State of Louisiana v. Christopher Lee Wagnon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-446

STATE OF LOUISIANA

VERSUS

CHRISTOPHER LEE WAGNON

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 91693
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Marc T. Amy, Judges.

AFFIRMED. REMANDED WITH INSTRUCTIONS.

Annette Fuller Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Christopher Lee Wagnon

Asa A. Skinner
District Attorney
Post Office Box 1188
Leesville, LA 71496-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

Terry W. Lambright
118 S. Third Street, Suite A
Leesville, LA 71446
(337) 239-6557
COUNSEL FOR APPELLEE:
State of Louisiana

AMY, Judge.

Pursuant to a plea agreement, the defendant entered guilty pleas to three counts

of oral sexual battery and to one count of third degree rape. The trial court

subsequently imposed seven-year, hard labor sentences for each of the three

convictions for oral sexual battery and ordered that they be served without benefit of

parole, probation, or suspension of sentence. The trial court further imposed a twenty-

year sentence, also to be served at hard labor and without benefit of parole, probation,

or suspension of sentence, for the third degree rape conviction. The trial court ordered

that all sentences are to be served concurrently. The defendant appeals. For the

following reasons, we affirm. We further remand this matter with instructions

regarding registration and notification requirements.

Factual and Procedural Background

By October 2017 bill of information, the State charged the defendant,

Christopher Lee Wagnon, with five counts or oral sexual battery, violations of La.R.S.

14:43.3(A)(1); one count of sexual battery, a violation of La.R.S. 14:43.1; one count

of indecent behavior with juveniles, a violation of La.R.S. 14:81(A)(1); and one count

of third degree rape, a violation of La.R.S. 14:43(A)(1). Although initially entering a

plea of not guilty, the defendant entered into a plea agreement in January 2018.

Thereby, the defendant changed his plea to guilty of three counts of oral sexual

battery and guilty of one count of third degree rape. The State offered the following

factual background for the plea:

On the Bill of Information 91,693, Judge, generally it is contended
that back between the period of time of July, 2016 through a period of
time of January of 2017 that on a number of occasions, numerous
occasions, that this defendant did travel to the grandparents[’] home of
the young victim, M.T.,[ 1 ] who at the time - - his date of birth was

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Initials of the victims are used to protect their identity in accordance with La.R.S.
46:1844(W).

10/18/02, and on those occasions did solicit this 14 year old at the time
by enticing him with tobacco, alcohol, for sexual favors. That occurred
on numerous times with this young victim. With respect to the other
victim, C.V., whose date of birth was 10/13/2002, on at least several of
those occasions this victim was present and this defendant did also
through solicitation with alcohol and tobacco did engage this young man
to engage in sexual acts. For purposes particularly of the counts the State
would contend in Count Number 1 that this defendant did commit oral
sexual battery upon M.T., a male juvenile, whose date of birth was
10/18/02 and that he did intentionally touch the genitals of the victim,
M.T., with his mouth. The victim was not the spouse of the offender and
the victim was under the age of 15 and the victim was at least three years
younger than the offender. That occurred on July - - in July of 2016.
Under Count Number 2 of that Bill of Information the State would again
contend that this defendant did commit oral sexual battery upon M.T., a
male juvenile, whose date of birth was 10/18/02 in that he did
intentionally touch the genitals of the victim, M.T., with his mouth. The
victim again was not the spouse of the offender and the victim was under
the age of 18 and the victim was at least three years younger than the
offender. Again, under Bill of Information 91,693, Count Number 7, the
State would contend that this defendant committed oral sexual battery
upon C.V., a male juvenile, whose date of birth was 10/13/02 in that he
did intentionally touch the genitals of the victim, C.V., with his mouth.
The victim was not the spouse of the offender and the victim was under
the age of 15 and the victim was at least three years younger than the
offender. Under Count 8 of Bill of Information 91,693 it’s contended
that this defendant committed third degree rape in that he did engage in
anal sexual intercourse with C.V. whose date of birth was 10/13/02, a
male juvenile, without lawful consent because the victim, C.V., was
incapacitated at the time and incapable of resisting or understanding the
nature of the act by reason of a stupor or some abnormal condition of the
mind produced by intoxicating agents. The offender knew or should
have known that the victim was incapacitated at the time. All of these
events occurred in Vernon Parish, State of Louisiana ….

