court shall conduct a contradictory hearing. La. Ch.C. art. 913(B). However, pursuant to La. Ch.C. art. 913(C), the hearing may be more informal and summary than an adjudication hearing. (Emphasis added). As further provided in La. Ch.C. art. 913(C), "Consistent with the child's constitutional rights and the burdens upon the prosecution which full compliance with the Code of Evidence might otherwise entail, the court shall have discretion in the receipt and consideration of proffered evidence." (Emphasis added). The provisions of the Louisiana Code of Evidence, including the provisions concerning the exclusion of hearsay, are inapplicable to disposition and modification hearings⁵ in juvenile cases. See La. C.E. art. 1101(C)(3); see also State in the Interest of D.H., 2004-2105, (La. App. 1^st Cir. 2/11/05), 906 So.2d 554, 562. Further, the formal rules ofprocedure and evidence are not employed in a probation revocation hearing.⁶ La. C.E. art. 1101(B)(3); State v. Davis, 375 So.2d 69, 75 (La. 1979); see also State v. Black, 97-0774 (La. 12/12/97), 706 So.2d 423, 424-25 (per curiam) (noting the relaxation of the rules of evidence in a probation revocation hearing); State v. Rochelle 38,633 (La. App. 2^nd Cir. 6/23/04), 877 So.2d 250, 255-256; State v. Fields, 95-2481 (La. App. 1^st Cir. 12/20/96), 686 So.2d 107, 110 ("the rules of evidence are relaxed in probation revocation proceedings[;]" hearsay evidence properly considered). Likewise, since the rules of evidence do not apply at a modification of disposition hearing, hearsay evidence is admissible at juvenile revocation proceedings.

Moreover, under the Code of Evidence, school records are admissible under the traditional public documents exception to the rule against hearsay rather than the business records exception. State v. Dewhirst, 527 So.2d 475, 478 (La. App. 5^th Cir. 1988), writ denied, 535 So.2d 740 (La. 1989); see also Laplante v. Stewart, 470 So.2d 1018, 1020 (La. App. 1^st Cir.), writ denied, 476 So.2d 352 (La. 1985). Specifically, La. C.E. art. 803(8) states in pertinent part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

* * *

Public records and reports. (a) Records, reports, statements, or data compilations, in any form, of a public office or agency setting forth:

(i) Its regularly conducted and regularly recorded activities;

The public documents exception to the rule against hearsay is historically based upon the principles of necessity and the probability of trustworthiness. The exception is founded primarily upon the presumption that an individual entrusted with a duty will do his duty and make a correct statement. The usual hearsayrequirement that the declarant (here, the entrant or custodian) be shown to be unavailable, is dispensed with, largely because of the public inconvenience that would otherwise result from the disruption of public business...