Osborn v. State, 90-178

• Citation: 806 P.2d 259
• Decision Date: 08 February 1991
• Docket Number: No. 90-178,90-178
• Parties: Kevin Winston OSBORN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 259

806 P.2d 259

Kevin Winston OSBORN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 90-178.

Supreme Court of Wyoming.

Feb. 8, 1991.

Fred R. Dollison, Sheridan, for appellant.

Joseph B. Meyer, Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., and Richard E. Dixon, Asst. Atty. Gen., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

URBIGKIT, Chief Justice.

In 1982, Kevin Winston Osborn and his companions became the architects of a nightmare. The nightmare began in Uinta County and cost an innocent life. That nightmare spread into Sweetwater County, costing a woman her life and subjecting her son to severe injuries and a lifetime of horrible memories.

Osborn pled guilty to the Sweetwater County charges and to the Uinta County charge. He was given two life sentences for the Sweetwater County crimes and sentenced to die for the Uinta County crime. The Uinta County sentence was reversed and he repled guilty in return for a life sentence. He now challenges the Sweetwater County sentences by arguing that his plea of guilty entered in the middle of his trial had been coerced.

We affirm in finding that the plea was both knowingly made and voluntary and that the sentence was appropriate and within statutory and constitutional perspective under the Wyoming and United States Constitutions.

I. HISTORY OF THESE PROCEEDINGS AND GENERAL FACTUAL BACKGROUND

This saga of crime and criminal procedures has involved three separate pleas of guilty to first degree murder and has occupied the time of both state and federal courts for eight years, once including a death penalty. A more explicit and detailed discussion of the events, intervening judgments and criminal proceedings can be found in State v. Osborn, No. 31-91 (Wyo. April 5, 1989) (Judgment and Sentence); Osborn v. Shillinger, No. C89-0073J (D.Wyo. October 4, 1989); Osborn v. Shillinger, 861 F.2d 612 (10th Cir.1988), aff'd 639 F.Supp. 610 (D.Wyo.1986); Osborn v. Shillinger, 705 P.2d 1246 (Wyo.1985); and Osborn v. State, 672 P.2d 777 (Wyo.1983), cert. denied 465 U.S. 1051, 104 S.Ct. 1331, 79 L.Ed.2d 726 (1984). ¹

Osborn, in 1982, became an escapee from a fifteen year sentence in an Alabama state penitentiary. Osborn ultimately traveled west and was joined by Willard Teel, Terry Green, and an eighteen-year old lady, Ellen Hopkins. The party turned east and arrived in Evanston, Wyoming on May 14, 1982, where they robbed and fatally beat Jimmy Ray O'Briant in his motel room by hitting him in the head with a cowboy boot. Still traveling east the next day, the party of four encountered Dale Moore with a stopped vehicle. With extraordinary cruelty and brutality, the party raped and murdered Moore's mother, Audrey Ditmars, and attempted to kill Moore by multiple stabbings. Moore was left for dead on the prairie. Moore survived to reach help, summon law officers and testify at each stage of the criminal proceedings. The four participants were arrested about 175 miles east of the scene of the second crime by alerted law enforcement forces.

Charges were filed for the murder of O'Briant in Evanston, Uinta County, Wyoming Hopkins pled guilty to aiding and abetting the aggravated robbery of Moore in Sweetwater County and conspiracy to commit aggravated robbery and aggravated robbery of O'Briant in Uinta County. Hopkins received a concurrent sentence of four to ten years and five to ten years with one year suspended. Teel arranged a plea bargain, but was strangled to death by his co-defendant, Green, in their jail cell in Sweetwater County before the plea could be entered. Green pled guilty to the Sweetwater County charges of first degree murder of Ditmars by strangulation, attempted first degree murder of Moore by stabbing, first degree murder of co-defendant Teel by strangulation, aggravated robbery of Moore, first degree sexual assault of Ditmars, and attempted second degree murder of O'Briant, a Uinta County charge. For these offenses, Green received four consecutive life sentences for the two murders and the two attempted murders and two consecutive sentences of 45 to 50 years for the aggravated robbery and rape charges. After co-defendants Green and Hopkins were sentenced, O'Briant, the victim in Uinta County who had been beaten on the head with his own boot, died.

and for the Ditmars homicide and Moore attempted homicide in Sweetwater County, after which the two criminal complaints were consolidated for arraignment in Sweetwater County.

