Osborn v. State

• Decision Date: 17 December 2012
• Docket Number: Nos. S–12–0042,S–12–0116.,s. S–12–0042
• Citation: 290 P.3d 1096
• Parties: Kevin W. OSBORN, Appellant (Defendant), v. The STATE Of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

290 P.3d 1096

Kevin W. OSBORN, Appellant (Defendant),

v.The STATE Of Wyoming, Appellee (Plaintiff).

Nos. S–12–0042, S–12–0116.

Supreme Court of Wyoming.

Dec. 17, 2012.

Representing Appellant: Pro se.

Representing Appellee: Gregory A. Phillips, Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Meri Geringer, Senior Assistant Attorney General.

Before KITE, C.J., and GOLDEN,^*HILL, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶ 1] Appellant's current appeal relates to his convictions and sentences for several serious crimes committed in 1982. In 2012, the district court granted a motion by Appellant to correct an illegal sentence, but Appellant claims on appeal that the district court violated his right to be present when the sentence was corrected.¹ He also challenges the district court's denial of his motion to withdraw his previous guilty pleas. We will affirm the district court's rulings.

ISSUES

[¶ 2] Appellant states these issues, slightly reworded:

1. Did the trial court violate Appellant's state and federal constitutional rights by sentencing him in absentia ?

2. Did the trial court err by modifying Appellant's sentence without allowing him to withdraw his plea?

FACTS

[¶ 3] In 1982, Appellant pled guilty to, and was convicted of, aiding and abetting first degree murder, attempted first degree murder, and aggravated robbery, for crimes he committed in Sweetwater County, Wyoming. He received two life sentences on the first two crimes, and 45–50 years on the third, all to be served consecutively. He also pled guilty to, and was convicted of, aggravated robbery, conspiracy to commit aggravated robbery, and felony murder, for crimes he committed in Uinta County, Wyoming. He was sentenced to 45–50 years for each of the first two crimes, to be served concurrently with each other, but consecutive to the sentences for the Sweetwater crimes. On the felony murder charge, Appellant was sentenced to death. The convictions and sentences were affirmed on appeal. Osborn v. State, 672 P.2d 777, 779–81 (Wyo.1983).

[¶ 4] In habeas corpus proceedings in federal court, the Uinta County convictions and sentences were set aside. Osborn v. Schillinger, 639 F.Supp. 610 (D.Wyo.1986), aff'd861 F.2d 612 (10th Cir.1988). The charges were brought again in state court. Appellant pled guilty in order to avoid the death penalty. He was sentenced to life for felony murder, 45–50 years for aggravated robbery, and 45–50 years for conspiracy to commit aggravated robbery. The new sentences were to be served concurrently with each other, and concurrently with the sentences previously entered for the Sweetwater County crimes.

[¶ 5] In subsequent habeas corpus proceedings, the federal court reversed the Sweetwater County convictions as well. See Osborn v. Shillinger, 803 F.Supp. 371, 372–73 (D.Wyo.1992). These charges were also brought again in state court, and the prosecution filed notice of its intention to seek the death penalty. Appellant initially pled not guilty, but on the third day of trial, pled guilty in order to avoid the death penalty. He was given two life sentences on the murder charges and 22–25 years on the aggravated robbery charge, all to be served consecutively to each other and consecutively to the sentences in the Uinta County crimes. On appeal, the new Sweetwater convictions and sentences were affirmed. Osborn v. State, 806 P.2d 259, 260–62 (Wyo.1991).

[¶ 6] In the spring of 2011, having served nearly thirty years in prison, Appellant filed a Motion to Correct an Illegal Sentence. He pointed out that, after he was originally sentenced in 1982, but before he was resentenced in 1989, the aggravated robbery statute was amended to reduce the maximum penalty. Compare 1982 Wyo. Sess. Laws ch. 75, § 3, at 533 (5–50 years for aggravated robbery) with 1983 Wyo. Sess. Laws ch. 171, § 1, at 552 (5–25 years for aggravated robbery). Appellant claimed that the amended statute applied retroactively, relying on Wyo. Stat. Ann. § 6–1–101(c), which provides that, “In a case pending on or after the effective date of this act, involving a crime committed prior to the effective date, if the penalty under this act for the crime is different from the penalty under prior law, the court shall impose the lesser sentence.” Appellant committed the crimes in 1982, prior to the 1983 effective date of the act. See 1983 Wyo. Sess. Laws ch. 171, § 8, at 584. On this basis, he argued that his 45–50 year sentence was illegal because it exceeded the new statutory maximum.

