Osburn v. State

• Decision Date: 07 February 2018
• Docket Number: No. CR–16–712,CR–16–712
• Parties: Kenneth Ray OSBURN, Appellant v. STATE of Arkansas, Appellee
• Court: Arkansas Court of Appeals

538 S.W.3d 258

Kenneth Ray OSBURN, Appellant

v.STATE of Arkansas, Appellee

No. CR–16–712

Court of Appeals of Arkansas, DIVISION I.

Opinion Delivered February 7, 2018

Kenneth Ray Osburn, pro se appellant.

Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

LARRY D. VAUGHT, Judge

In 2008, an Ashley County jury convicted Kenneth Ray Osburn of capital murder and kidnapping of Casey Crowder. He was sentenced by the circuit court to life imprisonment without parole and life, respectively. His convictions were reversed and remanded for a new trial on direct appeal by the Arkansas Supreme Court. Osburn v. State , 2009 Ark. 390, 326 S.W.3d 771. On June 18, 2014, Osburn pled guilty to kidnapping and the reduced charge of second-degree murder in exchange for ten-and thirty-year sentences, respectively, for a total sentence of forty years' imprisonment.

On September 16, 2014, Osburn filed a petition for postconviction relief in the circuit court pursuant to Arkansas Rule of Criminal Procedure 37. After an evidentiary hearing, the circuit court entered an order on June 15, 2016, denying Osburn's petition. Osburn filed a timely notice of appeal. We affirm.

Osburn argues on appeal that his counsel, Jim Wyatt, was ineffective; specifically, Osburn contends that Wyatt failed to properly advise him in connection with his guilty plea, failed to share with him or challenge the validity of inmate statements; and failed to move to dismiss based on a speedy-trial violation.¹ We do not reverse the denial of postconviction relief unless the circuit court's findings are clearly erroneous. Johnson v. State , 2018 Ark. 6, at 2, 534 S.W.3d 143, 146. A finding is clearly erroneous when the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that the circuit court made a mistake. Id.

"The benchmark for judging a claim of ineffective assistance of counsel must be ‘whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ Strickland [v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]." Mancia v. State , 2015 Ark. 115, at 4, 459 S.W.3d 259, 264 (citing Henington v. State , 2012 Ark. 181, at 3–4, 403 S.W.3d 55, 58 ). Pursuant to Strickland , we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective-assistance-of-counsel must show that his counsel's performance fell below an objective standard of reasonableness. Id. , 459 S.W.3d at 264. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. , 459 S.W.3d at 264.

Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. at 4–5, 459 S.W.3d at 264. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Id. at 5, 459 S.W.3d at 264. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. , 459 S.W.3d at 264. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. , 459 S.W.3d at 264. Additionally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Id. , 459 S.W.3d at 264.

Osburn's first ineffective-assistance-of-counsel argument is that his guilty plea was not intelligently and voluntarily entered because he did not receive the sentence for which he bargained. He argues that he was told by Wyatt that he would have to serve only seven years of the thirty-year sentence for the second-degree-murder conviction. He also claims that the circuit court should not have accepted his plea because he never said that he pled guilty. Rather, he argues that he only stated that he accepted the plea "because of my family."

The Strickland standard applies to allegations of ineffective assistance of counsel pertaining to possible prejudice in guilty-plea and sentencing proceedings. Mancia , 2015 Ark. 115, at 5, 459 S.W.3d at 264. To establish prejudice and prove that he or she was deprived of a fair trial due to ineffective assistance of counsel, a petitioner who has pled guilty must demonstrate a reasonable probability that, but for counsel's errors, the petitioner would not have so pled and would have insisted on going to trial. Jones v. State , 2015 Ark. 119, at 5, 2015 WL 3484687 (citing Buchheit v. State , 339 Ark. 481, 483, 6 S.W.3d 109, 111 (1999) (per curiam) (citing Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ). Further, "on appeal from the denial of a Rule 37 petition following pleas of guilty there are only two issues for review—one, whether the plea of guilty was intelligently and voluntarily entered, [and] two, were the pleas made on the advice of competent counsel." Mancia , 2015 Ark. 115, at 11, 459 S.W.3d at 267 (citing Branham v. State , 292 Ark. 355, 356, 730 S.W.2d 226, 227 (1987) ).

