State of Louisiana v. John E. Gilcrease

Judgment rendered November 17, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,122-KA
No. 54,123-KA
(Consolidated Cases)

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. 367,300

Honorable Katherine Dorroh, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Sherry Watters

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

NANCY BERGER-SCHNEIDER
RICHARD S. FEINBERG
Assistant District Attorneys

*****

Before MOORE, STEPHENS, and THOMPSON, JJ.

MOORE, C.J.

The defendant, John E. Gilcrease, entered guilty pleas for second

degree battery, a violation of La. R.S. 14:34.1, and obstruction of justice, a

violation of La. R.S. 130.1, as well as several misdemeanors, including false

imprisonment and 14 counts of violation of a protective order. For the

felony convictions, the court sentenced Gilcrease to 6 years at hard labor for

his second-degree battery conviction and 10 years at hard labor for his

obstruction of justice conviction. The court ordered the felony sentences to

run concurrently with the misdemeanor sentences. Gilcrease now appeals

both felony sentences, alleging that the court abused its discretion by

imposing unconstitutionally excessive sentences for each.

For the following reasons, we affirm in part, vacate in part, and

remand for resentencing.

FACTS

Shortly after midnight on May 28, 2019, Caddo Parish Sheriff’s

Deputy Joshua Grimes was dispatched to Willis Knighton South 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

Grimes that her boyfriend, John Gilcrease, with whom she had lived for one

year, had beaten her several times during the previous day. Gilcrease was

not present at the hospital.1

1
Gilcrease claims Ms. Cliburn is his wife, as he did with previous victims. Since
Ms. Cliburn refers to Gilcrease as her boyfriend and is so reported according to Deputy
Grimes’s report, we will do the same.

Ms. Cliburn said the beatings began around noon the day before in the

travel trailer where they have resided for the past year.2 The dispute erupted

over a marriage license and continued during the day until 10:00 p.m. when

Ms. Cliburn escaped and ran to her sister’s house on foot.

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 the gun and shoot him so he could kill her.

When she refused, he pinned her down on the bed with his knees on her

arms and tied a neck tie around her neck. He put 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 he told her she

was not leaving. He said he did not trust her because she was going to call

the cops, and he would go to jail.

She convinced him to let her take a shower, but when she was getting

in 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 staying at his

parents’ house. She said that when they went into the house, John and his

father began arguing. John’s father told John he needed to leave. When

John went back to the trailer, Ms. Cliburn seized the opportunity to flee on

2
The travel trailer was parked in the driveway next to Gilcrease’s parents’ home.

2

foot to her sister’s house located approximately a mile away. When she

arrived there, her sister drove her to the hospital.

Deputy Grimes noted in his report that the victim’s right eye was

black and almost completely swollen shut. Her nose was red and swollen as

well as her lips. She had several scratches on her face and around her neck.

She had purple and black bruising on both of her arms.

Gilcrease was subsequently arrested at the Keith Road address. He

denied any physical altercation with Ms. Cliburn. He said that he fell down

from drinking. Grimes said Gilcrease had scratches on his face and neck,

which Gilcrease said resulted from falling down. Grimes informed him that

he was being arrested for second degree battery and false imprisonment.

Grimes obtained Gilcrease’s consent to go in the trailer where he found

blood on the floor and on a pillow on the bed. He also found a necktie on

the back of a chair seat.

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.

On June 12, 2019, Judge Katherine Dorroh issued a protective order

prohibiting Gilcrease from any contact with Ms. Cliburn, either personally,

electronically, by telephone, in writing or through a third party. Gilcrease

was returned to the CCC that afternoon after he telephoned the victim on her

cell phone, ignoring the court’s protective order. He continued to contact

the victim on her cell phone some 68 times in the days following, even after

Ms. Cliburn repeatedly told him he was not supposed to be calling her.

Additionally, he wrote her several letters telling her to recant her statement

to police about the incident, and he acknowledged in the same letter that he

was asking her to lie about the battery for which he was charged. He told

3

her he could not live without her, and he would kill himself if she did not

take his calls.

For her part, the victim told investigators she was terrified of

Gilcrease. 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.

On September 1, 2020, the state filed an amended the bill of

information charging second degree battery and false imprisonment, and

violation of a protective order (14 counts) (#372733), an offense defined by

La. R.S. 14:79. A second bill was filed charging Gilcrease of obstruction of

justice (#370505), 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.”

