State of Louisiana v. Warren L. Dickerson

• Court: Louisiana Court of Appeal
• Decided: June 28, 2023
• Docket: 55,088-KA
• Status: Published

Opinion

Judgment rendered June 28, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 55,088-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

WARREN L. DICKERSON Appellant

Appealed from the Caddo Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 179,306

Honorable Ramona L. Emanuel, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Edward K. Bauman

JAMES E. STEWART, SR. Counsel for Appellee District Attorney

REBECCA ARMAND EDWARDS NANCY F. BERGER-SCHNEIDER Assistant District Attorneys

Before STONE, THOMPSON, and ROBINSON, JJ. THOMPSON, J.

The defendant, Warren Dickerson, was convicted of attempted armed

robbery, adjudicated a habitual offender and, after a series of appeals and

remands, was sentenced to 62 years at hard labor, without benefit of

probation or suspension of sentence, but the trial judge included language

the sentence was to be served with the possibility of parole and with credit

for time served. Dickerson appeals, asserting the sentence of 62 years is

excessive. For the following reasons, Dickerson’s sentence is affirmed.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of January 17, 1996, Shreveport Police

Officer Thomas Morgan stopped at the Circle K convenience store on W.

70th Street in Shreveport, Louisiana. Officer Morgan testified that when he

arrived in his marked police unit, he observed a black male standing with a

pistol in his right hand pointed at the Circle K attendant. Officer Morgan

testified the individual dropped the gun and attempted to flee. Officer

Morgan ran after him and apprehended him not far from the store. The

suspect was identified as Warren Dickerson.

On March 11, 1996, Dickerson was originally charged with two

counts of attempted armed robbery and possession of a firearm by a

convicted felon. On April 21, 1999, Dickerson’s jury trial on the amended

single charge of attempted armed robbery began. After two days of trial,

Dickerson was found guilty as charged by a unanimous jury of one count of

attempted armed robbery. The state then charged Dickerson as a fourth

felony habitual offender, pursuant to La. R.S. 15:529.1. Following a

habitual offender hearing, Dickerson was adjudicated a fourth felony

habitual offender and sentenced to the mandatory life imprisonment at hard labor, without benefits. The Louisiana Appellate Project was appointed to

represent Dickerson in the appeal of his conviction and sentence. State v.

Dickerson, 33,474 (La. App. 2 Cir. 5/10/00), 760 So. 2d 573.

On Dickerson’s first appeal in 2000, this Court found that the State

failed to meet its burden of proof on the habitual offender adjudication

regarding Dickerson’s 1983 manslaughter conviction. This Court affirmed

Dickerson’s conviction of attempted armed robbery, but set aside his fourth

felony habitual offender status and adjudicated Dickerson a third felony

offender. His two predicate offenses included a 1987 simply robbery (a

crime of violence), and a 1994 illegal possession of stolen things. The

matter was remanded for resentencing.

On remand, the trial court sentenced Dickerson as a third felony

offender to life at hard labor without benefit of parole, probation, or

suspension of sentence, as was then mandated by La. R.S.

15:529.1(A)(1)(b)(ii). In 2001, on his second appeal, this Court rejected

Dickerson’s excessive sentence claim and affirmed the then mandatory life

sentence. State v. Dickerson, 34,615 (La. App. 2 Cir. 7/11/01), 792 So. 2d

78, writ denied, 01-2406 (La. 8/30/02), 823 So. 2d 937.

Seventeen years elapsed between Dickerson’s second appeal and

initiation of the proceedings presently before this court. During that time,

there were modifications to the habitual offender law by the Louisiana

legislature, as well as declarations by the Louisiana Supreme Court on the

retroactivity of those modifications.1

1 As a result of these changes, as addressed in greater detail in the body of the opinion, certain defendants who were convicted of crimes and received enhanced sentences prior to 2001 became eligible for resentencing under the new ameliorative sentencing provisions. 2 On June 28, 2018, Dickerson filed a motion to correct illegal sentence

pursuant to State ex rel. Esteen v. State, 16-0949 (La. 1/30/18), 239 So. 3d

233. Dickerson was entitled to resentencing under the more lenient penalty

provisions that were enacted by the legislature in 2001 La. Acts 403, which

the legislature later declared in La. R.S. 15:308(B) apply retroactively.

