Date: 02-27-2016

Case Style: State of Louisiana v. Christopher W. Lindsey

Case Number: 50,324-KA

Judge: Henry N. Brown, Jr., J. Jay Caraway

Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: John McIntosh Lancaster, Penny Wise Douciere, Kenneth Douglas Wheeler

Defendant's Attorney: George Ross

Description: On February 3, 2013, the defendant, Christopher Wayne Lindsey,
confronted David Easterling at the residence of Easterling’s girlfriend,
Kimberly Peavy, who also happened to be the defendant’s estranged wife.
As Easterling attempted to leave Peavy’s residence in his vehicle, Lindsey
reached through the vehicle window and stabbed Easterling in the left arm.
Easterling lost consciousness, was treated at St. Francis Medical Center, and
lost the full use of his left arm for at least a month. Easterling told
investigating officers he believed that he would have been stabbed in the
neck had he not attempted to lean out of Lindsey’s way. Peavy informed the
investigators that she received a text message from Lindsey following the
stabbing, which stated that Easterling “had gotten lucky this time.” Lindsey
was charged by bill of information with aggravated second degree battery,
in violation of La. R.S. 14:34.7.
Trial court docket number F-2014-118.1
2
In February 2014, after selection of a jury, the trial court was advised
that a plea agreement had been reached. Under the plea agreement, Lindsey
agreed to plead guilty as charged to aggravated second degree battery, and
in exchange, the state would recommend a 15-year sentence, the maximum
sentence available, and would not charge Lindsey as a habitual offender.
Additionally, it was agreed that a presentence investigation (“PSI”) would
be ordered by the trial court. Lindsey was advised of and waived his Boykin
rights, and pled guilty to aggravated second degree battery. The trial court
specifically confirmed that Lindsey understood that he waived the right to
appeal his conviction and that, while the state recommended a sentence of
15 years, the trial court retained the discretion to impose a different
sentence. The trial court accepted Lindsey’s plea and scheduled a
sentencing hearing for April 2, 2014. The PSI was ordered, and Lindsey
was released on bond.
Lindsey failed to appear for the sentencing hearing on April 2, 2014,
and a bench warrant was issued. He was subsequently charged with
jumping bail, in violation of La. R.S. 14:110.1. The sentencing hearing 1
was reset for June 4, 2014, and Lindsey appeared on that date. As to
Lindsey’s plea agreement on his initial offense, the following exchange took
place:
The Court: At that time you entered a plea of guilty under a plea agreement whereby your sentence would have a fifteen year cap. And that sentencing was set for some time in April, . . .
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The State: Judge, we can look real quick–actually Judge, it was not a fifteen year cap, it was a plea of guilty to the charge with no agreement on sentence. And it has a fifteen year sentence.
The Court: Okay. I’m sorry. Was that your understanding?
Lindsey: Yes, sir.
Lindsey also admitted that there was no legal or physical impediment to him
appearing on April 2nd. Noting Lindsey’s extensive criminal history and
anger issues, the trial court sentenced him to serve 15 years at hard labor for
his aggravated second degree battery conviction.
On January 28, 2015, Lindsey appeared in order to plead guilty to the
offense of jumping bail. Under the plea agreement for that offense, Lindsey
would plead guilty to jumping bail and receive a two-year sentence to be
served consecutively to any other sentence. The state also agreed that,
although Lindsey would be charged as a fourth-felony habitual offender, he
would receive a sentence of 20 years which “would incorporate any and all
charges sentences [sic] he would be exposed to and he wouldn’t be exposed
to any other arising out of this situation.” Lindsey agreed that he would
plead guilty to jumping bail, to being a fourth-felony habitual offender, and
the 20-year sentence would be imposed immediately. The trial court
confirmed that “this sentence is consecutive, . . . but what we discussed
about [his] habitual offender status would incorporate all [Lindsey’s]
charges and it would be a single sentence.” Lindsey was advised of and
waived his Boykin rights and pled guilty to jumping bail. He was sentenced
to two years’ imprisonment and informed that he would not have the right to
appeal the sentence.
Trial court docket number F-2015-17.2
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A habitual offender bill was immediately filed. It listed the 2
following felony convictions:
(1) possession of pseudoephedrine, Fourth Judicial District Court, Parish of Ouachita, docket number 05-F-0282, May 25, 2005; (2) attempted theft of anhydrous ammonia, Twenty-Third Judicial District Court, Parish of St. James, docket number 02-CR003590, August 10, 2005;
(3) second degree battery, Fifth Judicial District Court, Parish of Franklin, docket number 2007-852F, January 28, 2008;
(4) aggravated second degree battery, Fifth Judicial District Court, Parish of Richland, docket number F-2013-59, February 2, 2013; and,
(5) jumping bail, Fifth Judicial District Court, Parish of Richland, docket number F-2014-118, January 28, 2015.