Trial was set to commence on September 14, 2020. That morning,

Gilcrease unsuccessfully tried to resurrect a rescinded plea offer from the

state that he had previously rejected. Faced with the prospect of a trial,

Gilcrease ultimately elected to plead guilty to the charges with no

agreement, ostensibly to save Ms. Cliburn from the stress of testifying.

The court informed Gilcrease of the sentencing ranges for each

offense to which he was pleading guilty, and properly Boykinized Gilcrease

before accepting his guilty pleas.

As noted above, the court subsequently sentenced Gilcrease to six

years at hard labor for the second degree battery conviction and 10 years at

hard labor for the obstruction of justice conviction, concurrent with each

other and with the misdemeanor sentences.

4

This appeal followed, wherein Gilcrease contends the court abused its

discretion by imposing excessive sentences for each of the felony

convictions.

DISCUSSION

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.

5

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.

Six-year sentence for second degree battery

By his first assignment of error, Gilcrease alleges that the district

court abused its discretion by imposing a six-year sentence which is

constitutionally excessive under the circumstances of this offense and this

offender. Gilcrease argues that the Louisiana Constitution affords greater

protection in sentencing beyond the U.S. Constitution. It prohibits not only

“cruel” and “unusual” punishment, but also prohibits the imposition of

“excessive” punishment. La. Const. art. I, § 20. He argues that a sentence

6

may be excessive though neither cruel nor unusual. An excessive sentence

occurs, he maintains, when the punishment is too harsh for certain conduct.

Hence, a sentence may be excessive even if it is within the statutory limits if

it is grossly disproportionate to the severity of the offense.

Furthermore, he argues, second degree battery requires that the

offender intentionally inflict “serious bodily injury to the victim.” Serious

bodily injury is defined as bodily injury which involves unconsciousness,

extreme physical pain or protracted and obvious disfigurement, or protracted

loss or impairment of the function of a bodily member, organ or mental

faculty, or a substantial risk of death. Gilcrease argues that Ms. Cliburn’s

injuries consisted merely of a black eye, scratches to her arms and neck, and

emotional trauma. On the spectrum of serious bodily injuries that support a

second-degree battery charge, he argues, Ms. Cliburn’s injuries were

relatively minimal.

Finally, he argues that the broad sentencing range for second degree

battery, i.e., “not more than eight years,” indicates that the legislature

intended to allow the sentencing judge to exercise his or her discretion

according to the individual circumstances of the offense and the offender.

Gilcrease contends that the sentence imposed on him is at the upper end of

the spectrum, which is reserved for the most severe cases, whereas given the

fact that the injuries Ms. Cliburn suffered were relatively minor, his

punishment does not fit the offense and is therefore excessive. While the

sentencing court found no mitigating circumstances, the sanity report

indicated that Gilcrease is 46 years old, a high school graduate, and has two

sons. He was employed as a machinist until he witnessed the gruesome

7

death of a coworker by a machine at work and from which he now suffers

from posttraumatic stress syndrome.

Gilcrease cites several cases where defendants were convicted for

second degree battery and their victims sustained injuries more severe than

Ms. Cliburn, yet they received lesser sentences than his six-year sentence.

However, we observe that in all but one of the cases, the maximum sentence

for second degree battery was only 5 years at the time of the offense.

In State v. Francisco, 10-881 (La. App. 3 Cir. 2/2/11), 55 So. 3d 995,

the defendant kicked and punched his girlfriend on the side of her head,

dragged her by her hair, and slammed her into a door frame knocking her

unconscious. She suffered bruising, swelling on one side of her face, arms

and leg and a broken rib. The court imposed the maximum sentence of five

years at hard labor for second degree battery. The sentence was affirmed on

appeal based on the brutality of the offense and defendant’s history of six

felonies, including three felony arrests for domestic abuse battery,

trespassing, aggravated battery, and violations of protective orders, and

stalking.

Other cases Gilcrease cites are: State v. Thomas, 08-1280 (La. App. 3

Cir. 4/1/09), 7 So. 3d 802 (maximum 5-year sentence upheld where victim

was stabbed twice in the neck and twice in the back with a knife); State v.

Hopkins, 96-1063 (La. App. 3 Cir. 3/5/97), 692 So. 2d 538 (maximum 5-

year sentence upheld where victim was beaten with a thick, tree branch);

State v. McBride, 00-422 (La. App. 3 Cir. 11/15/00), 773 So. 2d 849, writ

denied, 01-294 (La. 2/8/02), 807 So. 2d 858 (4-year, 10-month sentence with

fine upheld where weapon was used to cut victim’s throat, damaging blood

vessels).

