State Of Louisiana v. Demario G. Warren ( 2023 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2022 KA 1314
STATE OF LOUISIANA
VERSUS
DEMARIO G. WARREN
DATE OFJUDGMENT. JUN 151023
ON APPEAL FROM THE TWENTY- SECOND JUDICIAL DISTRICT COURT,
PARISH OF WASHINGTON, STATE OF LOUISIANA
NUMBER 16 CR6 132566, DIVISION E
HONORABLE WILLIAM H. BURRIS, JUDGE
Warren LeDoux Montgomery Counsel for Appellee
District Attorney State of Louisiana
J. Bryant Clark, Jr.
Matthew Caplan
Assistant District Attorneys
Covington, Louisiana
Luke Lancaster
Assistant District Attorney
Franklinton, Louisiana
Gwendolyn Brown Counsel for Defendant -Appellant
Baton Rouge, Louisiana Demario Warren
BEFORE: THERIOT, CHUTZ, AND RESTER, JJ.
Disposition: HABITUAL OFFENDER ADJUDICATIONS AND SENTENCES AFFIRMED.
CHUTZ, J
Defendant, Demario Warren, was charged with second- degree murder (count
1) and two counts of aggravated assault with a firearm ( counts 2 & 3). He was
found guilty of the responsive offense of manslaughter on count one and guilty as
charged on the two counts of aggravated assault with a firearm. The defendant was
adjudicated a fourth -felony habitual offender. For the manslaughter conviction, the
trial court imposed an enhanced sentence of life imprisonment without benefit of
parole, probation, or suspension of sentence. For each conviction of aggravated
assault with a firearm, the trial court sentenced the defendant to ten years
imprisonment at hard labor. The sentences were ordered to run concurrently.
On appeal, this court affirmed the convictions and sentences for the two
counts of aggravated assault with a firearm. Because the defendant was convicted
of manslaughter by a non -unanimous verdict,' we vacated that conviction and
sentence, as well as the habitual offender adjudication. The matter was remanded
to the trial court. See State v. Warren, 2019- 1410 ( La. App. 1st Cir. 7124120),
2020 WL 4250839 (unpublished).
While the defendant' s retrial on count one was pending, the State filed new
habitual offender bills of information to enhance the sentences on the defendant' s
two convictions for aggravated assault with a firearm. Following a hearing, he was
adjudicated a fourth -felony habitual offender on those convictions, and the trial
court vacated the previous sentences and imposed an enhanced sentence of life
imprisonment at hard labor on each conviction. See La. R. S. 15: 529. 1 ( A)( 4)( b); 2
State v. Shaw, 2006- 2467 ( La. 11/ 27/ 07), 969 So.2d 1233, 1245 ( there is no
1
See Ramos v. Louisiana, _ U. S. _, 140 S. Ct. 1390, 206 L.Ed. 2d 583 ( 2020).
z This was the provision in effect at the time the defendant committed the instant offenses in
May 2016. Thereafter, La. R.S. 15: 529. 1( A)(4)( b) was amended and redesignated as La. R.S.
15: 529. 1( A)(4)( c) by 2017 La. Acts, Nos. 257 and 282, §§ 1- 2, effective November 1, 2017.
Under La. R.S. 15: 529. 1( K)( 1), the court shall apply the Habitual Offender Law in effect on the
date the defendant' s offense was committed.
2
prohibition against enhancing sentences under the Habitual Offender Law for more
than one conviction obtained on the same date). The defendant filed a counseled
and a pro se motion to reconsider sentence, which the trial court denied. The
defendant now appeals his sentences. We affirm.
ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO
In his two related assignments of error, the defendant argues ( 1) the State
engaged in prosecutorial vindictiveness in belatedly filing habitual offender bills of
information following his successful appeal, and ( 2) the trial court erred in
increasing his sentences without cause.
A vindictive prosecution is one in which the prosecutor seeks to punish the
defendant for exercising a protected statutory or constitutional right and thereby
violates a defendant' s Fifth Amendment right to due process. United States v.
Goodwin, 457 U.S. 368, 372, 102 S. Ct. 2485, 2488, 73 L.Ed.2d 74 ( 1982); State
v. Wesley, 49,438 ( La. App. 2d Cir. 2/ 26/ 15), 161 So. 3d 1039, 1043, writ not
considered, 2015- 1096 ( La. 3114116), 188 So. 3d 1065. A defendant has the burden
of proving the affirmative defense of prosecutorial vindictiveness by a
preponderance of the evidence. Wesley, 161 So. 3d at 1043.
The discretion to charge a defendant under the habitual offender law lies
with the district attorney. State v. Carter, 610 So. 2d 972, 975 ( La. App. 1st Cir.
1992); see La. R.S. 15: 529. 1. A defendant may be charged as a habitual offender at
any time, even after conviction and sentence. La. R.S. 15: 529. 1( D)( 1)( a). A
district attorney has great discretionary power to file a habitual offender bill under
La. R.S. 15: 529. 1( D), just as he has the initial unlimited power to prosecute
whom, when, and how" he chooses. State v. Doirthey, 623 So.2d 1276, 1279 ( La.
