State of Louisiana v. Edward N. Wide

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1112

STATE OF LOUISIANA

VERSUS

EDWARD N. WIDE

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 6577-07
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

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DAVID E. CHATELAIN*
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and David E. Chatelain,
Judges.

AFFIRMED.

John F. DeRosier
District Attorney
Carla S. Sigler
Assistant District Attorney
1020 Ryan Street
Lake Charles, Louisiana 70601
(337) 437-3400
Counsel for:
State of Louisiana

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

G. Paul Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, Louisiana 70598-2389
(337) 237-2537
Counsel for Defendant/Appellant:
Edward N. Wide

CHATELAIN, Judge Pro Tempore.

The defendant appeals, asserting that his sentence for identity theft over $1000

is excessive. We affirm.

FACTS

On March 21, 2007, the defendant, Edward N. Wide, was charged by bill of

information with identity theft over $1000, a violation of La.R.S. 14:67.16. He pled

guilty to the charge on June 27, 2008, in exchange for the State’s agreement not to

prosecute him as a habitual offender. See La.R.S. 15:529.1.

At his sentencing hearing, the defendant admitted that he attempted to use false

identification bearing the victim’s name, John Zolinger, III, to withdraw $4400 from

the victim’s savings account at a Whitney National Bank in Calcasieu Parish. The

trial court sentenced him to ten years at hard labor with credit for time served. He

filed a motion to reconsider sentence, urging that his sentence is unconstitutionally

excessive; the motion was denied. He then perfected this appeal.

EXCESSIVE SENTENCE

The defendant argues, as he did in his motion to reconsider sentence, that his

sentence is excessive.1 He claims in brief to this court that his conduct amounts to an

1
Even though the defendant does not specify this as an assignment of error, he asserts that
the State did not set forth a factual basis for his guilty plea at the time that he entered his plea or
when he was sentenced. However, our review of the record shows that the State outlined the
following facts during the proceeding at which the defendant pled guilty:

Next is Edward Wide. January 26, 2007, he entered the Whitney Bank here
in Calcasieu Parish and using the name John Zolinger, III, had a fake ID, a Texas ID.

He attempted to withdraw $4400 from the victim’s savings account. The
victim had apparently been pick-pocketed while at a game at the dome sometime
earlier than this.

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attempt, not a theft, because he was arrested before the bank transferred any funds to

him.2

The defendant did not identify any specific ground in his motion to reconsider

sentence. He merely stated that his “sentence is unconstitutionally excessive.” The

defendant’s failure to set forth a specific ground for his motion to reconsider resulted

in only a claim of constitutional excessiveness being preserved for appellate review.

See La.Code Crim.P. art. 881.1(E). See also, State v. Mims, 619 So.2d 1059

(La.1993); State v. West, 01-969 (La.App. 3 Cir. 12/12/01), 801 So.2d 619.

Therefore, the defendant’s claim that his sentence is excessive because his conduct

amounted to an attempted theft, not a theft, was not preserved for review on appeal.

The offense of identity theft when the thing of value amounts to $1000 or more

is punishable by imprisonment “with or without hard labor, for not more than ten

years, or [a fine of] not more than ten thousand dollars, or both.” La.R.S.

14:67.16(C)(1). Thus, although the defendant did not receive a fine, he received the

maximum prison sentence allowed for this crime.

In State v. Barling, 00-1241, 01-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779

So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, this court set

forth the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article 1], § 20 guarantees that, “[n]o law
shall subject any person to cruel or unusual punishment.” To constitute

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Identity theft is defined as:

[T]he intentional use or possession or transfer or attempted use with fraudulent intent
by any person of any personal identifying information of another person to obtain,
possess, or transfer, whether contemporaneously or not, credit, money, goods,
services, or any thing else of value without the authorization or consent of the other
person.

La.R.S. 14:67.17(B) (emphasis added).

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an excessive sentence, the reviewing court must find the penalty so
grossly disproportionate to the severity of the crime as to shock our
sense of justice or that the sentence makes no measurable contribution
to acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La. 6/30/00); 765 So.2d 1067. The relevant question is
whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, cert. denied, 519 U.S.
1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Thereafter, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d

786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061, this court addressed the

analysis used when deciding whether a sentence shocks our sense of justice or makes

no meaningful contribution to acceptable penal goals, explaining:

[A]n appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for
similar crimes. State v. Smith, 99-0606 (La. 7/6/00), 766 So.2d 501.
While a comparison of sentences imposed for similar crimes may
provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances presented by each
case.” State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, 958.

When sentencing the defendant in the present case, the trial court observed,

after reviewing the presentence investigation report, “I can’t let you stay out on the

streets. You get in trouble every time you turn around.” As reflected in the record,

the defendant was on parole for manslaughter when he attempted to use a stolen bank

card to withdraw $4400 from Mr. Zolinger’s bank account. If not for the State’s

agreement not to prosecute him as a habitual offender in exchange for his guilty plea,

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the defendant’s potential sentence would have been imprisonment with or without

hard labor for not less than five years and not more than twenty years. La.R.S.

15:529.1(A)(1)(a); La.R.S. 14:67.16(C)(1). Accordingly, the defendant substantially

benefitted by the State’s agreement not to prosecute him as a habitual offender in

exchange for his guilty plea, cutting his potential sentence in half. Under these

circumstances, we cannot say the defendant’s sentence is excessive.

DISPOSITION

The defendant’s sentence is affirmed.

AFFIRMED.

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