Pursuant to the plea agreement, Lindsey would plead guilty and receive a
sentence of 20 years. After being advised of his Boykin rights, Lindsey
admitted to being a fourth-felony habitual offender. The trial court then set
aside the sentences for Lindsey’s aggravated second degree battery
conviction and jumping bail convictions and imposed a new, total sentence
of 20 years’ imprisonment.
On February 2, 2015, another hearing was held, wherein the trial
court noted that it was clarifying that Lindsey was serving a 15-year
sentence for the aggravated second degree battery and a 20-year sentence
under the habitual offender statute to run concurrently. On February 11,
2015, Lindsey filed a pro se notice of intent to appeal regarding the
aggravated second degree battery conviction. The motion was granted.
Lindsey also filed a pro se motion to review sentence which
challenged the validity of the predicate offenses that formed the basis of the
The appeal record was lodged on June 19, 2015. On October 1, 2015, Lindsey’s3 appellate counsel filed a motion to supplement his appeal record with copies of the bills of information in trial court docket numbers F-2014-118 (jumping bail) and F-2015-17 (habitual offender). Since a defendant is entitled to a review of his conviction upon a complete record under La. Const. Art. I § 19, and because Lindsey’s convictions were somewhat intertwined and shared transcripts, we ordered that the appeal record be supplemented with duplicate certified copies of the bills of information in trial court docket numbers F-2014-118 and F-2015-17. Those documents have been received and are contained in the record. The record does not contain a motion for appeal or an order of appeal in the jumping bail case. On June 4, 2014, Lindsey was sentenced on the conviction of aggravated second degree4 battery. His notice of intent to appeal was not filed until February 11, 2015, and was untimely under La. C. Cr. P. art. 914. However, given that the trial signed an order granting the appeal and the state did not complain of any procedural irregularities, dismissal of the appeal and a remand to the trial court to cure any defects under State v. Counterman, 475 So. 2d 336 (La. 1985), would only prolong the delay without serving any useful purpose. See State v. Wagner, 2007-0860 (La. 03/14/08), 976 So. 2d 706. 5
habitual offender bill. Although this motion was filed in the aggravated
battery record, it complained of the sentence imposed for the conviction of
jumping bail. The trial court denied the motion. The denial was also filed
in the record for the aggravated battery conviction. This appeal ensued.3
DISCUSSION
Sentencing
In his first assignment of error, Lindsey argues that the trial court
erred in imposing an unconstitutionally harsh and excessive sentence for his
conviction of aggravated second degree battery. On review, the appellant 4
argues that the first plea agreement did not include an agreed-upon
sentence, but merely a sentencing recommendation from the state. He argues
that, although a PSI was ordered and reviewed, the trial court’s discussion
in light of the provisions of La. C. Cr. P. art. 894.1 is “sparse.” Lindsey
asserts that nothing in the trial court’s discussion sufficiently particularized
the sentence to fit the defendant and the offense.
Review of Sentence on Appeal
Initially, we must determine whether Lindsey is entitled to a review of
his sentence. Louisiana C. Cr. P. art. 881.2(A)(2) provides, “The defendant
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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 provision applies to both agreed-upon sentences and sentencing
ceilings, ranges and caps. State v. Young, 1996-0195 (La. 10/15/96), 680
So. 2d 1171; State v. Foster, 42,212 (La. App. 2d Cir. 08/15/07), 962 So. 2d
1214. However, jurisprudence recognizes that the right to seek review of a
sentence imposed in conformity with a plea agreement may be retained by
the defendant at the time a guilty plea is entered.
In State v. Foster, supra, the defendant pled guilty with a sentencing
cap, but the trial court specified that he would waive the right of appeal,
“except as to the amount of the sentence.” Considering that statement by
the trial court, this Court found that the defendant did not contemplate that
by pleading guilty he waived his right to appeal his sentence for
excessiveness. This Court specifically overruled a previous opinion and
determined that the defendant had a constitutional right of review under La.
Const. Art. I, § 19, which had not been “intelligently waived.” Id. at 1218.
In State v. Jones, 48,774 (La. App. 2d Cir. 01/15/14), 130 So. 3d
1033, the record showed that the defendant agreed to the sentence cap and
knew that his sentence would be 15 years. This Court held that, because the
defendant was made aware that he was waiving his right to appeal by
pleading guilty, he was not entitled to review of his sentence. Nevertheless,
this Court acknowledged that defendants have been afforded review of their
sentences in cases where the issue is close. Id. at 1036. Similarly, in State
v. Wright, 49,882 (La. App. 2d Cir. 07/08/15), 169 So. 3d 835, this Court
held that, because the defendant agreed during his plea that he would not be
7
able to appeal, he was not entitled to appellate review of his sentence. The
