FROM THE ASHLEY C O U NT Y C IRC U IT C O U R T [NO.
02CR-07-177] HONORABLE SAM POPE, JUDGE
Kenneth Ray Osburn, pro se appellant.
Rutledge, Att'y Gen., by: Christian Harris, Ass't
Att'y Gen., for appellee.
LARRYD. VAUGHT, JUDGE.
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.
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.
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. 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.
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 (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
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.
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
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
(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 (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)).
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."
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.
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 ...