Pursuant to the plea agreement, the State dismissed the remaining charges.

In March 2018, the trial court sentenced the defendant to seven years at hard

labor without benefit of parole, probation, or suspension of sentence for each count of

oral sexual battery and to twenty years at hard labor without benefit of parole,

probation, or suspension of sentence for third degree rape, with credit for time served.

The sentences are to run concurrently.

The defendant thereafter filed a motion to reconsider sentence, claiming that the

twenty-year sentence for third degree rape—to be served without benefit of parole,

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probation, or suspension of sentence—was excessive for a first felony offender who

cooperated with authorities and gave a voluntary statement admitting the crimes. The

trial court denied that motion by order explaining that: “Considering the record, PSI,

law, specifically both mitigating and aggravating factors in CCr.P. Art. 894.1 the

defendant’s motion lacks merit.”

The defendant appeals, assigning the following as error:

1) The sentences imposed by the trial court violate[] the Eighth
Amendment of the Constitution of the United States and La. Const[.] Art.
I, § 20, as they are nothing more than cruel and unusual punishment and,
thus, excessive.

2) The trial court erred in failing to properly advise Appellant of the
lifetime reporting requirements required by La. R.S. 15:544(B)(2)(a).

Discussion
Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors

patent on the face of the record. An error patent is one “that is discoverable by a mere

inspection of the pleadings and proceedings and without inspection of the evidence.”

La.Code Crim.P. art. 920(2). On review, we find no errors patent.

Excessiveness of the Sentence

In his first assignment of error, the defendant contends that his sentences are

excessive, representing unconstitutional cruel and unusual punishment. See U.S.

Const. amend. VIII; La.Const. art. I, § 20. Asserting that “[a]ll four sentences are in

the upper-range of sentencing possibilities[,]”2 the defendant contends that such an

2
As reported above, the trial court sentenced the defendant to concurrent, seven-year, hard
labor sentences for each of the oral sexual battery convictions. In pertinent part, La.R.S. 14:43.3
provides: “C. (1) Whoever commits the crime of oral sexual battery shall be punished by
imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of
sentence, for not more than ten years.”

Further, and relevant to consideration of the twenty-year, hard labor sentence for third degree
rape, La.R.S. 14:43(B) provides: “Whoever commits the crime of third degree rape shall be

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imposition was inappropriate under the circumstances of the case. He argues that the

underlying offenses were not the most egregious violations of the statutes. The

defendant further references various mitigating factors, including his young age

(twenty seven at the time of sentencing), his first felony offender status, his

cooperation as reflected by his participation in the plea agreement, and his own

history as a victim of sexual abuse.

Before turning to consideration of the defendant’s assignment, we address the

State’s contention that the defendant waived his right to appeal his sentence as part of

his plea agreement. Reference to the signed “Plea Agreement” contained within the

record indicates that:

By accepting this plea agreement, the defendant waives, releases
and relinquishes any and all rights to appeal the conviction and sentence
resulting from this plea agreement, whether on direct appeal or by
application for post-conviction relief, motion to modify sentence, motion
to correct sentence, application for habeas corpus relief, or otherwise.

However, the record further includes the “Waiver of Constitutional Rights and Plea of

Guilty” form providing that:

I understand that I have thirty days after the rendition of the judgment to
file a motion to appeal my sentence or any other orders or judgments of
the court.

Additionally, at the sentencing hearing, the trial court informed the defendant that:

“You have 30 days after the judgment or ruling from which the appeal is taken [sic]

either in open court or by written motion.”

In State v. McAdory, 17-571 (La.App. 3 Cir. 1/4/18), 237 So.3d 539, a panel of

this court recently considered the waiver argument advanced by the State.

Comparison indicates that the defendant in that case ostensibly waived his right to

imprisoned at hard labor, without benefit of parole, probation, or suspension of sentence, for not
more than twenty-five years.”