record showed that during the plea hearing, the defendant was advised that
there was a sentencing cap, and he would not be entitled to an appeal from
his sentence. This Court found that the trial court’s statements to the
contrary at the sentencing hearing did not influence the defendant’s decision
to plead guilty or interfere with the enforceable cap. Id. at 838.
Here, the plea agreement regarding the charge of aggravated second
degree battery did not include an agreed-upon sentence; thus it is subject to
appellate review. The signed plea agreement noted that the state “is
recommending a sentence of 15 years,” the maximum sentence under La.
R.S. 14:34.7. The transcripts reveal that the trial court specifically noted
that, although the state recommended a 15-year sentence, the trial court
retained the right and discretion to deviate from that recommendation.
Lindsey confirmed that it was his understanding that, while he waived the
right to appeal his conviction, there was no agreement as to the sentence or
sentencing cap. Here, Lindsey did not contemplate that he would be
waiving his right to appeal his sentence by pleading guilty. See Foster,
supra. In contrast to Jones, supra, and Wright, supra, Lindsey did not
confirm or agree that he would not be able to appeal his sentence. Because
the trial court did not specify that the right to appeal the sentence would be
waived by pleading guilty and because the state specified that an agreement
as to the sentence was not part of the plea agreement, Lindsey is entitled to
appellate review of his sentence related to his conviction for aggravated
second degree battery.
8
Excessive Sentence
An appellate court utilizes a two-pronged test in reviewing a sentence
for excessiveness. First, the record must show that the trial court took
cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge
is not required to list every aggravating or mitigating circumstance so long
as the record reflects that he adequately considered the guidelines of the
article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Lathan, 41,855
(La. App. 2d Cir. 02/28/07), 953 So. 2d 890, writ denied, 2007-0805 (La.
03/28/08), 978 So. 2d 297. The articulation of the factual basis for a
sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical
compliance with its provisions. Where the record clearly shows an adequate
factual basis for the sentence imposed, remand is unnecessary even where
there has not been full compliance with La. C. Cr. P. art. 894.1. State v.
Lanclos, 419 So. 2d 475 (La. 1982); State v. Swayzer, 43,350 (La. App. 2d
Cir. 08/13/08), 989 So. 2d 267, writ denied, 2008-2697 (La. 09/18/09), 17
So. 3d 388. The important elements which should be considered are the
defendant’s personal history (age, family ties, marital status, health,
employment record), prior criminal record, seriousness of the offense, and
the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981);
State v. Ates, 43,327 (La. App. 2d Cir. 08/13/08), 989 So. 2d 259, writ
denied, 2008-2341 (La. 05/15/09), 8 So. 3d 581. There is no requirement
that specific matters be given any particular weight at sentencing. State v.
Shumaker, 41,547 (La. App. 2d Cir. 12/13/06), 945 So. 2d 277, writ denied,
2007-0144 (La. 09/28/07), 964 So. 2d 351.
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Second, the court must determine whether the sentence is
constitutionally excessive. A sentence violates La. Const. Art. I, § 20, if it
is grossly out of proportion to the seriousness of the offense or nothing
more than a purposeless and needless infliction of pain and suffering. State
v. Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355
(La. 1980). A sentence is considered grossly disproportionate if, when the
crime and punishment are viewed in light of the harm done to society, it
shocks the sense of justice. State v. Weaver, 2001-0467 (La. 01/15/02), 805
So. 2d 166; State v. Robinson, 40,983 (La. App. 2d Cir. 01/24/07), 948 So.
2d 379.
Maximum sentences are generally reserved for the “most egregious
and blameworthy offenders in a class.” As a general rule, maximum or near
maximum sentences are reserved for the worst offenders and the worst
offenses. State v. Cozzetto, 2007-2031 (La. 02/15/08), 974 So. 2d 665;
State v. Hogan, 47,993 (La. App. 2d Cir. 04/10/13), 113 So. 3d 1195, writ
denied, 2013-0977 (La. 11/08/13), 125 So. 3d 445. The trial court is given
wide discretion in the imposition of sentences within the statutory limits.
Such a sentence will not be set aside as excessive absent a manifest abuse of
that discretion. State v. Williams, 2003-3514 (La. 12/13/04), 893 So. 2d 7.
Louisiana R.S. 14:34.7(C) provides, “Whoever commits the crime of
aggravated second degree battery shall be fined not more than ten thousand
dollars or imprisoned, with or without hard labor, for not more than fifteen
years, or both.”
Lindsey argues that the imposed sentence of 15 years’ imprisonment
for a conviction of aggravated second degree battery, the maximum
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sentence, is unconstitutionally excessive. The trial court is not required to
list every aggravating or mitigating circumstance. The record in this case
reflects that the trial court took notice and considered the relevant factors
