Petition for Writ of Certiorari — John E. Gilcrease, Petitioner v. Louisiana

No. ___________________

In The

Supreme Court of the United States

JOHN GILCREASE

Petitioner

vs.

THE STATE OF LOUISIANA

Respondent

_____________________

On Petition for Writ of Certiorari to

The Louisiana Supreme Court and Louisiana Court of Appeal, Second Circuit

_____________________

PETITION FOR WRIT OF CERTIORARI

_____________________

Sherry Watters

Louisiana Appellate Project

P.O. Box 58769

New Orleans, LA. 70158-8769

(504)723-0284; fax 504-799-4211

sherrywatters@yahoo.com

Appointed Attorney for Indigent Petitioner

QUESTIONS PRESENTED

Were John Gilcrease’s due process rights violated when, after his plea and original sentence

for obstruction of justice that exceeded the maximum statutory term was vacated and remanded, the

court imposed a more onerous, consecutive sentence? Does the harsher sentence violate his right to

appeal and conflict with the decision of the Supreme Court of the United States, North Carolina v.

Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) concerning the presumption of

judicial vindictiveness?

Particularly where the State had not objected to or appealed the concurrent sentences

originally imposed, did increasing the sentence on remand by ordering that it be served consecutively

violate due process?

Where on remand, after originally imposing a sentence beyond statutory limits, the district

court failed to articulate any objective information concerning conduct on the part of defendant

occurring subsequent to the original sentencing, did the Court violate John Gilcrease’s due process

rights by adding the condition of consecutive sentences to the sentence?

Did the Louisiana Second Circuit Court of Appeal err in affirming an increased sentence on

remand in a case where the defendant entered a plea and there was no new information on remand?

Did the Louisiana Supreme Court err in denying discretionary review?

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LIST OF PARTIES

All parties appear in the caption of the case on the cover page:

State of Louisiana, through the Office of the Caddo Parish District Attorney

John Gilcrease, an individual incarcerated in the State of Louisiana

No other cases are directly related.

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TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv-vi

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AUTHORITY INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-3

REASONS FOR GRANTING THE WRIT:

A. Due Process Violated By Adding Consecutive Sentence on Remand . . . . . . . . . . . . . . . . 4-18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

PETITIONER’S APPENDIX

A. Original Opinion of the 2nd Circuit Court of Appeal, State of Louisiana . . . App. A 1-9

B. Opinion on Remand of the 2nd Circuit Court of Appeal, State of La. . . . . App. B 1-14

C. Opinion of the Louisiana Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . App.C 1

D. Transcript of Re-sentencing on remand. . . . . . . . . . . . . . . . . . . . . . . . . . . . App. D 1-9

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TABLE OF AUTHORITIES

CONSTITUTIONS and STATUTES

U.S. Const. amend. V. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,4

U.S. Const. amends. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

U.S. Const. amends. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,4,17

SUP. CT. R. 13(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

La. Constitution, Art. 1, Sec. 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

La. Constitution, Art. 1, Sec. 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

La. Constitution, Art. 1, Sec. 22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

La. Constitution, Art. 5, Sec. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

L.S.A.-R.S. 14:130.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,16

L.S.A.-C.Cr.P. Art. 883 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

U.S. CASES

Alabama v. Smith, 490 U.S. 794, 490 U.S. 794; 109 S. Ct. 2201; 104 L. Ed. 2d 865

(1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,5,13

Blackledge v. Perry, 417 U.S. 21, 27, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) . . . . . . . . . . . . . 4

Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973) . . . . . . . . . . . . 13

Colten v. Kentucky, 407 U.S. 104, 116-117, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972) . . . . 12,13

Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) . . . . . . . . . . . . 17

Lafler v. Cooper, 566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) . . . . . . . . . . . . 17

McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) . . . . . . . . . . . . . 17

-iv-

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). . . . . . . . . . i,4,5

Rinaldi v. Yeager, 384 U.S. 305, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966) . . . . . . . . . . . . . . . . 10

Simpson v Rice, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); Simpson v. Rice, 396 F.2d

499, 1968 U.S. App. LEXIS 6718 (5th Cir. Ala., 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Short v. United States, 120 U.S. App. D.C. 165, 344 F.2d 550 (1965) .. . . . . . . . . . . . . . . . . . . 8

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). . . . . . . . . . . 17

Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986) . . . . . . . . . . . . . 13

Thigpen v. Roberts, 468 U.S. 27, 30, 104 S. Ct. 2916, 82 L. Ed. 2d 23 (1984) . . . . . . . . . . . . . . 4

United States v. Campbell, 106 F.3d 64 (5th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982). . . . . . . . . . 11

United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20 L. Ed. 2d 138 (1968). . . . . . . 8,10,12

United States v. Resendez-Mendez 251 F.3d 514 (5th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . 7,14

Worcester v. Commissioner, 370 F.2d 713 (1st Cir. 1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

LOUISIANA CASES

Davidge v. Magliola, 346 So. 2d 177 (La. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State v. Allen 446 So. 2d 1200 (La. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Carpenter, 390 So.2d 1296, (La. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

