Judgment rendered November 30, 2022. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,905-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
JOHN E. GILCREASE Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 370,505
Honorable Donald E. Hathaway, Jr., Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Sherry Watters
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
JASON W. WALTMAN REBECCA A. EDWARDS Assistant District Attorneys *****
Before MOORE, STEPHENS, and ROBINSON, JJ. MOORE, C.J.
This is an appeal after remand for resentencing of the defendant, John
E. Gilcrease, who complains that as a result of resentencing, he received an
unconstitutionally harsher sentence for his conviction for obstruction of
justice. After review, we conclude that the sentence imposed is not illegal or
constitutionally excessive. We therefore affirm.
FACTS
Caddo Parish Sheriff’s Deputy Joshua Grimes was dispatched to
Willis-Knighton South shortly after midnight on May 28, 2019, to
investigate a battery committed just hours earlier at a Keithville, Louisiana,
residence on May 27, 2019. The victim of the battery, Connie Cliburn, told
Dep. Grimes that her boyfriend, John Gilcrease, with whom she had lived
for a year, had beaten her several times during the previous day. Gilcrease,
the defendant herein, was not present at the hospital.
According to Ms. Cliburn, the beatings began around noon the day
before in the travel trailer where the couple lived next to Gilcrease’s parents’
home. The battering continued until around 10:00 p.m., when she escaped
and ran to her sister’s home about one mile away.
The dispute allegedly erupted over a marriage license. Although the
couple are not married, Gilcrease referred to Ms. Cliburn as his wife; he also
referred to each of his previous victims as his wife, but that was the one knot
he never actually tied.
Ms. Cliburn said that Gilcrease walked toward her and hit her in the
nose with the palm of his hand. Then, when she tried to scream, he shoved
socks in her mouth and choked her with his left hand. He told her he would stop if she would be quiet. He locked the door, preventing her from leaving.
Each time she tried to move toward the door, he shoved her to the floor.
Gilcrease told her to get a gun so he could kill her. When she refused,
he pinned her down on the bed with his knees on her arms and tied a necktie
around her neck. He stuffed socks in her mouth and covered her mouth with
his hand while pinching her nostrils shut. He told her he was going to kill
her and then kill himself. She said she blacked out. When she came to, he
was standing by the front door and told her she was not leaving. He said he
did not trust her because she was going to call the police and he would go to
jail.
She convinced him to let her take a shower; but when she was getting
into the shower, he repeatedly slammed the right side of her face into the
wall. After the shower, she asked if she could check on her dog, which was
staying at his parents’ house; when they went into the house, Gilcrease and
his father began arguing. The father told Gilcrease he needed to leave.
When Gilcrease went back to the trailer, Ms. Cliburn seized the opportunity
to flee on foot to her sister’s house, about a mile away. When she arrived
there, her sister drove her to the hospital where she was treated for her
injuries.
Gilcrease was booked on charges of second degree battery, a violation
of La. R.S. 14:34.1 and false imprisonment, a violation of La. R.S. 14:46.
The obstruction of justice charge came a few weeks later while
Gilcrease was in jail, when he tried to persuade Ms. Cliburn to recant her
story of the incident resulting in the second degree battery charge.
On June 12, 2019, the district court issued a protective order,
instructing Gilcrease in open court that he was prohibited from any contact 2 with Ms. Cliburn, either personally, electronically, by telephone, in writing,
or through a third party; he was then returned to the Caddo Correctional
Center. The very afternoon that the protective order was issued, he
telephoned the victim on her cell phone, ignoring the protective order. He
continued to contact the victim on her cell phone some 68 times in the days
following, even after Ms. Cliburn warned him not to call her. Additionally,
Gilcrease wrote her several letters telling her to recant her statement to
police about the incident. In one of the letters, he acknowledged that he was
asking her to lie about the battery for which he was charged. He told her he
could not live without her, and he would kill himself if she did not take his
calls.
The victim told investigators she was terrified of Gilcrease, and she
feared that he would get someone to harm her while he was in jail, or that he
would harm her after he got out of jail. She said he was manipulative and
vindictive.
As a result of the violations of the protective order, the state filed an
amended bill of information charging second degree battery, false
imprisonment, and violation of a protective order (14 counts), an offense
defined by La. R.S. 14:79. Subsequently, a second bill under a different
docket number was filed charging Gilcrease of obstruction of justice, in
violation of La. R.S. 14:130.1, namely, by “tampering with evidence with
specific intent of distorting the results of any criminal investigation.”