under La. C. Cr. P. art. 894.1. Specifically, the court reviewed the PSI,
which included a narrative report of the investigation into this offense. The
PSI contained statements from the victim, the defendant, and witnesses.
The record, combined with the PSI, shows an adequate factual basis for the
sentence imposed. The trial court noted that Lindsey had an extensive
criminal history, with convictions for simple kidnapping, second degree
battery, drug possession, and aggravated second degree battery.
The instant conviction was initially charged as attempted second
degree murder, but reduced to aggravated second degree battery. The PSI
indicates that Lindsey chased the victim from a residence, with children
present, and stabbed the victim as he attempted to escape in a vehicle. The
victim reported that he suffered extensive injuries, causing him to lose
function in his left arm. Based upon his criminal history, the trial court
noted that Lindsey was quick to anger and would “lose it” when angry. The
trial court found that he was “capable of being a danger to the public
because of [his] temper.” The trial court also noted that some people
interviewed spoke highly of Lindsey, indicating that he was a hard worker.
A lesser sentence would deprecate the seriousness of the offense and
Lindsey’s history indicates that, if released, he would likely commit another
offense. As such, the sentence imposed is not grossly disproportionate to
the seriousness of the offense committed. This assignment is without merit.
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Sentence for Jumping Bail
In his second assignment of error, Lindsey argues that the trial court
erred in imposing an unconstitutionally harsh and excessive sentence for his
conviction of jumping bail. Although the record has been supplemented to
include copies of the bills of information in trial court docket numbers F
2014-118 (jumping bail) and F-2015-17 (habitual offender), the record does
not contain a motion for appeal or an order of appeal in the jumping bail
case. Lindsey filed an appeal only as to the conviction and sentence for the
instant offense of aggravated second degree battery, trial court docket
number F-2013-59. As such, this court lacks jurisdiction to review the
sentence for Lindsey’s conviction of jumping bail, and his assignment of
error will not be considered.
Error Patent
After accepting the guilty pleas for jumping bail and as a fourth
felony habitual offender, the trial court immediately imposed Lindsey’s
sentences on the offenses. There is no showing on the record that defendant
waived the delay required by La. C. Cr. P. art. 873. In this case, the
defendant has not objected to the trial court’s failure to observe the delay,
and there was no showing of prejudice. Thus, the trial court’s failure to
observe the statute was harmless error. See State v. Roberson, 40,809 (La.
App. 2d Cir. 04/19/06), 929 So. 2d 789.
Additionally, although this Court lacks the jurisdiction to review the
conviction of jumping bail and habitual offender adjudication, the state’s
use of the conviction of aggravated battery in its habitual offender bill is in
violation of La. R.S. 15:529.1, which provides, in part:
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A. Any person who, after having been convicted within this state of a felony . . . thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows. . . . (Emphasis added).
This portion of the statute, and the jurisprudence interpreting it, requires
that the prior conviction must precede the commission of the principal
offense in order to be used as a predicate to enhance a defendant’s status as
a multiple offender. Also, in order to be used as predicate offenses in
habitual offender adjudications, prior convictions must be final. State v.
Jones, 49,948 (La. App. 2d Cir. 09/30/15), 178 So.3d 1075; State v. Davis,
48,161 (La. App. 2d Cir. 08/07/13), 121 So. 3d 1207, writ denied, 2013
2145 (La. 03/14/14), 134 So. 3d 1194.
In this case, the habitual offender bill listed four predicate felonies,
including the conviction for aggravated second degree battery, and the
instant offense of jumping bail. Lindsey was charged with jumping bail
based upon the failure to appear at the April 2, 2014 sentencing hearing on
the conviction of aggravated second degree battery. At the time of the
offense upon which the habitual offender bill of information was based,
jumping bail on April 2, 2014, Lindsey had not yet been sentenced on the
conviction of aggravated second degree battery, and his conviction was not
yet final. As such, the conviction of aggravated second degree battery could
not be used as a predicate offense in the habitual offender bill of
information. However, the habitual offender bill listed three other prior
felony convictions and the instant offense of jumping bail. As such, the bill
of information still supported the adjudication as a fourth-felony habitual
13
offender, which carries the same minimum sentence of 20 years’
imprisonment.

Outcome: The inclusion of the conviction of aggravated second degree
battery in the habitual offender bill of information is harmless error.

For the foregoing reasons, the conviction and sentence of Christopher
Wayne Lindsey are affirmed.

AFFIRMED.

Plaintiff's Experts:

Defendant's Experts:

Comments: