Opinion
2012 KA 0957
02-15-2013
STATE OF LOUISIANA v. WINSTON DARRELL WESTLEY
Hon. Hillar Moore, DA Melissa Morvant, ADA Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Mark G. Simmons Baton Rouge, Louisiana Counsel for Defendant-Appellant Winston Darrell Westley
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 09-09-0579, SECTION I, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
HONORABLE ANTHONY MARABELLA, JUDGE
Hon. Hillar Moore, DA
Melissa Morvant, ADA
Baton Rouge, Louisiana
Counsel for Appellee
State of Louisiana
Mark G. Simmons
Baton Rouge, Louisiana
Counsel for Defendant-Appellant
Winston Darrell Westley
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
Disposition: CONVICTIONS AND SENTENCES AFFD3MED.
KUHN, J.
The defendant, Winston Darrell Westley, was charged in the instant bill of information (bill no. 09-09-0579), with four felony counts of issuing worthless checks in an amount of $500 or more, in violation of La. R.S. 14:71C. In bill of information no. 03-08-0205, the defendant was charged with felony theft of $500 or more, in violation of La. R.S. 14:67B(1). In bill of information no. 03-08-0206, the defendant was charged with felony theft of $300 or more, but less than $500, in violation of La. R.S. 14:67B(2) (count 1), and felony theft over $500, in violation of La. R.S. 14:67B(1) (count 2). Finally, in bill of information no. 04-10-0228, the defendant was charged with forgery, in violation of La. R.S. 14:72. Initially, he pled not guilty. Thereafter, pursuant to a plea bargain agreement, the defendant pled guilty to the instant charges. At the same time, the defendant entered guilty pleas to the charges listed in the other three bills of information (with the exception of felony theft over $500, listed as count 2 in bill no. 03-08-0206). In exchange for these guilty pleas, the prosecutor agreed to dismiss two bills of information (reckless operation, expired inspection tag, driving under suspension, and no auto insurance, charged in bill no. 08-08-0881, and felony theft, charged in bill no. 08-08-0306), and further agreed not to pursue habitual offender proceedings. However, the trial court made no agreement as to the sentences to be imposed.
The defendant received the following sentences. For his instant convictions of four counts of issuing worthless checks (bill no. 09-09-0579), the defendant received four consecutive sentences of seven years at hard labor. For his conviction of felony theft of $500 or more (bill no. 03-08-0205), the defendant received a consecutive sentence of ten years at hard labor. For his conviction of felony theft of $300 or more, but less than $500 (count 1 under bill no. 03-08-0206), the defendant received a consecutive sentence of two years at hard labor. Finally, for his conviction of forgery (bill no. 04-10-0228), the defendant received a consecutive sentence of ten years at hard labor. Additionally, the trial court ordered that the defendant pay restitution to several of his victims, totaling over $15,000.00. The defendant filed a single motion to reconsider all his sentences, complaining of excessiveness and that the trial court failed to state sufficient reasons for imposition of consecutive sentences. The trial court denied the motion to reconsider sentence.
The defendant now appeals the instant convictions and sentences, alleging in his only assignment of error that the trial court erred in imposing excessive, consecutive sentences and in failing to comply with the sentencing guidelines of La. C.Cr.P. art. 894.1. For the following reasons, the defendant's convictions and sentences are affirmed.
The defendant has separately appealed his other convictions and sentences. See State v. Westley , 12-0954 (La. App. 1st Cir. 2/19/13), State v. Westley , 12-0955 (La. App. 1st Cir. 2/19/13), and State v. Westley , 12-0956 (La. App. 1st Cir. 2/19/13), also decided this date.