State v. Franks, 391 So.2d 1133 (La. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State v. Gaspard 09-1516 (La.App. 3 Cir. 10/13/10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

State v. Gasser 346 So. 3d 249; 2022-00064 (La. 06/29/22) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

State v. Gilcrease 329 So. 3d 1173, 54,122 (La.App. 2 Cir. 11/17/21) . . . . . . . . . . . . . . 1,2,3,15

State v. Gilcrease 2022 La. App. LEXIS 2068; 54,905 (La.App. 2 Cir. 11/30/22); 2022 WL 17332361,

–So.3d–. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

-v-

State v. Gilcrease, No. 2022-01845 (La. 05/31/23); – So.3d –, 2023 La. LEXIS 1193, 2023 WL

3734757 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

State v. Goodley, 423 So. 2d 648 (La. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

State v. Merrell, 511 So.2d 1234 (La.App. 2 Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,16

State v. Roberts 704 So. 2d 368; 97-787 (La.App. 3 Cir. 12/10/97) . . . . . . . . . . . . . . . . . . . . . . 9

State v. Rutledge, 259 La. 544, 250 So.2d 734 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Swan 569 So. 2d 155 (La. 1 Cir. App. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Upton, 396 So.2d 1309 (La. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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OPINIONS BELOW

The original opinion of the State of Louisiana Court of Appeal, Second Circuit, in this matter,

State v. Gilcrease, 329 So. 3d 1173, 54,122 (La.App. 2 Cir. 11/17/21), is attached as Pet. App. “A.”

The second opinion of the State of Louisiana Court of Appeal, Second Circuit, in this matter, State

v. Gilcrease, No. 54,905 (La.App. 2 Cir. 11/30/22); 352 So.3d 153, 2022 La. App. LEXIS 2068;

2022 WL 17332361, after remand, is attached as Pet. App. “B.” The opinion of the Supreme Court

of Louisiana denying the defendant’s application for a Writ of Certiorari for discretionary review,

State v. Gilcrease, No. 2022-01845 (La. 05/31/23); – So.3d –, 2023 La. LEXIS 1193, 2023 WL

3734757, is attached as Pet. App. “C.” 1

JURISDICTION

The Louisiana Supreme Court entered judgment against the Petitioner, denying discretionary

review, on May 31, 2023. This petition is filed within 90 days of that date. Accordingly, this Court

has jurisdiction to review the judgment of the Louisiana Supreme Court, declining to review the

decision of the Louisiana Court of Appeal, Second Circuit. SUP. CT. R. 13(1); 28 U.S.C. § 1257(a).

1

Hereafter, citations to the appendices will be cited as “Pet. App. A or B.” Citations to the record

below will be cited as “R.__” according to the designations set for the appellate record filed with the

Louisiana, Second Circuit Court of Appeal.

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CONSTITUTIONAL PROVISIONS AND AUTHORITIES INVOLVED

1. The Fifth Amendment to the United States Constitution provides in relevant part: “No

person shall . . . be deprived of life, liberty, or property, without due process of law. . . .”

2. The Fourteenth Amendment to the United States Constitution provides in relevant part:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive any person of life, liberty, or property, without due

process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

STATEMENT OF THE CASE

John Gilcrease and his wife, Connie Cliburn, got in an alcohol and drug induced physical

altercation on May 27, 2019, resulting in John Gilcrease’s arrest.2 A protective order was issued

prohibiting him from contacting Ms Cliburn. Despite the protective order, Mr. Gilcrease made phone

calls and wrote letters from jail to Ms Cliburn, asking her to drop the charges. There was no

allegation that he threatened to harm her in the calls or letters. Rather, he asked her to recant her

statement to police. He told her he could not live without her, and he would kill himself if she did not

take his calls.3

The calls and letters resulted in fourteen misdemeanor counts of violating a protective order

and a felony obstruction of justice charge for tampering with evidence to disrupt the results of an

investigation, in violation of La. R.S. 14:130.1.(R.3) On the day of trial, Mr. Gilcrease withdrew his

not guilty pleas and entered pleas of guilty to all charges. (Vol.2, R.178-203). Initially, on October

2

They gave differing accounts as to whether they were married or not. The details of the offenses

are recounted in State v. Gilcrease 329 So. 3d 1173, 54,122 (La.App. 2 Cir. 11/17/21). Pet. App.

“A.”

3

State v. Gilcrease p.4, 329 So. 3d 1173; 54,122 (La.App. 2 Cir. 11/17/21) Pet. App. “A.”

-2-

8, 2020, Mr. Gilcrease was sentenced on the obstruction charge to ten years to be served

concurrently with the six year sentence for second degree battery and the misdemeanor sentences for

false imprisonment and protective order violations. On appeal, the Louisiana Second Circuit Court

of Appeal upheld the six year battery sentence. However, the ten year sentence for obstruction of

justice, which exceeded the statutory limit of five years, was vacated and the case remanded. State

v. Gilcrease 329 So. 3d 1173, 54,122 (La.App. 2 Cir. 11/17/21). Pet. App. “A.”

