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State v. Mouton

Court of Appeals of Louisiana, Fifth Circuit

April 26, 2017

STATE OF LOUISIANA
v.
TOMMY L. MOUTON

         ON 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. Beebe.

          Panel composed of Susan M. Chehardy, Fredericka Homberg Wicker, and Stephen J. Windhorst

         CONVICTION AND SENTENCE AFFIRMED; REMANDED FOR CORRECTION OF COMMITMENT

         SMC

         SJW

         FHW

          SUSAN M. CHEHARDY CHIEF JUDGE.

         Defendant, 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.

         STATEMENT OF THE CASE

         On 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.

         FACTUAL AND PROCEDURAL HISTORY

         This 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.

         At some 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.

         During 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).

         After 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." [1] 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. 15:560.1:

[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 Chapter.

La. R.S. 15:560.1(1).

         In 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 natural life.
(3) Submit to electronic monitoring pursuant to the provisions of R.S. 15:560.4 for the duration of his natural life.
(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 dangerous weapons.
(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 Internet-related activities:
(a) The offender's incoming and outgoing electronic mail and other Internet-based communications.
(b) The offender's history of websites visited and the contact accessed.
(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).

         On 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. 15:542(D).

         Three 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 ...


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