[¶ 7] The district court granted the motion and reduced his sentence on the Uinta County aggravated robbery charge to 22–25 years. That ruling is not at issue in this appeal. Nevertheless, Appellant complains that he was denied the right to be present at the hearing in which the district court considered the motion and reduced his sentence. He also claims that the district court erred because it modified his sentence without allowing him to withdraw the guilty plea.

STANDARD OF REVIEW

[¶ 8] In his first issue, Appellant contends that the district court violated his constitutional rights to be present at sentencing. Claims of a constitutional nature are reviewed de novo. Remmick v. State, 2012 WY 57, ¶ 15, 275 P.3d 467, 470 (Wyo.2012).

[¶ 9] In his second issue, Appellant claims that he should have been allowed to withdraw his previous guilty pleas. W.R.Cr.P. 32(d) states that, after sentencing, a guilty plea “may be set aside only to correct manifest injustice.” The district court has discretion in determining whether a defendant has demonstrated manifest injustice, and absent abuse of that discretion, we will not disturb the district court's ruling. State v. McDermott, 962 P.2d 136, 138 (Wyo.1998). However, Appellant's argument in this case rests to an extent on a claim that the State breached the plea agreement. “Whether a breach of a plea agreement has occurred is a question of law that we review de novo.” Duke v. State, 2009 WY 74, ¶ 9, 209 P.3d 563, 567 (Wyo.2009).

DISCUSSION

First Issue: Appellant's right to be present for resentencing

[¶ 10] Appellant contends that, when the district court granted his motion to correct the illegal sentence, he had the right to be present for resentencing. He claims that right under state law, citing Abeyta v. State, 2003 WY 136, ¶ 24, 78 P.3d 664, 670 (Wyo.2003) (Recognizing the right “to be present during every stage of the criminal proceeding that is critical to its outcome.”). He also claims that right under federal law, citing United States v. Behrens, 375 U.S. 162, 167, 84 S.Ct. 295, 298, 11 L.Ed.2d 224 (1963) (Harlan, J., concurring) (“[T]he requirements of criminal justice ... leave no doubt of [a defendant's] right to be present when a final determination of sentence is made.”).

[¶ 11] In deciding that Appellant did not have the right to be present, the district court quoted W.R.Cr.P. 43:

(a) Presence required.—The defendant shall be present at the initial appearance at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.

...

(c) Presence not required.—A defendant need not be present in the following situations:

...

(4) At a reduction of sentence under Rule 35.

To similar effect, Wyo. Stat. Ann. § 7–11–202 (LexisNexis 2011) provides that a “defendant's presence is not required at a reduction of sentence hearing.” The district court then provided the following explanation:

The Court finds Osborn's presence in Wyoming for a hearing at this stage of the proceedings is not critical. The Court notes that Osborn's Motion can hardly be meaningful, except as an academic or procedural exercise. Mr. Osborn faces three consecutive life sentences for crimes he committed nearly thirty years ago. Osborn's Rule 35 motion, though granted, will have no effect on the ultimate length of his sentence. For that reason, ... the Court finds it proper to correct the sentence without transporting Mr. Osborn from Florida to Wyoming for a hearing. The Court finds that such a hearing is unnecessary. The Court concludes Mr. Osborn's presence at a hearing in Wyoming is not required under W.R.Cr.P. 43(c)(4) for the purposes of this Motion.

(Italics in original; internal citation omitted.)

[¶ 12] Appellant concedes that, under W.R.Cr.P. 43(c)(4), the rule relied upon by the district court, a defendant need not be present for “a reduction of sentence under Rule 35.” He points out, however, that W.R.Cr.P. 35 provides for two distinct types of motions, one for correction of a sentence under Rule 35(a), and another for reduction of a sentence under Rule 35(b). Appellant's motion was not for a reduction of sentence under Rule 35(b), but for the correction of an illegal sentence under Rule 35(a). He insists that the exception set forth in W.R.Cr.P. 43(c)(4) does not apply to his motion to correct a sentence, and accordingly, that he was entitled to be present when the district court corrected his sentence. Appellant supports his position by quoting the federal case of United States v. Moree, 928 F.2d 654, 656 (5th Cir.1991):

We therefore hold that a Rule 35(a) proceeding to “correct” a sentence on remand is not a “reduction in sentence” under Rule 43(c)(4) when the court of appeals has vacated the defendant's original sentence. The defendant's rights to be present and to allocute under Rules 32(a)(1) and 43(a) thus obtain.

[¶ 13] The State asserts that Appellant interprets this decision too broadly, pointing out that Moree cites and relies upon United States v. Jackson, 923 F.2d 1494, 1497 (11th Cir.1991), which held that “where the entire sentencing package has not been set aside, a correction of an illegal sentence does not constitute a resentencing requiring the presence of the defendant, so long as the modification does not make the sentence...