On August 23, 1982, Osborn was charged in Sweetwater County with aiding and abetting the first degree murder of Ditmars and the attempted first degree murder and aggravated robbery of Moore. Uinta County charged Osborn with conspiracy to commit aggravated robbery, aggravated robbery and felony murder of O'Briant. Osborn waived his rights to preliminary hearings in both counties and waived his right to venue in Uinta County on the Uinta County charges. Osborn, 672 P.2d 777. In the first criminal prosecution, Osborn initially pled guilty to the Sweetwater County charges and to the Uinta County offense. After a two day sentencing hearing, Osborn was sentenced to death for the first degree felony murder of O'Briant. ²

An appeal was taken to this court in Osborn, 672 P.2d 777, where the death sentence was affirmed and error in denial of the right to withdraw the guilty plea rejected. A second attempt in 1985 through habeas corpus to reverse the death penalty also failed on denial of a motion for a stay of execution. Osborn, 705 P.2d 1246. No state court appeal was taken from the plea and life sentence entered for the Sweetwater County murder of Ditmars.

Upon subsequent proceedings, the Uinta County death penalty was reversed by the United States District Court for the District of Wyoming on a federal habeas corpus proceeding for error in denial of leave to withdraw guilty plea. Osborn, 639 F.Supp. 610. This decision was affirmed by the Tenth Circuit Court of Appeals in the 1988 decision of Osborn, 861 F.2d 612. The O'Briant murder and robbery offenses after federal court reversal were then rescheduled for state court trial before Judge William A. Taylor in Converse County. In a plea bargain to escape exposure to the death penalty, Osborn again pled guilty to murder and robbery. Judgment and sentence was entered on April 5, 1989, for which Osborn received sentences of 45 to 50 years--conspiracy to commit aggravated robbery; 45 to 50 years--aggravated robbery; and a life sentence for first degree murder with the sentences to be concurrent and concurrent to the sentences previously entered for the Sweetwater County offenses involving the murder of Ditmars and attempted murder of Moore.

Following his first guilty plea for the O'Briant homicide, Osborn had consecutive sentences of two life terms and a consecutive sentence of 45 to 50 years for the Sweetwater County charges, plus the death sentence and two concurrent sentences of 45 to 50 years for the Uinta County charges which were consecutive to the Osborn, with reversal of the Uinta County death penalty and the death penalty repleaded to a life sentence, then became dissatisfied with his guilty plea to the Sweetwater County charges from which no appeal had ever been taken in the state court system. Through further federal court habeas corpus proceedings, Osborn brought the Sweetwater County proceedings back to retrial in June 1990 and again pled guilty. After all of this, Osborn has a life and concurrent 45 to 50 year Uinta County sentence and two consecutive life Sweetwater County sentences to be served consecutive to the Uinta County term--so, give or take some numbered terms, he now has three consecutive life sentences which are essentially the same total as the sentences, except for the death penalty, that he had before he was granted the right to replead on all charges and before he again pled guilty to all offenses.

Sweetwater County sentences. The Sweetwater County sentences were 45 to 50 years for aggravated robbery, life for murder in the first degree, and life for the attempted first degree murder, each to be served consecutively. After resentencing in 1989 on the Uinta County offense following the guilty plea, the posture of Osborn was singularly improved at least in numbers since he then had essentially only two life sentences.

Osborn now worries that by obtaining a retrial on the Ditmars and Moore offenses with death penalty exposure and resulting plea, he has acquired an increase from two life sentences to three life sentences which demonstrates vindictive prosecution or vindictive sentences. We do not accept that conclusion. In Wyoming, a life sentence, subject only to commutation by the governor, is a life sentence. Osborn can expect to spend the rest of his life in Wyoming penal confinement for the life sentence which he received for the Uinta County murder of O'Briant entered in Converse County on April 5, 1989, from which no appeal has been taken. Weldon v. State, 800 P.2d 513 (Wyo.1990). ³

The present record presents references and details of the plea entered into in 1982 for the Uinta County O'Briant murder and the complete details of the Sweetwater County proceedings since first information was filed June 22, 1982. Within that record for this appeal, we have an acknowledged statement of guilt signed August 23, 1982, sworn testimony of guilt provided in open court August 23, 1982, and then after three days of trial in June 1990, Osborn again pled guilty to aiding and abetting murder and an actual attempted murder and robbery.

Those facts and legal proceedings bring the sentence of June 1990 back to us for appellate review. One of the most skillful criminal attorneys in Wyoming had been appointed to represent Osborn in the Converse County trial and one of the most thorough and competent appellate lawyers now presents this appeal. We are convinced that excellent assistance has been furnished and due...