State of Louisiana v. Chad Michael Mouton

NOT FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-108

STATE OF LOUISIANA

VERSUS

CHAD MICHAEL MOUTON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. CR 131200
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy and J. David Painter, Judges.

CONVICTION AND SENTENCE AFFIRMED.
MOTION TO WITHDRAW GRANTED.
Michael Harson, District Attorney
Keith Stutes, Assistant District Attorney
P.O. Box 3306
Lafayette, LA 70502
(337) 232-5170
ATTORNEY FOR APPELLEE
State of Louisiana

Annette Roach
Louisiana Appellate Project
P.O. Box 1747
Lake Charles, LA 70602
(337) 436-2900
ATTORNEY FOR DEFENDANT/APPELLANT
Chad Michael Mouton

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Defendant, Chad Michael Mouton, was indicted for aggravated rape of a

child under the age of thirteen, a violation of La.R.S. 14:42, on October 27, 2010.

Defendant entered a plea of not guilty on December 14, 2010. The trial court

ordered a sanity commission on October 17, 2011, “to examine [Defendant] as to

and whether or not at the time of the alleged crime he was able to distinguish

between right and wrong.” Dr. Catherine McDonald issued a report on June 13,

2012, indicating her opinion Defendant could stand trial. Dr. Glenn Ally’s report

dated April 12, 2012, also opined Defendant was competent to stand trial. That

report also indicated Defendant “knows right from wrong” and could “aid and

assist his attorney in his own defense.” The trial court found Defendant competent

to stand trial at a hearing on August 15, 2013.

On September 5, 2013, Defendant changed his plea to guilty of the lesser

included offense of oral sexual battery of a victim under the age of fifteen at least

three years younger than he, a violation of La.R.S. 14:43.3(A)(1). The plea

agreement indicated Defendant understood he could be sentenced to imprisonment

at hard labor for twenty-five to ninety-nine years, with at least twenty-five years to

be served without benefit of parole, probation, or suspension of sentence.

Defendant also agreed to a plea recommendation of a sentencing cap of forty years,

and the trial court agreed to abide by that recommendation.

After considering the presentencing investigation report, Defendant’s prior

criminal history, and the aggravating and mitigating circumstances of the case, the

trial court sentenced Defendant to thirty-five years at hard labor, with the first

twenty-five years to be served without benefit of probation, parole, or suspension

of sentence. Defendant objected to the sentence as “unduly harsh” but filed no

motion to reconsider his sentence.

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Appellate counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396 (1967), alleging no non-frivolous issues exist on which to

base an appeal and seeking to withdraw as Defendant’s counsel.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for

errors patent on the face of the record. After reviewing the record, we find there

are no errors patent.

ANALYSIS

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth

circuit explained the analysis based on Anders, 386 U.S. 738:

When appointed counsel has filed a brief indicating that no
non-frivolous issues and no ruling arguably supporting an appeal were
found after a conscientious review of the record, Anders requires that
counsel move to withdraw. This motion will not be acted on until this
court performs a thorough independent review of the record after
providing the appellant an opportunity to file a brief in his or her own
behalf. This court’s review of the record will consist of (1) a review
of the bill of information or indictment to insure the defendant was
properly charged; (2) a review of all minute entries to insure the
defendant was present at all crucial stages of the proceedings, the jury
composition and verdict were correct and the sentence is legal; (3) a
review of all pleadings in the record; (4) a review of the jury sheets;
and (5) a review of all transcripts to determine if any ruling provides
an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court
will order that the appeal record be supplemented with pleadings,
minute entries and transcripts when the record filed in this Court is not
sufficient to perform this review.

While it is not necessary for Defendant’s counsel to “catalog tediously every

meritless objection made at trial or by way of pre-trial motions with a labored

explanation of why the objections all lack merit[,]” an Anders brief must “‘assure

the court that the indigent defendant’s constitutional rights have not been

violated.’” State v. Jyles, 96-2669, p. 2 (La. 12/12/97), 704 So.2d 241 (citing

Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308 (1983) and McCoy v. Court of

Appeals of Wisconsin, 486 U.S. 429, 108 S.Ct. 1895 (1988)). Counsel must fully

discuss and analyze the trial record and consider “whether any ruling made by the

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trial court, subject to the contemporaneous objection rule, had a significant,

adverse impact on shaping the evidence presented to the jury for its consideration.”

Jyles, 704 So.2d at 241 (citing United States v. Pippen, 115 F.3d 422 (7th Cir.