On remand, John Gilcrease had newly appointed counsel who had never spoken to him before

the scheduled zoom sentencing hearing, but the attorney and the defendant said they were ready for

sentencing nonetheless, believing it to be a ministerial correction. John Gilcrease was re-sentenced

on March 17, 2022 to four years at hard labor, but the Louisiana First Judicial District judge added

that the sentence for obstruction would be served consecutively to those in the other case. (Pet. App.

“D” R.2,10-16)

Mr. Gilcrease’s attorney timely filed a Motion to Reconsider based on the constitutional

errors. It was denied on April 4, 2022. He timely filed a second Motion for Appeal on April 7, 2022.

On November 30, 2022, the Louisiana Second Circuit Court of Appeal affirmed the re-sentencing.

State v. Gilcrease 2022 La. App. LEXIS 2068; 54,905 (La.App. 2 Cir. 11/30/22); 2022 WL 17332361,

–So.3d–. Pet. App. “B.” On May 31, 2023, the Supreme Court of Louisiana denied discretionary

review of the defendant’s application for a Writ of Certiorari, State v. Gilcrease, No. 2022-01845

(La. 05/31/23); – So.3d –, 2023 La. LEXIS 1193, 2023 WL 3734757. Pet. App. “C.” The

constitutionality of the increase to a consecutive sentence on remand on the obstruction charge, and

its chilling effect on his constitutional right to appeal, are the subjects of this petition for writ of

certiorari.

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REASONS FOR GRANTING THE WRIT

John Gilcrease’s original ten year, concurrent sentence was vacated and remanded because

it exceeded the statutory maximum of five years for obstruction of justice under Louisiana law. The

district court on remand imposed a sentence of four years, within the statutory parameters, but added

a new restriction that it be served consecutively. In doing so, the court on remand cited no changes

in facts or circumstances that occurred after the original sentence. The order for a consecutive

sentence, particularly where the State had never objected to or appealed the original concurrent

sentence, violates due process and makes the sentence on remand retaliatory and vindictive.

The Louisiana Second Circuit Court of Appeal erred in upholding the increase to a

consecutive sentence on remand in violation of the defendant’s due process rights. John Gilcrease had

pleaded guilty and appealed only his sentences. There was no change in facts or additional

circumstances occurring between the original sentencing and sentencing on remand. The State never

objected to, or appealed, the original concurrent sentence. By requiring on remand that the four year

sentence be served consecutively to the six year sentence on the related second degree battery charge

(Pet.App.D, R. 2,14-16), the presumption of vindictiveness arose. The Louisiana Supreme Court

denied discretionary review. (Pet.App.C)

The Fifth and Fourteenth Amendments guarantee due process, which includes the right to be

tried and sentenced absent prosecutorial or judicial vindictiveness against a defendant who has

successfully attacked his first sentence.4 The fear of such vindictiveness or retaliation by way of

4

See, e.g., Thigpen v. Roberts, 468 U.S. 27, 30, 104 S. Ct. 2916, 82 L. Ed. 2d 23 (1984) (citing

Blackledge v. Perry, 417 U.S. 21, 27, 94 S. Ct. 2098, 40 L. Ed. 2d 628 (1974) (prosecutorial

vindictiveness); North Carolina v. Pearce, 395 U.S. 711, at 723-24, 89 S.Ct. 2072, 23 L.Ed.2d 656

(1969) (judicial vindictiveness), overruled in part by Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d

865, 109 S. Ct. 2201 (1989).

-4-

imposition of a harsher sentence would deter a defendant from exercising his right to appeal.5 The

seminal case of North Carolina v. Pearce, rendered in 1969, considered two consolidated cases. In

the first, Pearce was convicted at trial but his conviction was vacated. After re-trial, Pearce was given

a greater sentence by the new trial judge. The Court found that due process of law forbids imposition

of "a heavier sentence upon every re-convicted defendant for the explicit purpose of punishing the

defendant for his having succeeded in getting his original conviction set aside". Id. at 723-24.

In the second case, Simpson v. Rice, Rice had pleaded guilty to four separate charges of

second-degree burglary and was sentenced to a total of ten years.6 The guilty pleas were vacated on

appeal. On remand, Rice went to trial rather than plead on three of the charges. After he was

convicted, his sentences totalling twenty-five years were upheld. The Supreme Court in Rice held that

the judicially created presumption of vindictiveness did not apply when the increased re-sentence

came after a trial where the judge learned relevant sentencing information.

The Court in Pearce held that, not only does actual vindictiveness violate due process, but

also, the "apprehension of such a retaliatory motivation on the part of the sentencing judge" does so

as well, because "the fear of such vindictiveness may unconstitutionally deter" defendants from

exercising any rights to appeal and collateral attack. Id. at 725. Therefore, the Court adopted a

prophylactic rule, holding a presumption of vindictiveness applies when defendant receives a greater

sentence after a new trial, unless: the sentencing court affirmatively states objective reasons for that

5

North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled in

part on other grounds, Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d 865, 109 S. Ct. 2201 (1989).

6

Simpson v. Rice, 396 F.2d 499, 1968 U.S. App. LEXIS 6718 (5th Cir. Ala., 1968); Simpson v

Rice, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969)

-5-

sentence; and, those reasons are based upon "information concerning identifiable conduct on the part

of the defendant occurring after the time of the original sentencing proceeding". Id. at 726.