8

Gilcrease contrasts these maximum or nearly maximum sentence

cases with two Second Circuit cases in which the defendants received lesser

sentences. In State v. Tisby, 33,591 (La. App. 2 Cir. 6/21/00), 764 So. 2d

209, writ denied, 00-2236 (La. 6/1/01), 793 So. 2d 181, the defendant was

charged with aggravated battery for swinging a “sling blade” (aka a Kaiser

or K-blade) at the victim and cutting his face after the victim had intervened

in a dispute between the defendant and his girlfriend at a barbeque. The jury

returned a responsive verdict of second-degree battery; the defendant was

sentenced to 2½ years at hard labor – half the maximum sentence. In State

v. Jackson, 51,575 (La. App. 2 Cir. 9/27/17), 244 So. 3d 764, this court

affirmed a near-maximum sentence of 4½ years at hard labor for striking his

girlfriend in the face during a dispute. The blow fractured her face and

broke her nose resulting in the loss of one eye and permanent disfigurement.

The defendant had three prior felony convictions.

In this case, the police reports indicate that the defendant tormented

the defendant for several hours by beating and terrorizing her. He threatened

to kill her and himself. He stuffed her mouth with socks so she could not cry

for help, strangled her, pinned her down with his knees, and he pinched her

nostrils shut so she could not breathe until she was unconscious. He

slammed her head against the wall causing one side of her face to be swollen

and she had a black eye swollen shut. He also struck her in the nose. She

had to run a mile to her sister’s house to escape. Her sister immediately took

her to the hospital for treatment.

Regarding Gilcrease’s argument that his sentence is excessive

compared to other cases because Ms. Cliburn’s injuries were relatively

minimal, we note that the degree of injuries sustained by a victim of

9

domestic abuse is only one among several factors a court may consider

while imposing a sentence, including the defendant’s previous criminal

behavior.

Gilcrease has a long history of beating women spanning back 20 years

or more. Although there is a gap in his arrest record of nearly 10 years, we

are also aware that many if not most instances of domestic abuse are never

reported due to the victim’s fear of retribution from the abuser. In addition

to the several battery arrests or convictions in the early 2000s, Gilcrease had

a recent arrest in 2017 for a similar domestic abuse incident involving

another woman just two years prior to this incident. Trial was still pending

in that matter when the instant sentences were imposed. The record shows

that Gilcrease has received the benefit of lenient sentences and plea deals for

his previous offenses, and yet, he has not changed his behavior.

Given these circumstances, we conclude that the sentencing court

properly exercised its broad discretion by imposing a sentence that reflects

the seriousness of the offense and the degree of culpability of the defendant.

Therefore, we conclude that the six-year sentence at hard labor imposed for

this offense was neither excessive, cruel and unusual punishment, nor did the

sentence constitute an abuse of discretion by the sentencing court.

This assignment is without merit.

Ten-year sentence for obstruction of justice

By this assignment of error, the defendant alleges that the district

court abused its discretion by imposing a 10-year sentence which is more

than the statutory maximum for this offense and is constitutionally excessive

under the circumstances of this offense and this offender. However, he also

maintains that a review of the record discloses an error patent in that “the

10

State’s statement of fact does not match the bill of information and does not

provide a legal basis for a valid plea.” Hence, the 10-year sentence is

invalid, he argues, since a valid sentence for him must rest upon a valid and

sufficient statute, indictment and guilty plea. La. C. Cr. P. art. 872.

Gilcrease maintains that the facts alleged in the bill of information do

not fit the recitation of facts by the ADA to which he pled guilty and which

formed the factual basis of his guilty plea. Specifically, he alleges that the

bill charges facts that would violate subparagraph (A)(1) of the statute, but

the facts the ADA recited at the guilty plea support a violation of

subparagraph (A)(2). The bill of information reads:

***

. . .the STATE OF LOUISIANA charges that on or about June 12, 2019, at

and in the Parish, District and State aforesaid

JOHN E. GILCREASE

Committed the offense of

R.S. 14:130.1-OBSTRUCTION OF JUSTICE

In that HE

COUNT 1: committed the offense of OBSTRUCTION OF JUSTICE by
tampering with evidence with the specific intent of distorting the results of
any criminal investigation.
***
(Emphasis supplied).