Because there was no trial, and the defendant pled guilty to a total of seven separate offenses in the same proceeding, the record contains little factual information about the instant offenses, According to the bill of information, between October 6, 2007 and January 27, 2009, the defendant issued worthless checks, in amounts of $500 or more, to Home Furniture, Simple Simon, and the City of Baton Rouge. While it was noted at the guilty plea proceeding that the defendant had paid $3,000 in restitution toward these offenses, the trial court ordered the defendant at sentencing to pay over $3,600 in restitution to Simple Simon and over $3,900 in restitution to Home Furniture.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant contends that the trial court erred in imposing excessive sentences and in failing to comply with the sentencing guidelines of La. C.Cr.P. art. 894.1. Specifically, the defendant complains that the trial court failed to state appropriate reasons for imposing maximum, consecutive sentences totaling fifty years for all of the offenses to which he pled guilty. He argues that his incarceration will impede his ability to pay full restitution to the victims.
The Code of Criminal Procedure sets forth items to be considered by the trial court before imposing sentence. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the guidelines. State v. Herrin , 562 So.2d 1, 11 (La. App. 1st Cir.), writ denied, 565 So.2d 942 (La. 1990). In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Watkins , 532 So.2d 1182,1186 (La. App. 1st Cir. 1988).
Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado , 367 So.2d 762, 767 (La. 1979). However, the trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Latiolais , 563 So.2d 469, 473 (La. App. 1st Cir. 1990).
Before imposing sentence on December 14, 2011, the trial court noted this sentencing had originally been scheduled for July of 2011, and the defendant was not supposed to leave the State of Louisiana, but that he had been located in Georgia after an arrest there. The court referenced the PSI, which indicated that the defendant was classified as a third-felony offender. The trial court reviewed the facts of the offenses and the defendant's criminal record, which included felony convictions for cocaine and issuing worthless checks. The trial court also noted that the defendant has been arrested over seventeen times for theft-related offenses. In imposing sentence, the trial court found probation was not appropriate, concluded the defendant was in need of correctional treatment, and stated that lesser sentences would deprecate the seriousness of the defendant's crimes. Our review of the sentencing transcript indicates that the trial court adequately complied with the Article 894.1 guidelines.
For each of his instant convictions of issuing worthless checks in an amount of $500 or more, the defendant was exposed to a maximum sentence of ten years at hard labor, a fine of not more than $3,000, or both. See La. R.S. 14:71C (prior to its amendment by 2010 La. Acts No. 585, § 1). The defendant received four consecutive sentences of seven years at hard labor, but no fines were imposed. This Court has stated that the maximum sentence may be imposed only in cases involving the most serious offenses and worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Hilton , 99-1239 (La. App. 1st Cir. 3/31/00), 764 So.2d 1027, 1037, writ denied, 00-0958 (La. 3/9/01), 786 So.2d 113.
The defendant did not receive maximum sentences for the instant offenses, although the sentences were in the upper range for this offense. As for the instant offenses, while not the most serious when considered individually, they are serious in the sense that they were repeated by a defendant who has displayed no regard for his victims and no intent to follow the rules of society. Furthermore, the consecutive sentences that were imposed clearly were justified since the defendant posed an unusual risk to the safety of the public due to his repeated criminality. See La. C.Cr.P. art. 883; State v. Freeman , 577 So.2d 216, 219 (La. App. 1st Cir.), writ denied, 580 So.2d 668 (La. 1991). The PSI noted the defendant had a history of financial crimes dating back to 1999.
Finally, we note that in his brief to this Court, the defendant states that he "pled guilty as charged without the benefit of a plea bargain." This statement is inaccurate. The defendant significantly reduced his sentencing exposure by pleading guilty. As previously noted, in exchange for his guilty pleas, not only were several other charges dismissed, but he avoided possible exposure to enhanced sentences as a third or fourth-felony habitual offender under La. R.S. 15:529.1. See State v. Abiodun , 509 So.2d 821, 823 n.1 (La. App. 1st Cir. 1987).
While classified in the PSI as a third-felony offender, it appears from the defendant's record that he could have been charged as a fourth-felony habitual offender, exposing him to a life sentence.
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Considering the circumstances of the instant offenses, the defendant's prior criminal record, his favorable plea bargain agreement, and the reasons for sentencing given by the trial court, we conclude that the instant sentences are not excessive individually or as part of a total sentence of fifty years. This assignment of error is meritless.
CONVICTIONS AND SENTENCES AFFIRMED.