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raise sentencing issues on appeal by signing a plea agreement form using the same

language as that now under consideration. The panel explained:

[T]he question is whether the clause stating that Defendant waives his
right to appeal his conviction and sentence should be upheld as valid. The
State argues that because the supreme court found in State v. Bordelon,
07-525 (La. 10/16/09), 33 So.3d 842, that even a capital defendant
sentenced to death may waive his right to appeal, the waiver should be
considered valid so long as it was given knowingly and intelligently. We
caution, however, that the Bordelon court also noted it was still required
to review the defendant’s capital sentence for excessiveness under
La.Code Crim.P. art. 905.9. Although the excessiveness issue in
Bordelon is not relevant in the instant matter, we note that the trial court
instructed Defendant at sentencing that, “[y]ou have two years from the
date this sentence becomes final to assert any claim for post conviction
relief and you have 30 days in which to file an appeal.” We will,
therefore, address Defendant’s appeal.

Id. at 543. Given the record before the court, we find that the circumstances of this

case similarly render consideration of the defendant’s sentence for excessiveness

appropriate. Accordingly, we turn to that review.

First, and while the terms of imprisonment imposed in this matter are within the

applicable statutory range, such a sentence may be excessive under certain

circumstances, i.e., when it is found to be “so grossly disproportionate to the severity

of the crime as to shock our sense of justice” or “makes no reasonable contribution to

acceptable penal goals and therefore, is nothing more than the needless imposition of

pain and suffering.” State v. Guzman, 99-1528, 99-1753, p. 15 (La. 5/16/00), 769

So.2d 1158, 1167.

In State v. Fruge, 14-1172, p. 6 (La. 10/14/15), 179 So.3d 579, 583 (citations

omitted), writ denied, 14-1180 (La. 10/14/15), 179 So.3d 595, the supreme court

further explained that:

In determining whether the penalty is grossly disproportionate to the
severity of the crime, a reviewing court must consider the punishment
and the crime in light of the harm to society caused by its commission
and decide whether the penalty is so disproportionate to the crime
committed as to shock the sense of justice.

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The following factors are useful in determining whether a
sentence, by its excessive length or severity, is grossly out of proportion
to the underlying crime: the nature of the offense and the offender, a
comparison of the punishment in this case with the sentences imposed for
similar crimes, the legislative purpose behind the punishment, a
comparison of the punishment with sentences imposed for similar crimes,
and a comparison of the punishment provided for this crime in other
jurisdictions.

Also, as urged by the defendant in his brief to this court, sentences that are “at

or near the maximum should ordinarily apply only to the most blameworthy offenders

committing the most serious violations of the described offense.” State v. LeBlanc,

09-1355, p. 10 (La. 7/6/10), 41 So.3d 1168, 1173. Importantly, an “appellate court

shall not set aside a sentence for excessiveness if the record supports the sentence

imposed.” La.Code Crim.P. art. 881.4(D).

Following review, we find that the record supports the sentences imposed. At

the sentencing hearing, the trial judge explained that it considered letters written on

the defendant’s behalf, including one written by the defendant, along with a pre-

sentence investigation, and the sentencing guidelines of La.Code Crim.P. art. 894.1.

After it filed the PSI and letters into the record, the trial court explained that:

In the pre-sentence investigation, Mr. Wagnon was charged with
… eight different felony counts, all involving some type of inappropriate
and illegal sexual contact between a male person and somebody who is a
juvenile and, so, he plead guilty to four of those as I went over earlier.
And, Mr. Wagnon, as far as criminal history, is a first felony offender, so
he has a pending theft charge in Allen Parish as well, according to the
pre-sentence, that has not been dealt with at this point.

Substantial grounds do not exist to justify or excuse Mr. Agnon’s
conduct in this matter. He did not act under strong provocation by the
victim or others, matter of fact, he either - - he bought them alcohol and
got them drunk and then he would perform oral sex or anal sex on the
victim.

He’s approximately 27 years old, he seems to be in good health,
his employment is with Cajun Dave’s in Oberlin from the PSI, he
graduated high school and attended some college at McNeese State
University, does not - - PSI does not reveal any type of history of drugs
or alcohol abuse. He had not received any treatment in the past, he is a

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first time felony offender, though he does have another current pending
felony charge. Mr. Wagnon is not likely to respond favorably to
probationary treatment. There is an undue risk that during the period of a
suspended sentence or any type of probation that the defendant will
commit another crime. The defendant is in need of correctional
treatment or a custodial environment will be the most effective means to
this case and a lesser sentence will deprecate the seriousness of the
defendant’s offense.

Reference to jurisprudence involving similar considerations as that remarked

upon by the trial court reflects commensurate sentences. For example, in State v.

Jones, 15-0123 (La.App. 4 Cir. 12/2/15), 182 So.3d 251, writ denied, 16-0027 (La.

12/5/16), 210 So.3d 810, the defendant was originally charged with aggravated rape

and second degree kidnapping in the beating and rape of his former girlfriend, but the

charges were amended to aggravated second degree battery and forcible rape. A jury

convicted the defendant of second degree battery and simple rape.3 After the attack,

the victim suffered panic attacks, post-traumatic stress syndrome, depression, anxiety,

and required extensive therapy and medication. The defendant in that case had no

prior felony convictions, was thirty-two years old, had earned a high school diploma,

and had job prospects as a restaurant manager. The defendant received the maximum

sentence of twenty-five years for simple rape and five years for second degree battery.

The trial court ordered that the sentences be served concurrently.

In State v. Martinez, 39,332 (La.App. 2 Cir. 12/22/04), 890 So.2d 761, the

seventeen-year-old defendant was charged with two counts of oral sexual battery

involving two female juveniles. He entered a plea of guilty to one count, and the State

dismissed the other count. The defendant had no criminal history, but the trial court

found no other mitigating factors. He had been drinking on the evening of the single

incident. The second circuit noted the significant reduction in sentencing exposure

3
Louisiana Revised Statutes 14:43 now refers to “simple rape” as “third degree rape,” the
crime to which Defendant pled guilty.

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the defendant gained from his plea agreement and affirmed the trial court’s imposition

of the maximum ten-year sentence.

Finally, in Fruge, 179 So.3d 579, the defendant was convicted of the forcible

rape of one victim and the simple rape of a second victim two years later. On review,

the supreme court considered whether the trial court abused its sentencing discretion

by imposing the maximum, twenty-five year sentence for simple rape. In addition to

the observation that the defendant’s conduct in that case was violent, brutal, and

manifested deliberate cruelty, the supreme court pointed out that he was convicted of

“separate incidents during which he took advantage of different intoxicated young

women years apart.” Fruge, 179 So.3d at 584. The supreme court continued,

explaining:

Important to the consideration of the excessiveness of the simple
rape sentence is the fact that the district court ordered the sentences in
this case to run concurrently. Under La.C.Cr.P. art. 883,[4] it is presumed
that consecutive sentences are ordinarily appropriate for crimes, as in the
instant case, that do not form part of the same transaction or series of
transactions. Apparently because defendant was a first-time felony
offender, the district court, after considering the sentences imposed for
the forcible rape conviction and the simple rape conviction, believed that
the imposition of concurrent rather than consecutive sentences was
proper.

The crime of simple rape presupposes that the defendant has taken
advantage of the victim’s abnormal state of mind induced by intoxication
or any other cause. See La.R.S. 14:43(A). That a defendant may have
taken advantage of an unconscious or sleeping victim alone does not
place him among the most blameworthy of offenders committing the
crime of simple rape. Nevertheless, the evidence related to the similar
sexual assaults in this case shows that this defendant had engaged in a
pattern of preying on young, incapacitated women, a factor the district

4
Louisiana Code of Criminal Procedure Article 883 provides:

If the defendant is convicted of two or more offenses based on the same act or
transaction, or constituting parts of a common scheme or plan, the terms of
imprisonment shall be served concurrently unless the court expressly directs that
some or all be served consecutively. Other sentences of imprisonment shall be served
consecutively unless the court expressly directs that some or all of them be served
concurrently. In the case of the concurrent sentence, the judge shall specify, and the
court minutes shall reflect, the date from which the sentences are to run concurrently.

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court was free to consider in rendering the sentences in this case.
Considering defendant’s 2006 rape of J.H. in the context of his behavior
over an extended period of time, rather than in isolation, we are unable to
find that the district court manifestly abused its broad sentencing
discretion by imposing the maximum term of imprisonment for the rape
of J.H., particularly since the district court would have been justified in
ordering consecutive sentences in this case, thus, extending the period for
parole ineligibility. Under the facts of this particular case, the reduction
in sentencing exposure that defendant received by the district court’s
decision to order the sentences to run concurrently supports the
constitutionality of defendant’s simple rape sentence.

Id. at 584-86 (footnotes omitted).