Gilcrease rejected partial plea offers from the state. However, on the
morning of trial, he tried to resurrect the plea offers that he previously
rejected. The state refused. Faced with the prospect of a trial, Gilcrease
ultimately elected to plead guilty to all the charges without any sentencing 3 agreement, stating that he wanted to spare the victim, Ms. Cliburn, from
suffering the stress of having to testify against him.
The court correctly informed Gilcrease of the sentencing ranges for
each offense, including the separate obstruction of justice charge, to which
he was also pleading guilty, and she properly Boykinized Gilcrease before
accepting his guilty plea.
Subsequently, the court sentenced Gilcrease to six years at hard labor
for the second degree battery conviction and, inexplicably, imposed a
statutorily illegal 10-year hard labor sentence for the obstruction of justice
conviction. She ordered the two felony sentences to be served concurrently
with each other and with the misdemeanor sentences, all with credit for time
served.
On appeal, we vacated the illegal 10-year sentence imposed for
obstruction of justice and remanded the case for resentencing. State v.
Gilcrease, 54,122 (La. App. 2 Cir. 11/17/21), 329 So. 3d 1173.
On remand, the court judge imposed a reduced sentence of 4 years
(originally 10) at hard labor on the obstruction charge; however, it ordered
the sentence to be served consecutively to the 6-year sentence imposed for
second degree battery. Adding the two sentences together, the result was the
same as the original sentence – a 10-year sentence. Gilcrease also complains
that the four-year sentence for obstruction of justice is unconstitutionally
harsh because it is near the maximum sentence of five years for this grade of
the offense under the sentencing provision.
The state argues that the net result from the resentencing is that
Gilcrease will serve the same amount of time as the prior sentence. In the
original appeal, this court expressly stated that it did not make any 4 determination that the sentence was excessive; however, it was clear that the
prior sentencing judge inadvertently sentenced the defendant under the
middle grade provision for obstruction of justice that provided a 20-year
maximum, instead of under the lower grade, which provided a 5-year
maximum. Hence, we concluded only that the sentence was statutorily
illegal.
Gilcrease argues that the sentencing court on remand was required not
only to impose a lesser term of imprisonment under the statute, but also
required to order that the sentence imposed be served concurrently with the
other sentences, because the vacated sentence was ordered to be served
concurrently at the original sentencing.
Penalties for Obstruction of Justice
The penalties of imprisonment for the offense of obstruction of justice
have three grades or levels, and the grade is determined by the maximum
term of imprisonment for the criminal offense proceeding involving the
obstruction of justice by the defendant. In Gilcrease’s case, the obstruction
of justice involved a criminal proceeding against him for second degree
battery. The term of imprisonment for second degree battery is a maximum
of eight years with or without hard labor. Because a second-degree battery
conviction specifies that the sentence imposed may be “with or without hard
labor,” the obstruction of justice offense falls under the lowest grade, which
provides a maximum term of imprisonment of five years with or without
hard labor.
New Resentencing Hearing
Because the original sentencing judge no longer sat on the criminal
bench, this resentencing matter fell to Judge Don E. Hathaway. Judge 5 Hathaway held a sentencing hearing in which he reviewed the facts of the
case in light of La C. Cr. P. art. 894.1(A) & (B). The court concluded that
all three factors of La. C. Cr. P. art. 894.1(A) were applicable, and each
requires a sentence of imprisonment if applicable to the instant case. Judge
Hathaway further found that several aggravating factors in Art. 894.1(B)
applied, including (1) the defendant exhibited deliberate cruelty to the
victim; and (6) the offender used threats of or actual violence in the
commission of the offense. Factors related to the obstruction of justice
included (7) the offender used or caused others to use violence, force, or
threats with the intent to influence the institution, conduct, or outcome of the
criminal proceedings; and (8) the offender committed the offense in order to
facilitate or conceal the commission of another offense. The court found
that none of the mitigating factors applied.
The factors mentioned by Judge Hathaway differed from those listed
by the previous judge, who listed all three factors in Art. 894.1(A), but only
factors (1), (6), and (9) under Art. 894.1(B). The difference is that the
factors in Art. 894.1(B) listed by the original judge related only to the
second degree battery against Ms. Cliburn, whereas factors (7) and (8)
identified by Judge Hathaway are clearly related to the obstruction of justice
charge and surely had some role in the sentence he imposed.
After listing these factors, the court imposed a four-year sentence at
hard labor to be run consecutively to all other sentences. The court further
correctly advised Gilcrease of the time delays to file a motion to reconsider,
to file a motion to appeal, and instructed him that he had two years from the
date his conviction and sentence become final to file for post-conviction
relief. 6 This appeal followed.