1993). His use of the habitual offender laws simply provides an ancillary
sentencing factor designed to serve important and legitimate societal purposes.
Furthermore, the mere use of the habitual offender law will not create a
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presumption of prosecutorial vindictiveness. The events in the course of
prosecution will create a presumption of vindictiveness only when, to a reasonable
mind, the filing of the habitual offender bill can be explained only by a desire to
deter or punish the defendant' s exercise of legal rights. State v. Orange, 2002-
0711 ( La. App. 1st Cir. 4111103), 845 So.2d 570, 578, writs denied, 2003- 1352 ( La.
5121/ 04), 874 So. 2d 161 & 2003- 21.95 ( La. 712! 04), 877 So.2d 137.
We find no prosecutorial vindictiveness in the instant matter. The
circumstances do not demonstrate the defendant was punished for the exercise of
any legal right. His conviction and sentence for manslaughter were vacated
pursuant to Ramos, and the matter was remanded to the trial court. The State
chose to retry the defendant on that charge. Regardless, on the previous
manslaughter conviction, the State filed a habitual offender bill of information in
order to enhance the sentence for that conviction to life imprisonment. Prior to the
manslaughter conviction and enhanced sentence being vacated, the State did not
choose to enhance the defendant' s sentences for aggravated assault with a firearm.
The State had no reason to do so since it had obtained a life sentence with the
enhancement of the manslaughter sentence.
Once this court vacated the life sentence on the manslaughter conviction
because of a Ramos issue, the State sought to enhance the defendant' s sentences
for aggravated assault with a firearm to ensure the defendant would be sentenced to
life as a fourth -felony habitual offender, as it had always intended. This action
reflected prosecutorial discretion rather than vindictiveness. See Carter, 610
So. 2d at 975. Moreover, even if we were to conclude the prosecution' s subsequent
filing of new habitual offender bills of information created a presumption of
vindictiveness, the State had legitimate objective reasons for proceeding with the
habitual offender charges. Specifically, the defendant did, in fact, commit the prior
felonies for which he was convicted and which served as the basis for the habitual
2
offender proceedings. See Wesley, 161 So.3d at 1045.
The defendant also argues on appeal that the same trial court that imposed
the original enhanced life sentence also imposed the instant enhanced life
sentences and, thus, the presumption of vindictiveness should apply. In support of
this proposition, the defendant cites to several cases, including State v. Dauzart,
2007- 15 ( La. App. 5th Cir. 5115107), 960 So.2d 1079 and North Carolina v.
Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L.Ed.2d 656 ( 1969), overruled in art by,
Alabama v. Smith, 490 U. S. 794, 109 S. Ct. 2201, 104 L.Ed.2d 865 ( 1989).
Generally, if a convicted defendant is successful in having his conviction
overturned on appeal and is subsequently re -tried and convicted, the trial court may
not then impose a more severe sentence. A defendant may not be punished for
seeking appellate redress. If a trial court imposes a more severe sentence on a
defendant when he is convicted following a successful appeal, the trial court' s
reasons for the increased sentence must affirmatively appear in the record.
Otherwise, there is a presumption of vindictiveness. The purpose behind this rule
is to prevent defendants from being penalized for having exercised their
constitutional rights. However, the presumption of vindictiveness is inapplicable
where different judges have imposed the different sentences against the defendant,
because a sentence " increase" cannot truly be said to have taken place. Dauzart,
960 So. 2d at 1086.
The defendant' s reliance on Dauzart and Pearce is misplaced. The same
trial court presided over the defendant' s original trial and sentencing and the
instant proceedings. Notwithstanding, the cases cited by the defendant indicate
that a presumption of vindictiveness is triggered when the same trial court imposes
a more severe sentence on a defendant after a new trial. Neither of these factors is
present in the instant matter. There has been no imposition of a more severe
sentence on the defendant and there has been no new sentence imposed on him
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after a new trial. Upon remand, the trial court again adjudicated the defendant a
fourth -felony habitual offender and sentenced him to a life sentence for each
aggravated assault with a firearm conviction. The new enhanced sentences for
these convictions were not more severe than the enhanced life sentence imposed
for the defendant' s manslaughter conviction. Further, the new enhanced sentences
were not imposed after a new trial, since the defendant' s new trial on count one
had not been held at the time of the new habitual offender hearing and sentencing.
Moreover, the trial court had no discretion in imposing mandatory enhanced life
sentences under the Habitual Offender Law.'
The defendant has failed to produce any evidence of vindictiveness on the
part of either the prosecution or the trial court. While the defendant' s arguments
seem to focus more on prosecutor ial vindictiveness, he has provided no factual
basis for such a claim. Moreover, the defendant' s claims as to the trial court' s
vindictiveness in imposing a harsher sentence on remand is not supported by the
record. See Orange, 845 So. 2d at 579- 80.
These assignments of error are without merit.
HABITUAL OFFENDER ADJUDICATIONS AND SENTENCES
AFFIRMED,
3 The trial court specifically found there were no reasons to deviate from the mandatory life
sentences pursuant to Dorthey. ( R. 441- 42).
0