STATE OF LOUISIANA v. GABRIEL MICHAEL DEHLIN (2026)

Gabriel Michael Dehlin, the defendant, was charged by bill of information with attempted first-degree murder (count I), a violation of La. R.S. 14:27 & La. R.S. 14:30; and armed robbery with a firearm (count II) a violation of La. R.S. 14:64 and La. R.S. 14:64.3. He pled no contest on both counts and waived his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).¹ On count I, he was sentenced to fifty-years imprisonment at hard labor without benefit of probation, parole, or suspension of sentence. On count II, he was sentenced to thirty-five years at hard labor and a consecutive term of five years at hard labor, with the terms to run concurrently with the sentence imposed on count I.² The trial court denied the defendant's Motion to Reconsider Sentence.

He now appeals, contending the trial court erred in accepting his pleas in violation of the Double Jeopardy Clause as provided in the 5th Amendment to the United States Constitution and abused its discretion in imposing excessive sentences. For the following reasons, we modify the conviction on count I to attempted second-degree murder and affirm the conviction as amended, affirm the conviction on count II, vacate the sentences on counts I and II, and remand for resentencing.

FACTS

During the sentencing hearing on December 2, 2024, several people testified including the victim, 55-year-old Mrs. Kaye Bowe. Mrs. Bowe testified that on May 6, 2023, she was working from 1:00 p.m. to 10:00 p.m. as a store clerk at Springfield Grocery in Livingston Parish. Around 9:45 p.m., Mrs. Bowe noticed that the defendant had entered the store after she took out the trash around According to the police report, the defendant walked around the store grabbing items, as if he were shopping. Mrs. Bowe stated that she saw the defendant staring at her “[r]ight by where the fountain drinks were.” During this time, she waited on the other customers. After the other customers left, the defendant coaxed Mrs. Bowe from behind the counter by claiming a “blunt” was on the floor. He pointed a handgun at her face stating, “Ma'am, what you're going to do, you're going to lock that door, I'm going to rob you tonight and I'm going to kill you.”

Mrs. Bowe tried to disarm the defendant several times. Mrs. Bowe eventually surrendered all the money from the cash drawer to the defendant, all the while pleading for her life and explaining that it was her daughter's birthday and she had two grandkids. As the defendant walked away she called out that she was calling “the law.” Thereafter, the defendant turned around and shot Mrs. Bowe. According to Mrs. Bowe, the defendant stated, “I told you I was going to shoot you, bitch. The bullet struck Mrs. Bowe under her collarbone, approximately one centimeter from her heart. It severed her spinal cord, paralyzing her from the chest down for life.

LAW AND DISCUSSION

DOUBLE JEOPARDY

In his first assignment of error, the defendant contends the trial court erred in accepting his pleas in violation of the Double Jeopardy Clause as provided in the Fifth Amendment to the United State Constitution. He argues his convictions and sentences for both attempted first-degree murder and armed robbery subjected him to multiple punishments for the same conduct. Additionally, the defendant argues, the error is apparent on the face of the record, and thus, his conviction and sentence on count I must be vacated.

The State responds that the defendant entered his pleas without requiring the State to specify how it intended to prove attempted first-degree murder. Had it proven its case, it would have shown the defendant committed the underlying felony of aggravated burglary during the commission of an attempted first-degree murder and armed robbery. In the alternative, the State argues the conviction for attempted first-degree murder should be amended to a conviction for attempted second-degree murder.

In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the United States Supreme Court set out a precise rule of law to determine whether a double jeopardy violation has occurred. “The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each [of the statutes that define a crime charged] requires proof of a fact which the other does not (emphasis added).” Id. at 304. Double jeopardy may be raised at any time, pursuant to Louisiana Code Crim. P. art. 594. Furthermore, an unqualified plea of guilty does not preclude appellate review of what are regarded as “jurisdictional” defects, such as violations of the double jeopardy clause. State v. Hayes, 2002-0527 (La. App. 1 Cir. 10/02/02), 836 So. 2d 139, 144.