DISCUSSION
Gilcrease’s first assignment of error alleges that his constitutional
rights were violated when the court reduced the 10-year concurrent sentence
to a 4-year consecutive sentence. First, he argues that since the original 10-
year concurrent sentence on the obstruction conviction exceeded the
statutory sentencing range, it follows that the reduced 4-year consecutive
sentence exceeds the court’s statutory sentencing authority because the end
result is that the defendant will serve the same 10-year “illegal” sentence.
Second, Gilcrease argues that there is a presumption of vindictiveness
by the judge in resentencing by ordering the sentence to be served
consecutive to the six-year sentence. However, this argument overlooks that
there is no such presumption where a different judge conducts the
resentencing. Additionally, there is simply no evidence that the sentencing
court was being vindictive.
Third, the defense argues that because there was no change in the
actual facts of the case since the initial sentence, the court could not and did
not justify imposition of consecutive sentences.
The first illegal sentence and the second, legal sentence are not
equivalent. Gilcrease was originally sentenced to a total of 16 years for the
two separate felony convictions – 6 years for second degree battery and 10
years for obstruction of justice. The court ordered that the two sentences
were to be served concurrently, although they arose out of separate and
distinctly different criminal acts by the defendant. On resentencing,
Gilcrease was resentenced by a different judge who reviewed the facts, and
he independently considered the factors of La. C. Cr. P. art 894.1(A) and 7 (B). He identified additional aggravating factors related to the obstruction of
justice charge, and he sentenced the defendant to four years’ imprisonment
at hard labor. This is a statutorily legal sentence that is six years less than
the original sentence. As previously stated, this court never found that the
original 10-year sentence was excessive, and expressly pretermitted that
assignment. We concluded only that the sentence was statutorily illegal, as
the court had read the wrong grade of punishment in the statute. While
arguably all excessive sentences are illegal, a (statutorily) illegal sentence is
not necessarily excessive. The terms are neither synonymous or
interchangeable.
The real issue, then, is whether Judge Hathaway’s order that the four-
year sentence be served consecutively constitutes an illegal or excessive
sentence.
La. C. Cr. P. art. 883 states:
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.
The resentencing court was under no obligation to justify imposition
of consecutive sentences in this case where the two offenses were not based
on the same act. State v. Johnson, 38,001 (La. App. 2 Cir. 2/12/04), 865 So.
2d 346; State v. Nelson, 467 So. 2d 1159 (La. App. 2 Cir. 4/3/1985).
Nevertheless, the record shows that the court justified the sentence it
imposed by finding aggravating circumstances related to the obstruction of
8 justice conviction. Although Gilcrease contends that the court had no basis
to impose a consecutive sentence because “the facts” of the case have not
changed,” “the findings” of aggravating factors by the court have indeed
changed, as identified by Judge Hathaway. Judge Hathaway identified two
aggravating circumstances related to the obstruction of justice charge under
Art. 894.1, namely (7) subsequent to the offense the offender used threats
with the intent to influence the conduct or outcome of the criminal
proceedings, and (8) the offender committed the offense (obstruction) in
order to conceal or facilitate the commission of another offense (battery).
Finally, Gilcrease argues that the trial court impermissibly imposed an
increased sentence upon him on remand, in contravention of North Carolina
v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). He
contends this constituted a judicial “vendetta” against him.
In North Carolina v. Pearce, supra, the Supreme Court held that
neither the double jeopardy provision nor the Equal Protection Clause
imposed an absolute bar to a more severe sentence upon a reconviction.
However, the court found that the due process clause of the 14th
Amendment prohibited increased sentences when the increase was
motivated by vindictiveness on the part of the sentencing judge. “And since
the fear of such vindictiveness may unconstitutionally deter a defendant’s
exercise of the right to appeal or collaterally attack his first conviction, due
process also requires that a defendant be freed of apprehension of such a
retaliatory motivation on the part of the sentencing judge.” Id.
The Supreme Court has clarified its holding in Pearce in several
subsequent cases. According to these cases, Pearce established a
prophylactic rule by which a presumption of vindictiveness is deemed to 9 exist when a judge imposes a more severe sentence upon a defendant who
successfully exercised his right to appeal or to attack his conviction
collaterally. This presumption of vindictiveness may be overcome only by
objective information in the record justifying the increased sentence.
That decision, as we have said, was premised on the apparent need to
guard against vindictiveness in the resentencing process. Pearce was not
written with a view to protecting against the mere possibility that, once the
slate is wiped clean and the prosecution begins anew, a fresh sentence may
be higher for some valid reason associated with a need for flexibility and
discretion in the sentencing process. The possibility of a higher sentence
was recognized and accepted as a legitimate concomitant of the retrial
process.