The facts from the original appellate decision (Pet.App.A) were used by the district court in

sentencing on remand and by the Second Circuit in their second decision. No new facts appear on the

re-sentencing record. (Pet.App. D) The State presented no evidence at re-sentencing to the judge.

The transcript of the prior plea was not admitted into evidence. The police report was not admitted

into evidence. The defendant’s rap sheet was not admitted into evidence. There was no pre-sentence

investigation. To dispel the presumption of vindictiveness, the record had to show the sentencing

court affirmatively stated objective reasons for the increase to consecutive sentence; and, that those

reasons are based upon "information concerning identifiable conduct on the part of the defendant

occurring after the time of the original sentencing proceeding. Because the re-sentencing relied

entirely on the prior facts set forth in the original court of appeal’s decision, the Pearce standard

could not be met. There is no factual basis for imposing the harsher restriction of consecutive

sentences.

The sentence for obstruction of justice under the Louisiana statute to which John Gilcrease

pleaded guilty had a five year maximum, yet he was illegally sentenced to ten years.7 On remand,

maintaining the concurrent sentences would have put his sentence within statutory parameters. But

by ordering the sentence to be consecutive to the six year sentence, the district court manufactured

a way to maintain the ten year term that was vacated on first appeal. John Gilcrease’s effective jail

term was doubled without objective reason by the district court ordering the sentence be served

7

La. R.S. 14:130.1(B):“When the obstruction of justice involves any other criminal proceeding,

the offender shall be fined not more than $10,000, imprisoned for not more than five years with or

without hard labor, or both.”

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consecutively, rather than concurrently. Consecutive sentences are harsher than concurrent sentences

and are one way to add to the term of a sentence. They are not preferred in Louisiana.8 In light of the

Pearce decision, the trial judge's failure to articulate reasons for a more severe sentence necessitates

that this Petition for Writ be granted and that the new proviso that the sentence be served

consecutively. sentences be vacated.

In Pearce, the Supreme Court suggested that events subsequent to the first trial that throw

new light upon the defendant's "life, health, habits, conduct, and mental and moral propensities" may

be objective reasons for increasing a sentence after remand. Such information may come to the judge's

attention from evidence adduced at the second trial itself, from a new presentence investigation, from

the defendant's prison record, or possibly from other sources. However, the reasons must be new and

only learned after the original sentencing. Those reasons must be based upon objective information

concerning identifiable conduct on the part of the defendant occurring after the time of the original

sentencing proceeding. The Court in Resendez-Mendez9 held that the standard of review for claims

of vindictiveness on re-sentencing is de novo. The factual data upon which the increased sentence is

8

Under Louisiana law, consecutive sentences are not favored, absent articulated aggravating

circumstances. See State v. Gaspard, 09-1516 (La.App. 3 Cir. 10/13/10) and La.Code Crim.P. art.

883. La. C.Cr.P. Art. 883 provides, “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......” Where consecutive sentences

are ordered, the sentencing court must consider “[T]he defendant's criminal history; the gravity or

dangerousness of the offense; the viciousness of the crimes; the harm done to the victims; whether

the defendant constitutes an unusual risk of danger to the public; the defendant's apparent disregard

for the property of others; the potential for the defendant's rehabilitation; and whether the defendant

has received a benefit from a plea bargain.” Gaspard, supra.

9

United States v. Resendez-Mendez, 251 F.3d 514 (5th Cir. 2001)

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based must be made part of the record, so that the constitutional legitimacy of the increased sentence

may be fully reviewed on appeal.

Mr. Gilcrease pleaded guilty and only appealed his sentences. The State did not appeal the

concurrent sentences, nor apply for review when Mr. Gilcrease succeeded on appeal. Mr. Gilcrease

did not go to trial on remand and no new facts were learned. There was no new information to justify

the change to consecutive sentences in this case. Moreover, where the district court had previously

ordered concurrent sentences, the re-sentencing addition of a consecutive sentence is presumptively

vindictive and retaliatory under Pearce.

This Petition should be granted as, “Tolerance of a court's vindictiveness might 'chill' a

defendant's right to seek an appeal of (his) sentence.”10 Due process requires that a defendant not face

increased punishment solely as retribution for successfully appealing an illegal sentence. The Court

in Pearce said, “punishing the defendant for his having succeeded in getting his original conviction

set aside,” or “penalizing those who choose to exercise” constitutional rights to appeal is “patently

unconstitutional.”11 A court is “without right to . . . put a price on an appeal. A defendant's exercise

of a right of appeal must be free and unfettered. . . . It is unfair to use the great power given to the

court to determine sentence to place a defendant in the dilemma of making an unfree choice.”12

John Gilcrease exercised his constitutional right to criminal appeal under La. Const. Art. 1,

Sec. 19 and was successful. But even if the first conviction had been set aside for nonconstitutional

10

Pearce also applies to resentence on remand. U.S. v. Campbell, 106 F.3d at 67 (5th Cir. 1997)

11

Pearce, at 723; United States v. Jackson, 390 U.S. 570, 581, 88 S. Ct. 1209, 20 L. Ed. 2d 138

(1968).