In its order denying Osburn's Rule 37 petition, the circuit court stated that it had reviewed the guilty-plea-hearing transcript, along with Osburn's plea statement and sentencing recommendation. At the guilty-plea hearing, Osburn was advised by the court that he was pleading guilty to kidnapping and second-degree murder in exchange for an aggregate sentence of forty years' imprisonment. Osburn said that he understood the plea and that the total maximum statutory penalty for these crimes was life imprisonment. He testified that he further understood the rights he was giving up by pleading guilty. He stated that he had seen, signed, and understood his plea statement that confirmed the State's sentencing recommendation of forty years' imprisonment. Osburn testified that he reviewed the plea statement with his attorney. He confirmed there were no forces, threats, or promises used to get him to enter his guilty plea. When asked what his plea was, Osburn stated that he was "pleading guilty to it."

Osburn's plea statement also clearly sets forth that he could receive a maximum sentence of life imprisonment. In his plea statement, Osburn answered yes when asked if he understood the minimum and maximum possible sentences for his offenses; that he was waiving his right to a trial by jury and to an appeal; that his plea had not been induced by any force, threat, or promise, apart from the plea agreement; that the court was not required to carry out any understanding between Osburn, his attorney, and the prosecutor and that power of sentencing was with the court only; that no one had made him any promises regarding parole eligibility, meritorious good time earned, early release, or anything of that nature in order to get him to enter the plea; and that if his case went to trial, the State could meet its burden of proving his guilt beyond a reasonable doubt. The sentence recommendation attached to the plea statement reflects that the State recommended forty years' imprisonment.

Based on the transcript of the guilty-plea hearing, the plea statement, and the sentence recommendation, we hold that the circuit court did not clearly err in finding that Osburn's guilty plea was intelligently and voluntarily entered. On several occasions he stated that he was pleading guilty to the reduced charge of second-degree murder and to kidnapping. He stated that he understood the sentence recommendation of forty years. He confirmed that he signed the plea statement and reviewed it with his attorney before signing it. He stated that he was not forced or threatened to enter into the plea agreement. This evidence demonstrates that Osburn agreed to the exact sentence that he received. There was no evidence at the guilty-plea hearing or in the plea statement that Osburn would have to serve only seven years of the thirty-year sentence for the second-degree-murder conviction. Osburn testified at the Rule 37 hearing that he did not have anything in writing to support his claim that Wyatt said he would have to serve only seven years for the second-degree- murder conviction. Wyatt was not at the Rule 37 hearing, and Osburn admitted that he did not subpoena Wyatt. And while Osburn testified at the Rule 37 hearing that he did not plead guilty but accepted the guilty plea "because of my family," this is contrary to his testimony at the guilty-plea hearing, wherein he, on more than one occasion, pled guilty to the charges.

Moreover, we must keep in mind the alternative that Osburn was facing had he not pled guilty—retrial for the capital murder and kidnapping of Casey Crowder. Capital murder is punishable by death or life imprisonment without parole. Ark. Code Ann. § 5–10–101(c)(1)(A)(i), (ii) (Supp. 2017). Osburn's plea that provided the possibility of eventual release is further evidence that he made an intelligent and voluntary choice given this alternative.

For these reasons, we hold that the circuit court's finding that Osburn's guilty plea was intelligently and voluntarily given after being fully advised of his rights was not clearly against the preponderance of the evidence. We further hold that Osburn failed to establish prejudice and prove that he was deprived of a fair trial due to ineffective assistance of counsel in connection with his guilty plea. We affirm on this point.

In his Rule 37 petition, Osburn also alleged that Wyatt failed to challenge the validity of the statements of Steve Moore and Danny Cromeans that Osburn claims Wyatt used to threaten him with the death penalty and coerce him to plead guilty. Osburn also alleged that his counsel refused to allow Osburn to read the statements.

The only evidence presented at...