The prohibition against double jeopardy protects an accused from being punished or prosecuted twice for the same offense. U.S. Const. amend. V; La. Const. art. I, § 15; La. Code Crim. P. art. 591. While a defendant's unqualified guilty pleas on multiple charges do not preclude appellate review for double jeopardy, his right to subsequently attack multiple convictions and sentences on double jeopardy grounds is severely circumscribed. In such a case, he can attack a conviction on double jeopardy grounds only if he shows a double jeopardy violation on the face of the record. State ex rel. Boyd v. State, 98-0378 (La. 10/09/98), 720 So. 2d 667, 667 (per curiam). A court considering a double jeopardy attack on multiple convictions and sentences entered pursuant to unconditional guilty pleas should engage in a limited review of only the charging documents and plea colloquy. The purpose of these provisions is to protect an accused from a second prosecution for an offense, after he has already been acquitted or convicted of that offense, and also to protect the accused from multiple punishments for the same conduct. Hayes, 836 So.2d at 144.

In the instant case, the bill of information charged the following offenses:

COUNT I

R.S. 14:27 & 14:30 ATTEMPTED FIRST DEGREE MURDER [Defendant], on or about May 6, 2023, did attempt to commit the first degree murder of Mrs. Kaye Bowe.

COUNT II

R.S. 14:64.3(A) ARMED ROBBERY WITH USE OF A FIREARM [Defendant], on or about May 6, 2023, did take anything of value belonging to another [from] the person of another or that is in the immediate control of another, to-wit: Mrs. Kaye Bowe, by use of force or intimidation, while aimed with a dangerous weapon.

At the Boykin hearing, the State offered the tendered discovery as the factual basis for the defendant's pleas. The defense stipulated to the factual basis.

Herein, the State claims that the underlying felony for the attempted first-degree murder was aggravated burglary. Further, the State claims it was not required to point out which enumerated felony the defendant committed as the underlying felony. Nonetheless, the State offers that it would have put on evidence that the defendant committed aggravated burglary, not armed robbery as charged in count II. This is unsupported by the testimony at the Boykin hearing. Mrs. Bowe testified the incident occurred after the defendant entered Springfield Grocery while the business was open to the public.

Aggravated burglary is the unauthorized entering of a structure where a person is present, with an intent to commit a felony or any theft therein, if the offender: is armed with a dangerous weapon upon entering; arms himself with a dangerous weapon after entering; or commits a battery upon any person while in such place, or in entering or leaving such place. La. R.S. 14:60. Louisiana law treats unauthorized entry and felonious intent as separate and distinct elements of burglary. La. R.S. 14:60; 14:62. In discussing the “unauthorized entering” element of the aggravated burglary and simple burglary statutes, the supreme court has stated that an entry with undeclared felonious intent is not “unauthorized” if it is with the knowing and voluntary consent, express or implied, of the owner or occupant of the premises. Smith, 748 So. 2d at 1143.

In the case of a building that is open to the public, such as in the instant case, the consent to enter the building at the times when it is open to the public and within the confines designated is implied, regardless of the intent of the person so entering. An entry with undeclared felonious intent is therefore not “unauthorized” if it is with the knowing and voluntary consent, express or implied, of the owner or occupant of the premises. State v. Smith, 98-2078 (La. 10/29/99), 748 So. 2d 1139, 1143. We find that the defendant entered the store prior to closing, as an authorized patron. Therefore, the convictions for attempted first-degree murder and armed robbery of the same victim in the same incident violate double jeopardy. See State ex rel. Williams v. State, 2005-0427 (La. 01/27/06), 922 So. 2d 526. (“When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime, after conviction of the greater one.”)

As charged, attempted second-degree murder is a lesser included offense of attempted first-degree murder. This Court, if supported by the record, has the authority to amend the defendant's conviction to attempted second-degree murder. See e.g. State v. Romero, 2021-173 (La. App. 3 Cir. 12/15/21), 331 So. 3d 444, 465, writ not considered, 2022-00250 (La. 4/26/22), 336 So. 3d 895. To sustain a conviction for attempted second-degree murder, the State must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim's death. See La. R.S. 14:27; 14:30.1. Although the statute for the completed crime of second-degree murder allows for a conviction based on “specific intent to kill or to inflict great bodily harm,” La. R.S. 14:30.1, attempted second-degree murder requires specific intent to kill. State v. Huizar, 414 So. 2d 741 (La. 1982). Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Butler, 322 So. 2d 189 (La. 1975); State v. Martin, 92-0811 (La. App. 5 Cir. 05/31/94), 638 So. 2d 411. Moreover, specific intent to kill may be inferred from a defendant's act of pointing a gun and firing at a person. State v. Welch, 2019-0826 (La. App. 1st Cir. 02/21/20), 297 So. 3d 23, 27, writ denied, 2020-00554 (La. 09/29/20), 301 So. 3d 1193.