12

Worcester v. Commissioner, 370 F.2d 713, 718. See Short v. United States, 120 U.S. App. D.

C. 165, 167, 344 F.2d 550, 552.

-8-

error, the imposition of a harsher penalty for having successfully pursued a statutory right would be

no less a violation of due process of law. A new, stiffer sentence, with enhanced punishment, based

upon vindictiveness or retribution, would be “a flagrant violation of the rights of the defendant."13 In

this case, John Gilcrease’s original sentence exceeded the statutory authority, imposing six years past

the maximum, a violation of the due process clauses of the federal and state constitutions. Yet he was

penalized for exercising his constitutional rights when, after his successful first appeal, his sentence

was ordered to be served consecutively on remand, rather than concurrently as originally imposed.

Louisiana courts have heeded Pearce generally.14 In State v. Allen 446 So. 2d 1200 (La.

1984), the Court concluded that, since Allen's sentence was significantly increased on remand without

articulated reasons for the more severe sentence as required by North Carolina v. Pearce, supra, the

13

Pearce, supra, citing Van Alstyne, In Gideon's Wake: Harsher Penalties and the "Successful"

Criminal Appellant, 74 Yale L. J. 606 (1965); Note, Unconstitutional Conditions, 73 Harv. L. Rev.

1595 (1960).

14

The Louisiana Supreme Court adopted the Pearce rule in State v. Rutledge, 259 La. 544, 250

So.2d 734 (1971). In State v. Roberts, 704 So. 2d 368; 97-787 (La.App. 3 Cir. 12/10/97), the Court

found as error patent in the second appeal that the trial court imposed a more severe sentence on

remand for distribution of cocaine even though part of the longer sentence was suspended. The Court

said, “In order for the trial court to impose a more severe sentence upon a defendant, due process

requires that the trial court state in the record reasons for doing so and the reasons must be based on

objective information concerning conduct of a defendant occurring after the original sentencing.

In State v. Swan, 569 So. 2d 155 (La. 1 Cir. App. 1990), on remand for resentencing, the

sentences imposed were considerably lower than the original sentences but included probation

conditions which could result in possible jail time. Because it was possible that a more severe

sentence would result, and the trial court gave no reasons for the new requirement, the Swan court

deleted the conditions that made the sentence more severe.

In State v. Upton, 396 So. 2d 1309 (La. 1981), Upton’s suspended sentence with conditions was

vacated on appeal. On remand, Upton was sentenced to jail time. The Court found that the only

reason given for the change was to avoid complications with a suspended sentence. The district

court's failure to articulate reasons for the more severe sentence necessitated a second remand for

resentencing. The Court cited North Carolina v. Pearce, supra.

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sentence had to be vacated and the case remanded to the trial court for re-sentencing.15 Louisiana

Supreme Court Justice Crichton noted in a concurrence in State v. Gasser 346 So. 3d 249; 202200064 (La. 06/29/22) that a defendant's constitutional right to appeal16 would be impermissibly chilled

if he was subject to a greater offense after appeal and wrote, citing federal law:

“Due process of law requires that avenues of appellate review, once established, must

be kept free of obstacles that impede open and equal access to the courts. Rinaldi v.

Yeager, 384 U.S. 305, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966). Any penalization,

even incidental, for those who choose to exercise constitutional rights "would be

patently unconstitutional." United States v. Jackson, 390 U.S. 570, 581-82, 88 S. Ct.

1209, 20 L. Ed. 2d 138 (1968). Appeals have always been favored in Louisiana.

Davidge v. Magliola, 346 So. 2d 177 (La. 1977)”

In the original sentencing in this case, the district court determined that the sentences should

be served concurrently. The State did not file a Motion to Reconsider the concurrent sentences

imposed, nor did the State appeal. The concurrent nature of the sentences was never contested.

Despite the lack of objection to concurrent sentences at any stage, in its second decision, in order to

uphold the consecutive sentence imposed on remand, the Court of Appeal tried to step back from its

original decision and fault the original sentence. The Louisiana Second Circuit Court of Appeal

incorrectly faulted the original sentencing judge for imposing concurrent sentences and opined that

consecutive sentences would have been appropriate at original sentencing, to avoid considering

whether it was constitutionally imposed on re-sentencing.

15

The Court also cited State v. Rutledge, supra, State v. Franks, 391 So.2d 1133 (La. 1980), and

State v. Upton, 396 So.2d 1309 (La. 1981).

16

Citing generally La. Const. Art.1,§19, right to appeal in criminal cases; La. Const. Art. 5, § 10

appellate jurisdiction over criminal cases; La. Const. art. 1, § 22 "All courts shall be open, and every

person shall have an adequate remedy by due process of law and justice, administered without denial,

partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights."

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The original concurrent sentence was not in dispute in the appeal of the re-sentencing. Yet,

instead of examining whether the district court on remand had provided objective reasons to support

the add a consecutive sentence, the Court mistakenly went back and faulted the original sentence.17

The Court erroneously claimed that the original sentencing judge focused on the details of the battery

only, ignored the obstruction charge, and did not pay enough attention.

