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State v. Quan

Court of Appeal of Louisiana, Third Circuit

March 4, 2015

STATE OF LOUISIANA
v.
ZHEGAO QUAN

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. CR 144233. HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE.

AFFIRMED IN PART; VACATED IN PART; AND, REMANDED WITH INSTRUCTIONS.

Edward K. Bauman, Louisiana Appellate Project, Lake Charles, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT: Zhegao Quan.

Keith Stutes, District Attorney - Fifteenth Judicial District, Roger P. Hamilton, Jr., Assistant District Attorney, Lafayette, Louisiana, COUNSEL FOR APPELLEE: State of Louisiana.

Court composed of Jimmie C. Peters, Billy Howard Ezell, and James T. Genovese, Judges.

OPINION

Page 1260

[14-1126 La.App. 3 Cir. 1] GENOVESE, Judge.

In this criminal case, Defendant, Zhegao Quan, pled guilty to four counts of

Page 1261

identity theft in violation of La.R.S. 14:67.16, four counts of monetary instrument abuse in violation of La.R.S. 14:72.2(A), six counts of illegal transmission of monetary funds in violation of La.R.S. 14:70.8, and four counts of access device fraud in violation of La.R.S. 14:70.4. On the four counts of identity theft, he was sentenced to six months in the parish jail; on the four counts of monetary instrument abuse, he was sentenced to seven years at hard labor and a $5,000.00 fine; on the six counts of illegal transmission of monetary funds, he was sentenced to seven years at hard labor; and, on the four counts of access device fraud, he was sentenced to five years at hard labor. All eighteen counts were ordered to run concurrently, with Defendant being given credit for time served.

Defendant filed a Motion to Reconsider his sentences, which was denied. He now appeals, alleging excessive sentence only. He does not appeal his conviction.

FACTS

On December 4, 2013, two out-of-state victims reported that their credit cards had been used at a Wal-Mart in Lafayette, Louisiana. Video surveillance confirmed that two Asian males had used the cards and that the same two males had been spotted back in the store the following day. One of those males was the Defendant, Zhegao Quan, who, at the time of his arrest on December 5, 2013, was in possession of four credit cards and sixteen Wal-Mart gift cards. The credit cards were found to be re-coded to charge to different credit card numbers than those which were listed on the cards.

According to the male with whom Defendant was arrested, this occurrence was part of a nationwide credit card scam. The victims in this case were residents [14-1126 La.App. 3 Cir. 2] of the states of Mississippi and Montana. Defendant is a sixty-year-old Chinese citizen, who was illegally in the United States at the time of the offenses and upon whom the Immigration and Nationalization Service has filed a detainer.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find two actionable errors patent, namely, an illegally excessive sentence in part and a misjoinder of offenses, which are individually addressed below.

ILLEGALLY EXCESSIVE SENTENCE

Defendant was charged by bill of information in Counts 15, 16, 17 and 18 with having committed, on December 4, 2013, four violations of La.R.S. 14:70.4, access device fraud. The bill of information provided in pertinent part:

Count 15: On or about 12/04/2013, in the Parish of Lafayette, ZHEGAO QUAN did willfully, unlawfully and intentionally

Page 1262

issued [sic] an access card, valued at under $500.00, in the name of JACKIE JOHNSON and/or TODD HARWELL, without authorization and with the intent to defraud JACKIE JOHNSON and/or TODD HARWELL, in violation of the provisions of R.S. 14:70.4.
Count 16: On or about 12/04/2013, in the Parish of Lafayette, ZHEGAO QUAN did willfully, unlawfully and intentionally issued [sic] an access card, valued at under $500.00, in the name of JACKIE JOHNSON and/or TODD HARWELL, without authorization and with the intent to defraud JACKIE JOHNSON and/or TODD HARWELL, in violation of the provisions of R.S. 14:70.4.
Count 17: On or about 12/04/2013, in the Parish of Lafayette, ZHEGAO QUAN did willfully, unlawfully and intentionally issued [sic] an access card, valued at under $500.00, in the name of JACKIE JOHNSON and/or TODD HARWELL, without authorization and with the intent to defraud JACKIE JOHNSON and/or TODD HARWELL, in violation of the provisions of R.S. 14:70.4.
Count 18: On or about 12/04/2013, in the Parish of Lafayette, ZHEGAO QUAN did willfully, unlawfully and intentionally issued [sic] an access card, valued at under $500.00, in the name of JACKIE JOHNSON and/or TODD HARWELL, without authorization and with the intent to defraud JACKIE ...

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