At the guilty plea colloquy, the judge asked the ADA to “state the

facts” that formed the basis of the charge and to which the defendant was

pleading guilty. The ADA responded:

The state charges that on or about the date of June 12,
2019, in Caddo Parish, Louisiana, that the defendant, John E.
Gilcrease, with a date of birth of 8/12/1972, committed the
offense of violating Revised Statute 14:130.1, obstruction of

11

justice, in that he tampered with evidence or a witness with the
specific intent of distorting the results of any criminal
investigation, specifically by contacting Connie Cliburn, the
witness against him in docket 367,300, which was at that time
pending, and attempting to get her to recant or change her
version of events all of which was contrary to the laws of the
State of Louisiana and against the peace and dignity of the same
and committed in Caddo Parish, Louisiana.

Gilcrease agreed to the facts as recited by the ADA.

Clearly, the language used Count 1 in the bill of information tracks a

portion of subparagraph (A)(1) of the statute. However, the bill simply

charges a violation of R.S. 14:130.1 – Obstruction of Justice. It does not

charge a violation of subparagraph (A)(1) or (A)(2). The language in Count

1 simply alleges that Gilcrease “tampered with evidence with the specific

intent of distorting the results of any criminal investigation.”

The “result[] of the criminal investigation” in this case was the

evidence leading to the instant charge of obstruction in the form of contacts

by telephone and by mail wherein Gilcrease attempted to persuade, induce,

or cajole Ms. Cliburn into changing her statements made to police that led to

his criminal prosecution. Tamper simply means to “meddle” or “interfere”

with. In our view, the acts recited by the ADA constitute “tampering with

the evidence” with specific intent to distort the results of the criminal

investigation.

Importantly, the record does not show that the defense requested a bill

of particulars, nor did Gilcrease object to any problems with the bill prior to

or at his guilty plea and sentencing proceedings. Gilcrease clearly knew

what he was being charged with in the obstruction of justice charge, and he

has not shown that he was misled or that his plea was involuntarily,

unknowingly made or that he was prejudiced in any way.
12

Accordingly, this error patent claim is without merit.

Sentence exceeds the statutory maximum

Gilcrease argues that the 10-year sentence at hard labor imposed by

the court for the obstruction of justice conviction exceeds the statutory

maximum sentence of five years’ imprisonment in this case. This argument

has merit.

At the guilty plea hearing, the court reviewed the possible sentencing

range or exposure for each crime to which Gilcrease was pleading guilty.

The court noted that the penalty for second degree battery is a fine up to

$2,000 or imprisonment, with or without hard labor, for not more than eight

years, or both. For the crime of obstruction of justice, the court read aloud

all three penalties in Section 130.1 Paragraph (B):

(1) When the obstruction of justice involves a criminal
proceeding in which a sentence of death or life imprisonment
may be imposed, the offender shall be fined not more than one
hundred thousand dollars, imprisoned for not more than forty
years at hard labor, or both.

(2) When the obstruction of justice involves a criminal
proceeding in which a sentence of imprisonment necessarily at
hard labor for any period less than a life sentence may be
imposed, the offender may be fined not more than fifty
thousand dollars, or imprisoned for not more than twenty years
at hard labor, or both.

(3) When the obstruction of justice involves any other
criminal proceeding, the offender shall be fined not more than
ten thousand dollars, imprisoned for not more than five years,
with or without hard labor, or both.

After she completed reading the third penalty provision for

obstruction of justice, the judge told Gilcrease that the third provision would

apply to his case.

Inexplicably, however, at sentencing the court imposed a 10-year hard

labor sentence to run concurrently with the other sentences. Because second

13

degree battery does not necessarily require a hard labor sentence, Gilcrease

must be sentenced under the third penalty provision of the statute, whereby

the court may impose a fine up to $10,000, a term of imprisonment up to

five years, with or without hard labor, or both.

We therefore vacate the 10-year concurrent sentence imposed for

Gilcrease’s conviction for obstruction of justice, and remand for

resentencing.

Finally, inasmuch as we have vacated the illegal sentence imposed for

obstruction of justice, defendant’s argument that his 10-year sentence is

excessive is now moot.

CONCLUSION

For the foregoing reasons, we affirm Gilcrease’s conviction and six-

year sentence at hard labor for second degree battery. We affirm Gilcrease’s

conviction for obstruction of justice, but we vacate the concurrent 10-year

sentence imposed for obstruction of justice, and we remand to the district

court for resentencing on that conviction.

AFFIRMED IN PART; SENTENCE VACATED, REMANDED

FOR RESENTENCING.

14