The original court that sentenced John Gilcrease clearly and correctly intended the concurrent

sentence. John Gilcrease was being sentenced for making phone calls and writing letters from jail to

Ms Cliburn, asking her to drop the charges. There was no allegation that he threatened to harm her

in the calls or letters. Rather, he asked her to recant her statement to police. He told her he could not

live without her, and he would kill himself if she did not take his calls. The original sentencing judge

had issued the protective orders and was very aware of the defendant’s conduct and that it was all

part of, or related to, the same incident. It is disingenuous to claim that the concurrent sentence was

a mistake just to excuse the impermissible change to consecutive sentences on remand.

It was not John Gilcrease’s burden to show actual vindictivenss in re-sentencing. Rather, it

was the State’s burden to rebut the presumption of vindictiveness that arose when the consecutive

sentence order was added. The Court has recognized the institutional bias inherent in the judicial

system against the retrial of issues that have already been decided.18 The Court noted that a lower

court may be vindictive, knowingly or not, when a case is remanded because "the court with whose

17

Pet.App.B: Second Cir. Op., p.10-11: “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.” Second Cir. Op. p. 6: “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,”

18

United States v. Goodwin, 457 U.S. 368, 102 S. Ct. 2485, 73 L. Ed. 2d 74 (1982)

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work [defendant] was sufficiently dissatisfied to seek a different result on appeal, . . . is asked to do

over what it thought it had already done correctly."19

John Gilcrease successfully appealed the original sentence as the illegal term of ten years for

obstruction of justice exceeded the statutory authority. Under the Constitution, and according to his

comments at re-sentencing, he expected to be fairly sentenced without the court penalizing him

for seeking that appeal. Fear of judicial vindictiveness would have forced him to choose between

serving a sentence that exceeded statutory authority or risk a more onerous sentence, such as the

consecutive sentences. Such a "chilling effect" on defendant's right to appeal would be impermissible

and unconstitutional.”20

The Louisiana Second Circuit in its second decision, after remand, affirmatively stated that

"the facts" of the case have not changed.21 Indeed, the facts relied on by the Louisiana district court

in sentencing on remand and the Court of Appeal in its second decision were those that were set forth

in the original sentencing and in the original appellate decision. (See Pet.App.A,B,D) The State

presented no evidence at re-sentencing to the judge. The transcript of the prior plea was not admitted

into evidence. The police report was not admitted into evidence. The defendant’s rap sheet was not

admitted into evidence. There was no pre-sentence investigation. There was no objective reason for

the court, on remand, to increase the sentence by ordering consecutive sentences.

19

The same institutional pressure that supports the doctrines of stare decisis, res judicata, the law

of the case, and double jeopardy might also subconsciously motivate a vindictive prosecutorial or

judicial response to a defendant's exercise of his right to obtain a retrial of a decided question. Colten

v. Kentucky, 407 U.S. 104, 116-117, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972)

20

Jackson, 390 U.S. at 582; State v. Goodley, 423 So. 2d 648, 652 (La. 1982)

21

La. Second Cir. Ct. App. Op. p. 9, Pet.App. C

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Since the Pearce decision in 1969, the Supreme Court has narrowed the application of this

broad presumption of judicial vindictiveness in specific situations that do not apply herein. In Colten

v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972), the Court found that Kentucky's

two-tier criminal court system did not require the Pearce prophylactic rule. There is no two tier

system in Louisiana to protect John Gilcrease from this judicial vindictiveness.

In Chaffin v. Stynchcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973), the Court

found that the Pearce presumption did not apply when a jury, rather than a judge, imposed a greater

sentence after retrial. A jury would not (should not) know of the prior sentence; would have no

institutional interest in discouraging meritless appeals; and the jury had no personal stake in the prior

conviction and no motivation to engage in self-vindication". Id. at 27. John Gilcrease pleaded guilty

and no jury was involved in any stage to buffer judicial vindictiveness.

In Texas v. McCullough, 475 U.S. 134, 106 S. Ct. 976, 89 L. Ed. 2d 104 (1986) the Court

found that the Pearce presumption did not apply after a jury verdict was vacated on a successful

motion for new trial and, after re-trial, McCullough’s sentence was increased by the judge that

McCullough requested preside. There was no presumption of vindictiveness where the judge gave

objective findings of fact, based on information from the retrial, as to why the sentence was greater.

The Court last addressed judicial vindictiveness in Alabama v. Smith, 490 U.S. 794, 109 S.

Ct. 2201, 104 L. Ed. 2d 865 (1989), where, after pleading guilty, Smith appealed and was granted

a trial before the judge who had accepted the earlier guilty plea. The Court upheld the greater

sentence imposed after Smith was convicted and a second sentence imposed, because the trial judge

had the benefit of trial testimony and details that were not known at the original sentence on the plea.

-13-

The judge who increased John Gilcrease’s sentence to consecutive sentences did not hear a trial or

anything new before imposing the harsher sentence.