Pursuant to La. R.S. 15:529.1(A)(1)(b)(i), as amended in 2001, a

third-felony offender shall be sentenced to imprisonment for a determinate

term not less than two-thirds of the longest possible sentence for the

conviction and not more than twice the longest possible sentence prescribed

for a first conviction. La. R.S. 15:529.1(A)(1)(b)(ii) no longer authorized a

life sentence for a third-felony offender unless the third felony and the two

prior felonies were either (1) felonies defined as a crime of violence under

La. R.S. 14:2(13); (2) a sex offense as defined in La. R.S. 15:540 et seq.

when the victim is under the age of 18 at the time of the offense; or (3) as a

violation of the Uniform Controlled Dangerous Substance Law punishable

for 10 years or more or any other crime punishable by imprisonment for 12

years or more. However, the pre-2001 version required imposition of a life

sentence for a third-felony offender if the third felony or any of the prior

felony offenses fell into the categories listed above.

As noted above, only one of Dickerson’s two prior felonies are

defined as crimes of violence. As such, he is eligible for resentencing under

the new ameliorative sentencing provisions, pursuant to Esteen, supra. On

August 6, 2018, the trial court signed an order granting the motion to correct

illegal sentence, appointing the public defenders’ office to represent

Dickerson during the resentencing proceedings.

3 La. R.S. 15:529.1(G) states that any sentence imposed under the

habitual offender provisions shall be at hard labor without benefit of

probation or suspension of sentence. The language is silent to parole

eligibility. Parole eligibility under the habitual offender enhanced

sentencing is determined by whether the prohibitive condition was imposed

under the underlying offense. The current jurisprudence provides the

imposition of a habitual offender sentence without benefit of parole are

determined by the sentencing provisions for the underlying offense. State v.

Sullivan, 51,180 (La. App. 2 Cir. 2/15/17), 216 So.3d 175; State v. Hopkins,

52,660 (La. App. 2 Cir. 4/10/19), 268 So. 3d 1226, writ denied, 19-00841

(La. 9/24/19), 278 So. 3d 978

By operation of the attempt statute, La. R.S. 14:27, the sentencing

range for certain enumerated crimes prosecuted as an “attempted” crime, is

one-half of the longest term of imprisonment for the crime. Therefore, on

resentencing for attempted armed robbery, Dickerson’s potential penalty

would not exceed one-half the longest term of imprisonment prescribed for

the offense of armed robbery. The longest term of imprisonment for armed

robbery is 99 years at hard labor, without benefits. Thus, the attempted

armed robbery carried a maximum penalty of 49½ years at hard labor. On

his second resentencing as a third felony offender under the new

ameliorative sentencing provisions, Dickerson faced a penalty range of not

less than half of the maximum penalty for attempted armed robbery and up

to twice the maximum penalty – 24 ¾ to 99 years.

On March 2, 2022, following several virtual proceedings with

Dickerson participating by video conferencing from Louisiana State

Penitentiary (“Angola”), and delays certainly attributable to the Covid-19 4 pandemic, Dickerson appeared via Zoom for resentencing by the trial court.

The State noted that three exhibits had been submitted by defense counsel:

records of program certificates from Angola, letters from Dickerson’s

family, and medical records. The trial court provided “[b]ased on the

totality of everything that’s been submitted,” that Dickerson was resentenced

to 62 years at hard labor, without benefit of probation or suspension of

sentence, but with the possibility of parole and with credit for time served.

Dickerson did not file a motion to reconsider his sentence. However, on

March 7, 2022, Dickerson filed a motion to reschedule his resentencing,

claiming that the audio during his Zoom hearing was of poor quality. The

trial court denied the motion to reschedule resentencing. Dickerson now

appeals.

DISCUSSION

Dickerson asserts one assignment of error, arguing that his midrange

sentence of 62 years is excessive.

Assignment of Error No. 1: The trial court erred in imposing a constitutionally excessive sentence upon resentencing. The court also erred in failing to properly consider art. 894.1, and in not taking into account Dickerson’s age (60), and poor health, before imposing sentence.

Dickerson argues that the trial court failed to consider his age, poor

health, or any of the factors listen in La. C. Cr. P. art. 894.1, before

resentencing him to 62 years at hard labor.

When a defendant fails to make a motion to reconsider sentence, the

appellate court's review of the sentence is limited to a bare claim of

constitutional excessiveness. State v. Benson, 53,578 (La. App. 2 Cir.

11/10/2020), 305 So. 3d 135. In this case, Dickerson did not object or make

an oral motion to reconsider sentence at the sentencing hearing, nor did he 5 file a written motion to reconsider sentence. Therefore, he did not preserve

whether the trial court complied with La. C. Cr. P. art. 894.1, including

whether his age and illness were mitigating factors, and is precluded from

raising it on appeal. Accordingly, our review is limited to whether or not

Dickerson’s sentence is constitutionally excessive. State v. Cooksey, 53,660

(La. App. 2 Cir. 5/26/21), 316 So. 3d 1284.

