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Kevin W. Osborn v. the State of Wyoming

December 17, 2012

KEVIN W. OSBORN, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Converse County The Honorable John C. Brooks, Judge

The opinion of the court was delivered by: Burke, Justice.

Before KITE, C.J., and GOLDEN,*fn1 HILL, VOIGT, and BURKE, JJ.

[¶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.*fn2 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'd 861 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.

[ΒΆ7] 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 ...


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