This case is a pure application of the Pearce standard. The Louisiana Second Circuit erred

in failing to follow Pearce. The narrowing decision in Alabama v. Smith does not apply to the present

case. Mr. Gilcrease’s sentence on his original plea was vacated as it exceeded statutory authority and

the case was remanded solely for re-sentencing. There was no new trial. There were no additional

facts heard. The Court in Alabama v. Smith emphasized that the Pearce presumption applies only

where “there is a reasonable likelihood that the increase in sentence is the product of actual

vindictiveness on the part of the sentencing authority.” Id. at 799-800 Here, the district court’s sole

role was sentencing. Without any objective, new information, it is reasonably likely that the court

required the sentence be served consecutively, instead of concurrently as previously ordered, due to

judicial vindictiveness. This Petition for Writ should be granted to vacate the order for a consecutive

sentence.

In Resendez-Mendez,22 the original sentence of 57 months was vacated because the district

court had failed to afford defendant the opportunity to speak in mitigation. On remand, the judge

resentenced defendant to 71 months in prison. The Court in Resendez-Mendez held that the great

deference usually owed to a district courts' sentencing is erased by the Pearce presumption when a

harsher sentence is imposed on resentencing. For a harsher, stiffer sentence to stand on remand, the

prosecution must rebut the presumption of vindictiveness by articulating specific reasons, grounded

in particularized facts that arise either from newly discovered evidence or from events that occur after

the original sentencing. In Resendez-Mendez, the Court said the defendant’s statements at re22

United States v. Resendez-Mendez, 251 F.3d 514 (5th Cir. 2001)

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sentencing did not constitute either objective information newly acquired by the court following the

original sentencing or sentence-enhancing occurrences post-dating the original sentencing.

Even though there was no evidence that the district court was actually motivated by subjective

vindictiveness in imposing the harsher sentence in Resendez-Mendez, because the district court neither

expressed nor indicated any objective reason sufficient to rebut the Pearce presumption of

vindictiveness, the Court vacated the sentence that was imposed on remand and remanded again.

The presumption of vindictiveness, if not actual vindictiveness, was not rebutted by the

prosecution in this case. The original ten year concurrent sentence was vacated by the Louisiana

Court of Appeal in State v. Gilcrease 329 So. 3d 1173, 54,122 (La.App. 2 Cir. 11/17/21)

(Pet.App.A) because the correct sentencing range was zero to five years under La. R.S. 14:130.1(B).

When John Gilcrease was re-sentenced, the district court deliberately calculated that, by adding the

requirement of consecutive sentences, the original, illegal term of ten years could be maintained. On

remand, the district court imposed the upper range sentence of four years at hard labor, but imposed

the harsher requirement of consecutive sentence, thereby maintaining a ten year sentence. (R.2,10-16)

The vindicitveness of the court is apparent in its mission to insure that John Gilcrease did not receive

any benefit from the successful appeal of the illegal sentence.

In a very similar case, the trial court increased the defendant's punishment to consecutive

sentences on re-sentencing with the purpose of maintaining the original sentence in State v. Merrell,

511 So.2d 1234 (La.App. 2 Cir. 1987). In Merrell, the Louisiana Second Circuit presumed

vindictiveness and held, in pertinent part and with emphasis added:

“We conclude the trial judge erred in increasing defendant's original sentence by

ordering it to be served consecutive to any other sentence because the trial judge

failed to articulate, for the record, any conduct on the part of defendant occurring

-15-

subsequent to the original sentencing proceeding which would justify increasing the

original sentence......The trial judge, therefore, in resentencing defendant to serve a

twelve year hard labor sentence to be served consecutive to his prior six year

sentence, has reimposed, for all practical purposes, a prison term equal in length

to the original eighteen year illegal sentence.

The trial judge, in resentencing defendant, relied upon the same factual information

considered by the trial judge who imposed the original illegal sentence. Increasing

defendant's original sentence, without new and additional justification, therefore,

violated defendant's due process rights because it creates the appearance of

vindictiveness against defendant for successfully attacking his sentencing. The

sentence must be vacated and the case remanded for resentencing.” Id. at 1236-37

In the case under review, instead of applying Merrell which had correctly applied Pearce,

the Louisiana Second Circuit mistakenly relied on “findings” by the re-sentencing judge that were

only recitations of the elements of the obstruction statute, not actual facts or recently learned facts

about Mr. Gilcrease’s conduct. The Court said:

"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).”

These so called new “findings” are merely a recitation of the very definition of the offense of

obstruction of justice for which Mr. Gilcrease was being sentenced. The district court and the Court

of Appeal relied totally on the facts found by the original judge, as set forth in the original decision

to remand. (Pet.App.A). The “findings” are nothing new and no constitute no new conduct of Mr.

Gilcrease. The sentence cannot be enhanced by reciting the definition of the offense.23 As elements

23

La.R.S. § 14:130.1 (A), in pertinent part, states that “The crime of obstruction of justice is any

of the following when committed with the knowledge that such act has, reasonably may, or will affect

an actual or potential present, past, or future criminal proceeding as described in this Section:

(2) Using or threatening force toward the person or property of another with the specific intent to:

(a) Influence the testimony of any person in any criminal proceeding;

(b) Cause or induce the withholding of testimony or withholding of records, documents, or other

-16-

of the offense, they are already included in the sentencing range set by the legislature. Moreover,

these “findings” are not something that happened after the original sentencing.