A sentence can be constitutionally excessive, even when it falls within

statutory limits if: (1) the punishment is so grossly disproportionate to the

severity of the crime that, when viewed in light of the harm done to society,

it shocks the sense of justice; or (2) it serves no purpose other than to

needlessly inflict pain and suffering. State v. Dorthey, 623 So. 2d 1276 (La.

1993). The circumstances of the case and the background of the defendant

are relevant in making this determination. State v. Sharkey, 602 So. 2d 249

(La. App. 2 Cir. 1992). The sentencing judge may consider whatever facts

and evidence he or she considers important in determining the best interest

of the public and the defendant. Id.; State v. Cooksey, supra.

The trial court has wide discretion in the imposition of sentences

within the statutory limits and such sentences should not be set aside as

excessive in the absence of a manifest abuse of that discretion. State v.

Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Allen, 49,642 (La.

App. 2 Cir. 2/26/15), 162 So. 3d 519, writ denied, 15-0608 (La. 1/25/16),

184 So. 3d 1289. A trial judge is in the best position to consider the

aggravating and mitigating circumstances of a particular case, and, therefore,

is given broad discretion in sentencing. State v. Allen, supra. On review, an

appellate court does not determine whether another sentence may have been

6 more appropriate, but whether the trial court abused its discretion. State v.

Jackson, 48,534 (La. App. 2 Cir. 1/15/14), 130 So. 3d 993.

Dickerson was originally convicted on April 22, 1999. On September

2, 1999, Judge Ramona Emanuel (“Judge Emanuel”) sentenced Dickerson as

a fourth felony habitual offender. Upon this court’s remand for resentencing

as a third felony habitual offender, Judge Emanuel again resentenced

Dickerson on July 21, 2000. It was the same Judge Emanuel who, on March

30, 2022, signed a ruling sentencing Dickerson to the 62-year sentence

which he now appeals. This is not a situation where there has been a change

of judges or where the sentencing judge is challenged to come up with a

sentence without the benefit of active involvement and familiarity with the

defendant and the conviction. We find that Dickerson’s sentence is not

unconstitutionally excessive.

As a habitual offender with a crime of violence, Dickerson’s

incarceration exposure was between 23 ¾ and 99 years. The midrange

sentence of 62 years as a third felony habitual offender for attempted armed

robbery does not shock the sense of justice. Additionally, Dickerson’s

extensive criminal history was relevant to the trial court’s determination of

his new sentence. Further, Dickerson’s age and poor health cannot be

considered on review of his sentence on a bare claim of constitutional

excessiveness. Dickerson has failed to show that the trial court’s imposition

of a midrange sentence constitutes an abuse of discretion. This assignment

of error is without merit.

Errors Patent

Dickerson was convicted of attempted armed robbery, pursuant to La.

R.S. 14:27 and La. R.S. 14:64. La. R.S. 14:64(B) provides that whoever 7 commits the crime of armed robbery shall be imprisoned at hard labor

without benefit of parole, probation, or suspension of sentence. As noted

herein, the pertinent portion of the habitual offender law, La. R.S.

15:529.1(G), states that any sentence imposed under the habitual offender

provisions shall be at hard labor without benefit of probation or suspension

of sentence. Regarding the imposition of a habitual offender sentence

without benefit of parole, the conditions imposed on the sentence are

determined by the sentencing provisions for the underlying offense. Further,

the attempt statute, La. R.S. 14:27(D)(3), applies to the punishment for

attempted armed robbery and provides that the defendant shall be punished

in the same manner as for the offense attempted. For the offense of

attempted armed robbery, the benefit of parole is not available.

A defendant in a criminal case does not have a constitutional right or a

statutory right to an illegally lenient sentence. State v. Williams, 00-1725

(La. 11/28/01), 800 So. 2d 790; State v. Burns, 53,250 (La. App. 2 Cir.

1/15/20), 290 So. 3d 721. An illegally lenient sentence may be corrected at

any time by the court that imposed the sentence or by an appellate court on

review. La. C. Cr. P. art. 882(A). This correction may be made despite the

failure of either party to raise the issue. Burns, supra.

In the present matter, the trial court sentenced Dickerson to serve 62

years at hard labor, without benefit of probation of suspension of sentence,

but with the possibility of parole. When a trial court fails to apply the

correct restriction of benefits, and there is no discretion regarding the

restriction of benefits, the error is harmless and self-correcting, and the

sentence will be automatically served without benefits, as provided in the

8 sentencing statute. La. R.S. 15:301.1(A); State v. Yetman, 54,883 (La. App.

2 Cir. 1/11/23), 354 So. 3d 1262.

CONCLUSION

For the foregoing reasons, Dickerson’s sentence of 62 years, without

the benefits of probation, parole or suspension of sentence, is affirmed.

AFFIRMED.