APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 15-1157, DIVISION
"L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Paul D.
Connick, Jr., Terry M. Boudreaux, Thomas J. Butler, Matthew
R. Clauss, Andrew Decoste.
COUNSEL FOR DEFENDANT/APPELLANT, TOMMY L. MOUTON Jane L.
composed of Susan M. Chehardy, Fredericka Homberg Wicker, and
Stephen J. Windhorst
AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT
M. CHEHARDY CHIEF JUDGE.
Tommy L. Mouton, appeals his conviction and sentence for one
count of failure to register as a sex offender, second
offense, in violation of La. R.S. 15:542. For the following
reasons, we affirm defendant's conviction and sentence.
Finding an error patent, we remand the matter for correction
of the commitment and uniform commitment order.
OF THE CASE
March 20, 2015, the State charged defendant by bill of
information with one count of failure to register as a sex
offender, second offense, in violation of La. R.S. 15:542. On
March 23, 2015, the district court arraigned defendant on
this charge, and defendant entered a plea of not guilty.
Following a jury trial, the jury rendered a unanimous verdict
of guilty on March 24, 2016. Thereafter, on June 9, 2016,
defendant filed a motion for new trial and for post-verdict
judgment of acquittal, arguing that the jury's verdict
constitutes a violation of the Fourteenth Amendment of the
United States Constitution because it was impossible for
defendant to comply with the law due to his indigency. On
June 10, 2016, the district court denied defendant's
motion and sentenced defendant to twenty years imprisonment
at hard labor without benefit of probation, parole, or
suspension of sentence. That day, defendant filed a motion
for appeal and a motion to reconsider sentence on the grounds
that the sentence is constitutionally excessive. On June 13,
2016, the district court denied defendant's motion to
reconsider and granted defendant's motion for appeal.
Defendant's appeal followed.
AND PROCEDURAL HISTORY
appeal arises from defendant's conviction and sentence
for failure to register as a sex offender, second offense, a
conviction that, among other things, requires proof of
previous sex offense convictions. Defendant's sex
offender status arose from three 1990 convictions. On October
1, 1989, the State charged defendant by bill of information
with one count of aggravated oral sexual battery, one count
of indecent behavior with a juvenile, and one count of sexual
battery on a child younger than eighteen. The 1989 bill of
information reflects that these charges all related to sexual
conduct which occurred at some time over an almost four year
period-from January 18, 1986 through October 1, 1989-with the
same female victim, who was between the ages of seven and ten
during the relevant times. Defendant was between the ages of
thirty-two and thirty-six at that time. On November 26, 1990,
the district court, in Case No. 90-714, Twenty-Fourth JDC,
Division "F, " accepted defendant's guilty
pleas on these three counts and sentenced defendant to ten
years at hard labor on the aggravated oral sexual battery
conviction, ten years at hard labor on the sexual battery on
a child conviction, and seven years at hard labor on the
indecent behavior with a juvenile conviction, with the
sentences on these convictions to run concurrently.
time during his incarceration for these convictions, prison
authorities apparently discovered a journal in
defendant's cell containing several dozen prurient and
pornographic drawings of female girls of various ages as well
as detailed instructions for targeting, kidnapping, raping,
and murdering children of various ages. The record in the
instant matter contains these illicit drawings and journal
entries. Defendant admitted that he generated these drawings
and journal entries. In connection with this journal,
defendant pled guilty in Claiborne Parish to possession of
pornography involving juveniles, in violation of La. R.S.
14:81.1. Defendant was sentenced to an additional ten years
at hard labor as a result of the Claiborne Parish conviction.
Evidently, after serving his sentences for his three initial
sex offense convictions and for the possession of child
pornography conviction, defendant was released from prison in
2008. At that time, defendant was required to register as a
sex offender for twenty-five years, with semi-annual updates.
Defendant successfully registered in 2008 but then failed to
appear thereafter. On February 12, 2010, defendant was
arrested for failure to register as a sex offender. He was
convicted of failure to register as a sex offender, first
offense, on September 24, 2010, in case number 10-1200,
Twenty-Fourth JDC, Division "L, " and was sentenced
to five years at hard labor.
this second period of incarceration, the Sex Offender
Assessment Panel ("SOAP") convened to review
defendant's file in accordance with La. R.S. 15:560.2.
This three-member panel is composed of (1) a qualified
psychologist, (2) the secretary of the Department of Public
Safety and Corrections or his designee, and (3) the warden or
the deputy warden of the institution where the offender is
located, a probation or parole officer with at least ten
years of experience, or a retired law enforcement officer
with at least five years of experience in investigating sex
offenses. La. R.S. 15:560.2(B). By statute, this panel must
review the files of every sex offender and child predator who
is required to register and who is to be released from
custody for purposes of determining whether the offender is a
"sexually violent predator" or a "child sexual
predator, " as defined by La. R.S. 15:560.1. La. R.S.