Sentencing is a critical stage of the proceeding, at which there is a right to the effective

assistance of counsel. A defendant is entitled to the effective assistance of counsel during both the

guilt and sentencing phases.24 This principle is sacrosanct and is firmly ensconced in our federal and

state constitutions.25 It is striking that John Gilcrease’s counsel at the zoom hearing for re-sentencing

had never met him prior to the on-line hearing where they were not in the same location and could

not confer privately. (Pet.App. D, R.10-12) There is no indication that she reviewed the previous

decision. She did not know of any mitigating evidence that was previously introduced. Yet counsel

told the court she was ready for sentencing. The re-sentencing was perfunctory, without either side

introducing any evidence. (See Transcript, Pet.App. D) The defendant himself objected to the

sentence. (R.15-16) A few days later, defense counsel filed a motion to reconsider the sentence and

cited the law on the constitutionality of more onerous sentences on remand, but it was denied.

objects from any criminal proceeding;

24

Lafler v. Cooper, 566 U.S. 156, 165, 132 S.Ct. 1376, 1385-86, 182 L.Ed.2d 398 (2012) ("The

precedents also establish that there exists a right to counsel during sentencing in both noncapital, and

capital cases." (citations omitted)); State v. Carpenter, 390 So.2d 1296, 1299 (La. 1980) ("the sixth

amendment right to counsel applies to all critical stages, including sentencing"), and the right to the

effective assistance of counsel also applies, Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct.

2052, 2063, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771, n.14, 90

S.Ct. 1441, 1449, n.14, 25 L.Ed.2d 763 (1970) ("The right to counsel is the right to the effective

assistance of counsel."); Glover v. United States, 531 U.S. 198, 121 S.Ct. 696, 148 L.Ed.2d 604

(2001) (error resulting in the increase of sentence of any amount can result in ineffective assistance).

25

The Sixth Amendment to the United States Constitution provides in relevant part: “In all

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his

defense.” See also U.S. Const. Amends. XIV; La. Const. art. I, § 13 ("At each stage of the

proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court

if he is indigent and charged with an offense punishable by imprisonment.").

-17-

As to the obstruction of justice case for which he was being re-sentenced, as acknowledged

in the original decision, the facts are that Mr. Gilcrease made phone calls and wrote letters from jail

to Ms Cliburn, asking her to drop the charges. There was no allegation that he threatened to harm

her in the calls or letters. Rather, he asked her to recant her statement to police. He told her he could

not live without her, and he would kill himself if she did not take his calls.26 Along with fourteen

misdemeanor counts of violating a protective order, second degree battery and false imprisonment,

John Gilcrease pleaded guilty to the obstruction of justice charge in this case, for which he was being

re-sentenced.

John Gilcrease’s conduct was the least severe means of violating the obstruction of justice

statute. For that reason, the district court had imposed concurrent sentences at the original

sentencing. There was no new evidence or intervening facts presented at re-sentencing to justify the

increase to consecutive sentences. Nothing in the district court’s remarks on remand provide a

sufficient basis for imposing the harsher, consecutive sentence. The district court did not provide a

single objective reason based on Mr. Gilcrease’s conduct after the original sentencing, or new

information received after the original sentencing, for changing that designation to consecutive

sentences. The presumption of judicial vindictiveness was not rebutted. John Gilcrease was entitled

to the obvious, Constitutional due process protections provided by the straight-forward application

of North Carolina v. Pearce, supra. His Petition for Writ of Certiorari should be granted and the

order for consecutive sentences removed.

26

State v. Gilcrease, p.4, 329 So. 3d 1173; 54,122 (La.App. 2 Cir. 11/17/21) (Pet.App.A)

-18-

CONCLUSION

In view of the facts and law set forth herein and the entire record of the case, the defendantPetitioner, John Gilcrease, prays that this Honorable Court grant this Petition for Writ of Certiorari

and find that the defendant’s due process were violated by the imposition of a consecutive sentence

on remand for re-sentencing, after concurrent sentences were originally imposed. The Louisiana

Second Circuit Court of Appeal’s decision to uphold the consecutive sentence imposed on remand

(Pet. App. B) is against settled U.S. Constitutional principles that the Louisiana Supreme Court

declined to address. (Pet. App. C) The lower courts did not follow this Court’s well-marked

precedent of North Carolina v. Pearce, supra. The Court should grant review, find that the Louisiana

Second Circuit erred in upholding district court’s retaliatory and vindictive imposition of a

consecutive sentence, and remand again with an order that the restriction for a consecutive sentence

should be removed.

Respectfully submitted,

Sherry Watters__

SHERRY WATTERS

LOUISIANA APPELLATE PROJECT

P.O. BOX 58769

NEW ORLEANS, LA. 70158-8769

(504)723-0284; fax (504)799-4211

sherrywatters@yahoo.com

Attorney for Petitioner, John Gilcrease

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