1997)). Thus, counsel’s Anders brief must review the procedural history and the

evidence presented at trial and provide “a detailed and reviewable assessment for

both the defendant and the appellate court of whether the appeal is worth pursuing

in the first place.” State v. Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176,

1177.

Pursuant to Anders, 386 U.S. 738, and Jyles, 704 So.2d 241, Defendant’s

appellate counsel filed a brief citing several potential errors for appeal, including

an excessive sentence argument. Counsel noted the guilty plea indicated

Defendant understood he would receive a sentence of no more than forty years.

The sentence actually imposed was below this sentencing cap.

Louisiana Code of Criminal Procedure Article 881.2(A)(2) provides a

“defendant cannot appeal or seek review of a sentence imposed in conformity with

a plea agreement which was set forth in the record at the time of the plea.” This

court has held, based on this article, “[i]n an instance where the court sentences the

defendant in accordance with the parties’ recommendation for a specific sentence

or a sentencing range, it is clear that review of the imposed sentence is precluded.”

State v. Jordan, 98-101, p. 4 (La.App. 3 Cir. 6/3/98), 716 So.2d 36, 38. Thus, a

defendant may not seek review of his sentence “when a specific sentence or

sentencing range is agreed to by both parties as part of a plea agreement, and is

judicially recognized at the sentencing hearing.” Id. at 39 (quoting State v.

Goodman, 96-376, p. 4 (La.App. 3 Cir. 11/6/96), 684 So.2d 58, 61).

Here, the trial court sentenced Defendant according to the recommended

sentencing cap. Defense counsel correctly concluded Defendant cannot make a

non-frivolous argument on appeal alleging an excessive sentence.

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Counsel also noted the trial court appointed the sanity commission in order

to determine whether Defendant was able to distinguish right from wrong at the

time of the offense. Reports from the assigned medical experts indicated

Defendant was competent to stand trial. Dr. Ally’s report also stated Defendant

could determine right from wrong. At the hearing on August 15, 2013, however,

the trial court found Defendant was competent to stand trial, not whether he was

able to distinguish right from wrong.

Defendant’s ability to determine right from wrong at the time of the offense

is a defense to be asserted via a plea of not guilty by reason of insanity. La.Code

Crim.P. art. 651. As Defendant never pled not guilty by reason of insanity, the

purpose of a sanity commission in this case is to determine whether the defendant

has “the capacity to understand the proceedings against him or to assist in his

defense.” La.Code Crim.P. art. 641. This in fact is what the trial court determined

at the August 15, 2013 hearing. This does not present a non-frivolous issue for

appeal.

The trial judge discussed the elements of the offense with Defendant at the

plea hearing. He described oral sexual battery as “the touching of the anus or

genitals of a child under the age of thirteen years of age[]” without mentioning the

element of “using the mouth or tongue[.]” Nevertheless, Defendant agreed when

the trial judge asked him, “[y]ou had contact with a minor under the age of thirteen

years with your mouth on her vagina?” This indicates Defendant’s understanding

of the elements of the offense.

Further, the trial court discussed the sentencing range with Defendant. He

mistakenly advised Defendant the range was twenty-five to seventy-five years

without benefit of probation, parole, or suspension of sentence. The actual

maximum sentence for Defendant’s offense is ninety-nine years. La.R.S.

14:43.3(C)(2). The plea form, however, set forth the correct sentencing range.

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The record does not indicate Defendant was prejudiced in any manner by the trial

court regarding the maximum sentence.

We have performed a thorough review of the record pursuant to Anders and

Benjamin, including pleadings, minute entries, the charging instrument, and the

transcripts and have confirmed the statements by counsel. Defendant was present

and represented by counsel at all crucial stages of the proceedings, and he

acknowledged his guilty plea on the plea form. The trial court correctly informed

Defendant of his Boykin rights and discussed his possible sentence.

The statute to which Defendant pled describes the victim as being “under the

age of fifteen years[.]” La.R.S. 14:43.3(A)(1). The trial court described the

offense as involving a child under the age of thirteen. The record indicates

Defendant’s victim was nine years old at the time of the offense. Thus, the trial

judge’s mistake in reciting the age of the victim as set forth in the statute caused

Defendant no prejudice and did not affect his plea in any manner.

Our review of the record reveals no issues to support an assignment of error

on appeal beyond the potential issues addressed by counsel. Therefore, we grant

appellate counsel’s motion to withdraw.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO
WITHDRAW GRANTED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules–Courts of
Appeal, Rule 2-16.3.

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