15:506.2(F). Subject to this panel's review are
presentence reports, prison records, medical and
psychological records, information and data gathered by the
staffs of the Board of Pardons and the Board of Parole,
information provided by the convicted offender, the district
attorney, and the assistant district attorney, and any other
information obtained by the boards or the Department of
Public Safety and Corrections. La. R.S. 15:506.2(E).
reviewing defendant's file, the panel issued its
recommendation that defendant is a "child sexual
predator" and forwarded that recommendation to the
sentencing court, Division "L" of the Twenty-Fourth
JDC. As required by La. R.S. 15:560.2(I), Judge Rowan of
Division "L" conducted a hearing on December 11,
2013, to review the SOAP recommendation. As the hearing
convened, defendant agreed to stipulate to his status as a
"child sexual predator."  Judge Rowan reviewed the
evidence to support the stipulation-including, it appears,
the pornographic drawings and journal entries defendant
generated in prison-and conducted a colloquy with defendant
during which he apprised him of the nature of the stipulation
and ensured that his decision to stipulate was a knowing,
intelligent, free and voluntary act. On December 11, 2013,
defendant executed the stipulation acknowledging that he is a
"child sexual predator" as defined in La. R.S.
[A] person who has been convicted of a sex offense as defined
in R.S. 15:541 and who is likely to engage in additional sex
offenses against children, because he has a mental
abnormality or condition which can be verified by a physician
or psychologist, or because he has a history of committing
crimes, wrongs, or acts involving sexually assaultive
behavior or acts which indicate a lustful disposition toward
children, as determined by the court upon receipt and review
of relevant information including the recommendation by the
sex offender assessment panel as provided for by this
La. R.S. 15:560.1(1).
accordance with this stipulation and the SOAP recommendation,
the district court adjudicated defendant to be a "child
sexual predator." As a consequence of his adjudication
as a "child sexual predator, " defendant became
obligated to submit to supervision by the division of
probation and parole, Department of Public Safety and
Corrections, upon his release from incarceration for the
duration of his natural life. La. R.S. 15:560.3(A). Under La.
R.S. 15:560.3(A), defendant was further required, upon his
release from prison, to:
(1) Register as a sex offender in accordance with the
provisions of R.S. 15:542 et seq. and maintain such
registration for the remainder of his natural life.
(2) Provide community notification in accordance with the
provisions of R.S. 15:542 et seq. for the duration of his
(3) Submit to electronic monitoring pursuant to the
provisions of R.S. 15:560.4 for the duration of his natural
(4) Report to the probation and parole officer when directed
to do so.
(5) Not associate with persons known to be engaged in
criminal activities or with persons known to have been
convicted of a felony without written permission of his
probation and parole officer.
(6) In all respects, conduct himself honorably, work
diligently at a lawful occupation, and support his
dependents, if any, to the best of his ability.
(7) Promptly and truthfully answer all inquiries directed to
him by the probation and parole officer.
(8) Live and remain at liberty and refrain from engaging in
any type of criminal conduct.
(9) Not have in his possession or control any firearms or
(10) Submit to available medical, psychiatric, or mental
health examination and treatment for persons convicted of sex
offenses when deemed appropriate and ordered to do so by the
probation and parole officer.
(11) Defray the cost, or any portion thereof, of his
supervision by making payments to the Department of Public
Safety and Corrections in a sum and manner determined by the
department, based on his ability to pay.
(12) Submit a residence plan for approval by the probation
and parole officer.
(13) Submit himself to continued supervision, either in
person or through remote monitoring, of all of the following
(a) The offender's incoming and outgoing electronic mail
and other Internet-based communications.
(b) The offender's history of websites visited and the
(c) The periodic unannounced inspection of the contents of
the offender's computer or any other computerized device
or portable media device and the removal of such information,
computer, computer device, or portable media device to
conduct a more thorough inspection.
La. R.S. 15:560.3(A).
February 9, 2015, immediately prior to his full-term release
from the Louisiana Department of Corrections, defendant met
with a record analyst with the Department of Corrections who
discussed with defendant his obligation to register as a sex
offender. Defendant indicated that he understood his
obligations under the law. When asked where he intended to
reside after his release, defendant provided an address in
Bridge City, which is located in Jefferson Parish. When
defendant stated that he would need a bus ticket to New
Orleans, the Department of Corrections Inmate Banking Office
provided defendant with a "J-Pay card"- which may
be used like a debit card-with $44.50 credited to it, an
amount which includes the cost of the highest-priced fare to
New Orleans on the appointed day plus $20. Defendant did not
suggest he had any concerns about his ability to pay the
annual registration fee of $60, as set forth in La. R.S.
days later, on February 12, 2015, the Department of
Corrections released defendant from custody. From February
13, 2015 through February 27, 2015, defendant, a veteran of
the United States Army, had continuous medical appointments
and medical evaluations at the Veterans Administration
("VA") hospital in New Orleans, including a
February 13, 2015 visit to the Health Care for Homeless
Veterans ("HCHV") clinic when he presented to
request a placement in the HCHV Transitional Housing Program
and was referred to the VA's Homeless Patient Aligned
Care Teams ("H-PACT") to obtain the required
clearances to ...