Opinion
NO. 2012 KA 0955
02-15-2013
STATE OF LOUISIANA v. WINSTON WESTLEY
HON. HILLAR C. MOORE, III DISTRICT ATTORNEY DYLAN C. ALGE ASSISTANT DISTRICT ATTORNEY BATON ROUGE, LA ATTORNEYS FOR STATE OF LOUISIANA MARK G. SIMMONS BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLANT WINSTON WESTLEY
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
and for the Parish of East Baton Rouge, Louisiana
Trial Court No. 03-08-0206
Honorable Anthony Marabella, Judge
HON. HILLAR C. MOORE, III
DISTRICT ATTORNEY
DYLAN C. ALGE
ASSISTANT DISTRICT ATTORNEY
BATON ROUGE, LA
ATTORNEYS FOR
STATE OF LOUISIANA
MARK G. SIMMONS
BATON ROUGE, LA
ATTORNEY FOR
DEFENDANT-APPELLANT
WINSTON WESTLEY
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
PETTIGREW , J.
The defendant, Winston Westley, was charged in the instant bill of information (bill no. 03-08-0206), with felony theft of $300 or more, but less than $500, in violation of La. R.S. 14:67B(2) (Count I), and felony theft over $500, in violation of La. R.S. 14:67B(1) (Count 2). In bill of information no. 04-10-0228, the defendant was charged with forgery, in violation of La. R.S. 14:72. In bill of information no. 09-09-0579, the defendant was charged with four felony counts of issuing worthless checks in an amount of $500 or more, in violation of La. R.S. 14:71C. Finally, 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). Initially, he pled not guilty. Thereafter, pursuant to a plea bargain agreement, the defendant pled guilty to the instant charge in Count 1. 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 the instant bill of information). 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 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. For his conviction of forgery (bill no. 04-10-0228), the defendant received a consecutive sentence of ten years at hard labor. For his 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. Finally, 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. Additionally, the trial court ordered that the defendant pay over $15,000.00 in restitution to several of his victims. The defendant filed a single motion to reconsider all of 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 has appealed the instant conviction and sentence, alleging, as his only assignment of error, that the trial court erred in imposing an excessive, consecutive sentence and in failing to comply with the sentencing guidelines of La. Code Crim. P. art. 894.1. We affirm the conviction and sentence.
The defendant has separately appealed his other convictions and sentences. See State v. Westley, 2012-0954 (La. App. 1 Cir. 2/19/13), State v. Westley, 2012-0956 (La. App. 1 Cir. 2/19/13), and State v. Westley, 2012-0957 (La. App. 1 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 offense. According to the bill of information, on July 17, 2007, the defendant committed theft of money from Fidelity Bank. However, offense reports in the record and the presentence investigation report (PSI), indicate that in July and August 2007, the defendant created and negotiated several counterfeit checks at various businesses in Baton Rouge, Louisiana. The checks, drawn on Fidelity Bank, contained the account number of an actual Fidelity customer, Edith Benson, but were titled "J. V. Automotive, INC." as the account holder. While an offense report indicates Fidelity had fraudulent checks totaling over $3,700.00, at the guilty plea proceeding, the prosecutor indicated Fidelity had been paid in full in the amount of $570.00.
ASSIGNMENT OF ERROR
In his only assignment of error, the defendant contends that the trial court erred in imposing an excessive sentence and in failing to comply with the sentencing guidelines of La. Code Crim. 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. He concludes 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. 1 Or.), 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. 1 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. 1 Cir. 1990).
Before imposing sentence on December 14, 2011, the trial court noted that the defendant's sentencing had originally been scheduled for July 11, 2011, but that the defendant failed to appear. The trial court further noted that although the defendant was not supposed to leave the State of Louisiana, he had been located in Georgia after an arrest there. The trial 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 a lesser sentence would deprecate the seriousness of the defendant's crime. Our review of the sentencing transcript indicates that the trial court adequately complied with the Article 894.1 guidelines.
For his instant conviction of felony theft of $300 or more, but less than $500, the defendant was exposed to a maximum sentence of two years at hard labor, a fine of not more than $2,000, or both. See La. R.S. 14:67B(2) (prior to its amendment by 2010 La. Acts No. 585, § 1). The defendant received a consecutive, maximum sentence of two years at hard labor, but no fine was 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, p. 16 (La. App. 1 Cir. 3/31/00), 764 So.2d 1027, 1037, writ denied, 2000-0958 (La. 3/9/01), 786 So.2d 113.
The defendant certainly is the worst type of offender since he committed so many separate crimes. As for the instant offense, while not the most serious when considered individually, it was the most serious in the sense that it was repeated by a defendant who obviously has 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. Code Crim. P. art. 883; State v. Freeman, 577 So.2d 216, 219 (La. App. 1 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.l (La. App. 1 Cir. 1987).
While classified in the PSI as a third felony offender, it appears from the defendant's record 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 offense, 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 sentence is not excessive individually or as part of a total sentence of fifty years. This assignment of error is meritless.