State of Louisiana v. Wade A. Tolliver AKA Wade W. Tolliver, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1355

STATE OF LOUISIANA

VERSUS

WADE A. TOLLIVER A/K/A WADE W. TOLLIVER, JR.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR127549
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Phyllis M. Keaty, Judges.

AFFIRMED.

Michael Harson
District Attorney - 15th Judicial District Court
P. O. Box 3306
Lafayette, LA 70502-3306
Telephone: (337) 232-5170
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Brent A. Hawkins
Louisiana Appellate Project
P. O. Box 3752
Lake Charles, LA 70602
Telephone: (337) 502-5146
COUNSEL FOR:
Defendant/Appellant - Wade A. Tolliver a/k/a Wade W. Tolliver, Jr.

Allan P. Haney
Assistant District Attorney - 15th Judicial District Court
P. O. Box 4308
Lafayette, LA 70502
Telephone: (337) 291-7009
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

THIBODEAUX, Chief Judge.

The State charged Defendant, Wade A. Tolliver, a/k/a Wade W.

Tolliver, Jr., with attempted second degree murder, a violation of La.R.S. 14:27

and 14:30.1; attempted armed robbery, in violation of La.R.S. 14:27 and 14:64;

aggravated battery, in violation of La.R.S. 14:34; possession of a firearm by a

convicted felon, in violation of La.R.S 14:95.1; and aggravated burglary, in

violation of La.R.S. 14:60. He pled guilty to aggravated burglary; the State

dismissed the other counts and agreed not to file a habitual offender bill.

The trial court sentenced Defendant to twenty-five years at hard labor.

Defendant now appeals his sentence, claiming it is excessive. We affirm

Defendant’s sentence.

I.

ISSUE

We will determine whether the sentence the trial court imposed on

Defendant is excessive.

II.

FACTS AND PROCEDURAL HISTORY

The victims, Mr. and Mrs. Albert Harris, stopped for the night at the

America’s Best Value Inn in Lafayette Parish. At a preliminary hearing, 1 Mr.

Harris testified that shortly before 10:00 p.m., a black male between the ages of

twenty and thirty knocked on the door. Mr. Harris looked out the window and saw

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A preliminary examination was held to preserve the testimony of Mr. Harris.

Defendant. 2 When Defendant motioned for Mr. Harris to open the door, Mr.

Harris opened the door slightly. Mr. Harris then saw a gun in Defendant’s hand

and tried to close the door quickly. After a struggle, Defendant entered the hotel

room. Mrs. Harris was able to flee the room and call for help. Defendant moved

through the room and jerked the hotel phone out of the wall. He then hit Mr.

Harris over the head, causing him to bleed profusely. Mr. Harris stated that

Defendant fled the room and escaped on a bicycle. The police later apprehended

Defendant and brought him to the hotel, where Mr. Harris identified him as the

assailant.

Defendant and the State entered into a plea agreement. In exchange

for Defendant’s plea of guilty to the charge of aggravated burglary, the State

agreed not to enhance Defendant’s sentence through a habitual offender bill, and it

dismissed the other charges. The sentencing range for the offense of aggravated

burglary is not less than one, nor more than thirty years at hard labor. Defendant

received a sentence of twenty-five years at hard labor. He now appeals.

III.

LAW AND DISCUSSION

In his sole assignment of error, Defendant argues his twenty-five year

sentence is excessive. As there was no motion to reconsider sentence, he is limited

to a bare claim of excessiveness, as this court has explained:

Since Defendant did not object to his sentence or
file a motion to reconsider sentence, he is relegated to a
bare claim of excessiveness.

This court has set forth the following standard to
be used in reviewing excessive sentence claims:

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In court, Mr. Harris identified Defendant as the perpetrator.

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La. Const. art. I, § 20 guarantees that,
“[n]o law shall subject any person to cruel or
unusual punishment.” To constitute 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).

State v. Barling, 00-1241, 00-1591, 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.

To decide whether a sentence shocks one’s sense
of justice or makes no meaningful contribution to
acceptable penal goals, this court has held:

[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

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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.

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.

State v. Jackson, 11-923, pp. 2-3 (La.App. 3 Cir. 6/6/12), 92 So.3d 1243, 1245-46,

writ denied, 12-1540 (La. 1/18/13), 107 So.3d 626.

Louisiana Revised Statutes 14:60 sets forth a sentencing range of one

to thirty years at hard labor for aggravated battery. Thus, Defendant’s sentence is

in the upper range of possible sentences for aggravated burglary. We note,

however, that the trial court carefully considered Defendant’s presentence report as

well as the specific circumstances of the crime.

Indeed, Defendant has two prior felony convictions, and he has been

on probation/parole for the last ten years. His probation/parole has been revoked

on at least three occasions. In the commission of this crime, Defendant showed a

reckless disregard for life and preyed on vulnerable victims. Specifically,

Defendant ambushed two innocent, elderly individuals. His actions indicate that

he was aggressive and knew that his behavior was wrong. For example, Defendant

continuously tried to stick his gun through the crack between the hotel room door

and the door jamb. Once he gained entry to the room, he jerked the phone out of

the wall, thereby preventing Mr. or Mrs. Harris from calling for help. He then

violently attacked Mr. Harris.

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Thus, this was a violent offense against vulnerable individuals, and

Defendant’s past convictions and behavior indicate that he should be removed

from society.

We note this court’s earlier discussion of a sentence for aggravated

burglary:

[T]he trial court did not abuse its considerable
discretion when it sentenced Defendant to thirty years at
hard labor considering the circumstance of the case and
Defendant’s criminal history. As noted by the trial court,
Defendant is a five-time felony offender and has an
extensive arrest record. In State v. Thompson, 39,454,
39,455 (La.App. 2 Cir. 3/2/05), 894 So.2d 1268, cited by
the trial court in the present case as a comparison,
Thompson was convicted of aggravated burglary and
received the maximum sentence of thirty years. The
second circuit affirmed the sentence, noting that
Thompson was a four-time felony offender and had a
lengthy criminal past. The second circuit further stated,
“Defendant was the worst type of offender. The crimes
were committed in a manner that endangered the lives of
several people and with total disregard for public safety
. . . it was clear that [Thompson] had not benefited from
his previous incarcerations and that, this time, he would
be sent away to serve the interest of public safety.” Id. at
1285.

Under the circumstances of the case as set forth by
the trial court above and considering Defendant’s
extensive criminal history, Defendant’s maximum
sentence was not such that would shock this court’s sense
of justice. Accordingly, there is no merit to this claim.

State v. Brandenburg, 06-1158, pp. 30-31 (La.App. 3 Cir. 2/7/07), 949 So.2d 625,

646, writs denied, 07-538, 07-614 (La. 10/26/07), 966 So.2d 571, 966 So.2d 573.

Thus, the current sentence is not “outside the norms of Louisiana jurisprudence.”

State v. Office, 07-193, p. 12 (La.App. 3 Cir. 10/3/07), 967 So.2d 1185, 1194, writ

denied, 07-2274 (La. 4/18/08), 978 So.2d 348.

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We find that due to the violent nature of the crime, the trial court’s

sentence of twenty-five years at hard labor was not an abuse of discretion.

IV.

DECREE

We affirm the trial court’s judgment sentencing Defendant to twenty-

five years at hard labor for the crime of aggravated burglary.

AFFIRMED.

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