We find that the evidence viewed in a light most favorable to the State supports a conviction on count I of the lesser included offense of attempted second-degree murder. See La. Code Crim. P. art. 814(A)(1). Proof of the first two elements of attempted first-degree murder in this case necessarily meets the burden of proof for the responsive verdict of attempted second-degree murder. See La. Code Crim. P. art. 821(C).³ The State adequately established that defendant was the shooter, and that he stated that he wanted to kill his victim, Mrs. Bowe. Accordingly, the defendant is guilty of the responsive verdict of attempted second-degree murder, without the necessity of a finding of armed robbery. We also note that the potential sentence for each of the crimes of attempted second-degree murder and attempted first-degree murder are the same: ten to fifty years of imprisonment at hard labor without probation, parole, or suspension of sentence.⁴ La. R.S. 14:27(D)(1)(a). Thus, we amend the verdict of the defendant's conviction of attempted first-degree murder to attempted second-degree murder, such that the plea of double jeopardy is inapplicable.

When raising a double jeopardy claim, a defendant is effectively contesting the entire scheme of punishment. A finding that the convictions violate double jeopardy disrupts the carefully crafted, interdependent sentences imposed by the trial judge. State v. Neville, 572 So. 2d 1161, 1164 (La. App. 1 Cir. 1990), writ denied, 576 So. 2d 46 (La. 1991) citing United States v. Andersson, 813 F.2d 1450, 1462 (9th Cir. 1987). As such, the conviction on count II is affirmed; however, the sentences on counts I and II are vacated, and this matter is remanded to the trial court for resentencing. See State v. Williams, 2007-0931 (La. 2/26/08), 978 So. 2d 895, 898.⁵

EXCESSIVE SENTENCE

Our disposition of the defendant's first assignment of error causes us to pretermit consideration of his second assignment of error, namely that the trial court failed to consider the substantial mitigating evidence and the sentences are excessive.

CONCLUSION

For the foregoing reasons, we modify Gabriel Michael Dehlin's conviction on count 1 to attempted second-degree murder and affirm as amended. We affirm the armed robbery with a firearm conviction on count 2. We vacate the sentences of count 1 and count 2, and remand to the trial court for resentencing.

MODIFY CONVICTION ON COUNT I TO ATTEMPTED SECOND-DEGREE MURDER AND AFFIRM AS AMENDED; AFFIRM CONVICTION ON COUNT II; VACATE SENTENCES ON COUNTS I AND II; REMAND FOR RESENTENCING.

FOOTNOTES

1.   A sentence imposed upon a plea of nolo contendere is a conviction. La. Code Crim. P. art. 552(4).

2.   The minutes indicate the sentence on count II was imposed without benefit of probation, parole, or suspension of sentence; however, the sentencing transcript fails to reflect these restrictions. The sentence on count II is deemed to be imposed without benefit of probation, parole, or suspension of sentence because it is statutorily effected. See La. R.S. 15:301.1(A). However, given our remand for resentencing, this patent error is moot.

3.   If the court finds that the evidence, viewed in a light most favorable to the State, supports only a conviction of a lesser included responsive offense, the court, in lieu of granting a post verdict judgment of acquittal, may modify the verdict and render a judgment of conviction on the lesser included responsive offense. La. Code Crim. P. art. 821(C).

4.   As such, we note that the trial court can choose to impose the same sentence if warranted.

5.   In Williams, 978 So. 2d at 898, the Court instructed, “As opposed to quashing the prosecution altogether and setting aside defendant's guilty plea and sentence, the court of appeal should have, assuming the correctness of its premise, reduced defendant's conviction to the misdemeanor offense of flight from an officer under La. R.S. 14:108.1(A) and remanded the case to the trial court for resentencing.”

BALFOUR, J.