State ex rel. J.D.

129 So. 3d 831, 2013 La.App. 4 Cir. 0964, 2013 La. App. LEXIS 2466, 2013 WL 6923713
CourtLouisiana Court of Appeal
DecidedNovember 27, 2013
DocketNo. 2013-CA-0964
StatusPublished
Cited by7 cases

This text of 129 So. 3d 831 (State ex rel. J.D.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. J.D., 129 So. 3d 831, 2013 La.App. 4 Cir. 0964, 2013 La. App. LEXIS 2466, 2013 WL 6923713 (La. Ct. App. 2013).

Opinion

SANDRA CABRINA JENKINS, Judge.

1 ¡The instant appeal from the Orleans Parish Juvenile Court challenges an adjudication of delinquency based on a violation of La. R.S. 14:38.2 — assault on a school teacher. Appellant, herein referred to as J.D.,1 was found to have assaulted a teacher by uttering the words “you ain’t safe, I’ll shoot you,” while walking away from the victim.

On appeal, J.D. challenges the constitutionality of R.S. 14:38.2,2 the effectiveness of his trial counsel, and the sufficiency of the State’s evidence to |2sustain the judgment. For the following reasons, we affirm the adjudication of delinquency.

FACTUAL AND PROCEDURAL BACKGROUND

On March 18, 2013, the victim, teacher Justin Beardon, found J.D. and another student sitting on the bleachers of the Lake Area New Tech Early College High School gym during a class period in which they should have been elsewhere. Bear-[833]*833don twice asked them to leave the area, which they did upon his second request. As J.D. was leaving the gym, he uttered “you ain’t safe, I’ll shoot you,” to Beardon. J.D.’s statement alarmed Beardon, who was well acquainted with the minor both as his teacher and football coach. J.D. did not say anything else to Beardon during this interaction. Beardon reported the incident to the school disciplinarian. The police were summoned and J.D. was arrested.

J.D. was charged with a single count of assault on a school teacher under R.S. 14:38.2. After a June 6, 2013 hearing, J.D. was adjudicated delinquent by an ad-hoc judge. The court imposed a suspended disposition of 180 days as well as one year of active probation.

This appeal followed.

DISCUSSION

In juvenile appeals, this Court reviews both “facts and law to determine whether there is sufficient evidence of proof beyond a reasonable doubt to adjudicate a child a delinquent.” State in the Interest of D.R., 10-0405, p. 8 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 932.

|aJ.D.’s Constitutional Challenge to R.S. 14:38.2 is Waived

J.D. contends that R.S. 14:38.2(A)(2)(b), which criminalizes “making statements threatening physical harm to a school teacher,” is unconstitutionally overbroad. The State, by contrast, urges that the constitutionality of the statute, and its application to J.D. in particular, were improperly raised below and, thus, not preserved on appeal. We agree with the State.

An overbreadth challenge is a facial attack upon a statute’s constitutional validity. See, e.g., United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 1587, 176 L.Ed.2d 435 (2010) (observing that a law is overbroad, and therefore invalid, if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep”) (citations omitted). The Louisiana Supreme Court has recently reaffirmed that “[wjhile there is no single procedure for attacking the constitutionality of a statute, it has long been held that the unconstitutionality of a statute must be specifically pleaded and the grounds for the claim particularized.” State v. Overstreet, 12-1854, p. 9 (La.3/19/13), 111 So.3d 308, 314 (quoting State v. Hatton, 07-2377, p. 13 (La.7/1/08), 985 So.2d 709, 719) (emphasis added) (internal citations omitted). Despite the absence of a formal procedure, the constitutional challenger to any statute carries a threefold burden, first, to raise the unconstitutionality in the trial court, second, to plead the issues specially, and lastly, to outline the unconstitutionality on particularized grounds. Id. (quoting State v. Hatton, 07-2377, p. 13 (La.7/1/08), 985 So.2d 709, 719) (internal citations omitted). “[T]he specific plea of unconstitutionality and 14the grounds therefor must be raised in a pleading.” Id., 12-1854, p. 9, 111 So.3d at 315 (emphasis added) (citations omitted). This requirement affords interested parties an opportunity to brief the question of constitutionality in full, thereby providing the “trial court with thoughtful and complete arguments relating to the issue of constitutionality and furnishing] reviewing courts with an adequate record upon which to consider the constitutionality of the statute.” Id., 12-1854, p. 10, 111 So.3d at 314 (quoting State v. Hatton, 07-2377, p. 13 (La.7/1/08), 985 So.2d 709, 719) (internal citations omitted) (amendments added).

J.D. challenges the breadth of R.S. 14:38.2(A)(2)(b) for the first time on appeal. He did not previously raise the issue [834]*834in a motion to quash or other pretrial pleading as expressly required by Over-street and its predecessor cases. See Overstreet, 12-1854, p. 11, 111 So.3d at 315 (citations omitted). Nothing at all was specially pleaded to the trial court by way of overbreadth or the protected nature of J.D.’s specific utterance. See id, 12-1854, p. 9, 111 So.3d at 314 (“the unconstitutionality of a statute must be specifically pleaded and the grounds for the claim particularized”). Trial counsel’s two fleeting references to the First Amendment in opening and closing statements were insufficient to preserve the issue even if they had been on point, which they were not. J.D. concedes as much in his second assignment of error, which alleges the ineffective assistance of counsel based upon trial counsel’s failure to challenge the constitutionality ofR.S. H:38.2(A)(2)(b).

|sThe trial court was unable to pass on the question of the statute’s constitutionality and, therefore, neither shall we. The issue was waived.

The Effectiveness of Trial Counsel’s Performance Will Not be Reviewed on Direct Appeal From the Adjudication of Delinquency

J.D. contends that he is entitled to the reversal of his delinquency adjudication because of the ineffective assistance of his trial counsel. Specifically, he points to counsel’s failure to raise a constitutional challenge to the breadth of R.S 14:38.2(A)(2)(b) as the basis for his claim. We do not address the merits of his claim here, as it is better suited for a post-adjudication hearing resembling the kind of hearing available on post-conviction relief.

Juvenile and adult defendants alike are entitled to effective assistance of counsel. See State in the Interest of Jones, 372 So.2d 779, 780 (La.App. 4 Cir.1979) (citing Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)). Ineffective assistance of counsel claims are more appropriately raised in a petition for post-conviction relief under La.C.Cr.P. art. 924, et seq.3 See State v. Carter, 630 So.2d 926, 935 (La.App. 4 Cir.1993) (citing State v. Prudholm, 446 So.2d 729, 737 (La.1984)). If the record discloses sufficient evidence to rule on the merits of the claim, then the interests of judicial economy justify consideration of the issues on appeal. State v. Harris, 11-0663, p. 6 (La.App. 4 Cir. 3/28/12), 88 So.3d 1223, 1226 (citing State v. Landry, 499 So.2d 1320, 1324 (La.App. 4 Cir.1986)). However, where the record contains insufficient evidence to fully explore |fia claim of ineffective assistance, that claim should be deferred until post-conviction proceedings. See, e.g., State v. Holmes, 607 So.2d 956, 961 (La.App. 4 Cir.1992), writ denied, 612 So.2d 97 (La.1993);

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Bluebook (online)
129 So. 3d 831, 2013 La.App. 4 Cir. 0964, 2013 La. App. LEXIS 2466, 2013 WL 6923713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-jd-lactapp-2013.