However, “the presumption of vindictiveness is inapplicable where, as
here, different sentencers have imposed the different sentences against the
defendant, because a sentence ‘increase cannot truly be said to have taken
place.” Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 979, 89 L. Ed.
2d 104 (1986); State v. Rodriguez, 550 So. 2d 837 (La. App. 2 Cir. 9/27/89).
Where the presumption does not apply, the defendant may still be
entitled to relief, but he must affirmatively prove actual vindictiveness.
Wasman v. United States, 468 U.S. 559, 104 S. Ct. 3217, 82 L. Ed. 2d 424
(1984); State v. Rodriguez, supra.
After review, we find no evidence that the resentencing court was
acting vindictively when sentencing Gilcrease and ordering that the four-
year sentence for obstruction of justice be served consecutive to the sentence
for second degree battery.
This assignment is without merit. 10 In his second assignment, Gilcrease argues that the four-year sentence
is unreasonably close to the five-year maximum sentence in this case, and
therefore unconstitutionally excessive.
Appellate courts utilize a two-pronged analysis in reviewing a
sentence to determine whether it is excessive. First, the record must show
that the trial court considered the factors in La. C. Cr. P. art. 894.1. The trial
judge is not required to list every aggravating or mitigating circumstance so
long as the record reflects that he adequately considered the guidelines of the
article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Sandifer, 53,276
(La. App. 2 Cir. 1/15/20), 289 So. 3d 212; State v. DeBerry, 50,501 (La.
App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17), 219
So. 3d 332. The goal of La. C. Cr. P. art. 894.1 is for the court to articulate
the factual basis for the sentence, and not simply mechanical compliance
with its provisions. Where the record clearly shows an adequate factual
basis for the sentence imposed, remand is unnecessary even where there has
not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419
So. 2d 475 (La. 1982); State v. DeBerry, supra. The important elements
which should be considered are the defendant’s personal history (age, family
ties, marital status, health, employment record), prior criminal record,
seriousness of the offense, and the likelihood of rehabilitation. State v.
Jones, 398 So. 2d 1049 (La. 1981); State v. DeBerry, supra. There is no
requirement that specific matters be given any particular weight at
sentencing. State v. DeBerry, supra; State v. Shumaker, 41,547 (La. App. 2
Cir. 12/13/06), 945 So. 2d 277, writ denied, 07-0144 (La. 9/28/07), 964 So.
2d 351.
11 In the second prong of the analysis, the court determines whether the
sentence is constitutionally excessive. A sentence violates La. Const. art. I,
§ 20, if it is grossly out of proportion to the seriousness of the offense or
nothing more than a purposeless and needless infliction of pain and
suffering. State v. Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno,
384 So. 2d 355 (La. 1980). A grossly disproportionate sentence shocks the
sense of justice when the crime and punishment are viewed in light of the
harm done to society. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d
166; State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18), 246 So. 3d 639,
writ denied, 18-0259 (La. 10/29/18), 254 So. 3d 1208.
The trial court has wide discretion to impose a sentence within the
statutory limits, and the sentence imposed will not be set aside as excessive
absent a manifest abuse of that discretion. State v. Williams, 03-3514 (La.
12/13/04), 893 So. 2d 7; State v. Diaz, 46,750 (La. App. 2 Cir. 12/14/11), 81
So. 3d 228. On review, an appellate court does not determine whether
another sentence may have been more appropriate, but whether the trial
court abused its discretion. State v. Williams, supra; State v. Free, 46,894
(La. App. 2 Cir. 1/25/12), 86 So. 3d 29.
The record shows that prior to imposing sentence, the court carefully
reviewed the factors under La. C. Cr. P. art. 894.1. The four-year sentence
imposed was within the statutory range for the offense, and the record
establishes a factual basis for that sentence.
Furthermore, we find that the sentence is neither constitutionally
excessive, nor grossly out of proportion to the seriousness of the offense or
nothing more than a purposeless and needless infliction of pain and
suffering. State v. Dorthey, supra; State v. Bonanno, supra. This sentence 12 in no way shocks the sense of justice when the crime and punishment are
viewed in light of the harm done to society by this type of crime, namely, the
brutal physical abuse of women.
Given Gilcrease’s repeated display of utter disrespect for the law and
the court by repeatedly violating the protective order issued to prevent him
from contacting the victim and trying to persuade her to drop the charges
against him, this sentence is not excessive.
This assignment is without merit.
CONCLUSION
Accordingly, for the reasons stated hereinabove, the conviction for
obstruction of justice and four-year sentence at hard labor to be served
consecutively to all other sentences, is affirmed.
CONVICTION AND SENTENCE AFFIRMED.