Similar to Fruge, 179 So.3d 579, the defendant in this case received substantial

benefit from his plea agreement. Had he been convicted as originally charged, he

would have been exposed to possible sentences of up to ten years on each of five

counts of oral sexual battery, up to ten years for sexual battery, up to seven years and

a $5,000 fine for indecent behavior with a juvenile, and up to twenty-five years for

third degree rape. Thus, the defendant was exposed to a total possible sentence of

ninety-two years in prison and a $5,000 fine. Even on the charges to which the

defendant pled guilty, he was exposed to possible sentences totaling fifty-five years in

prison. However, and despite the time period over which the separate offenses

occurred, 5 the trial court imposed concurrent sentences, resulting in a significant

benefit to the defendant. See La.Code Crim.P. art. 883. See also Fruge, 179 So.3d

579.

Given the circumstances of the offenses as reflected in the record, the trial

court’s articulation of aggravating and mitigating circumstances, and the benefit

obtained through the defendant’s plea, we find that the trial court did not abuse its

5
The defendant was convicted of two counts of oral sexual battery occurring in July of 2016
and November of 2016 involving M.T. and a third count of oral sexual battery in January of 2017
involving C.V. Additionally, he was convicted of the third degree rape of C.V. in January of 2017.

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sentencing discretion. Rather, the record reveals an adequate factual basis for its

imposition of the defendant’s sentences.

Offender Notification Requirements

In his final assignment, the defendant argues that the trial court failed to advise

him of the lifetime reporting requirements of La.R.S. 15:544(B)(2)(a) 6 for those

convicted of third degree rape. The defendant requests that this matter be remanded

to the trial court with instructions to provide him with the proper written notification

of the duration and frequency of his sex offender registration.

With regard to registration and notification requirements, Louisiana Revised

Statutes 15:543(A) requires the trial judge to “provide written notification to any

person convicted of a sex offense and a criminal offense against a victim who is a

minor of the registration requirements and the notification requirements ….” The

record in this case includes a “Notification to Sex Offender” form that sets out four

options for the trial court to indicate the length of time a defendant must register as a

sex offender. Additionally, the defendant acknowledged his signature on the form at

the plea hearing and responded “No, sir[,]” when the trial court inquired whether he

had any questions concerning that form, or others, pertinent to the hearing. However,

6
Titled “Duration of registration and notification period[,]” La.R.S. 15:544(B) provides,
in pertinent part:

(2) Any of the following persons required to register pursuant to this Chapter
shall register and provide notification for the duration of their lifetime, even if
granted a first offender pardon, unless the underlying conviction is reversed, set aside,
or vacated, except for those convictions that were reversed, set aside, or vacated
pursuant to Code of Criminal Procedure Article 893 or 894, or a similar provision of
federal law or law from another state or military jurisdiction:

(a) A person required to register pursuant to this Chapter who was convicted
of an aggravated offense as defined in R.S. 15:541.

Under La.R.S. 15:541(2)(c)(ii), “[a]ggravated offense” includes a conviction of “third degree rape
under the provisions of R.S. 14:43 which occurred on or after August 1, 2015.”

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the included form does not reflect the designation of any of the four time periods

applicable to various offenses. Given that silence, we find merit in the defendant’s

assertion that the trial court did not provide adequate notice to him that his guilty plea

to third degree rape requires lifetime registration.

For that reason, we remand this matter with instructions to the trial court to

notify the defendant of his notification and registration requirements by sending

written notice to him within ten days of this opinion and to file written proof of the

defendant’s receipt of the notice in the record. See, e.g., State v. Trice, 14-636

(La.App. 5 Cir. 12/16/14), 167 So.3d 89; State v. Morning, 49,300 (La.App. 2 Cir.

10/1/14), 149 So.3d 925, writ denied, 14-2354 (La. 2/19/16), 186 So.3d 1179.

DECREE

For the foregoing reasons, the convictions and sentences of the defendant,

Christopher Lee Wagnon, are affirmed. We remand this matter with instructions to

the trial court to notify the defendant of his notification and registration requirements

for sex offenders by sending written notice to him within ten days of rendition of this

opinion and to file written proof of the defendant’s receipt of the notice in the record

AFFIRMED. REMANDED WITH INSTRUCTIONS.

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