State v. OsborneState v. Osborne
TEODOSIO, Presiding Judge.
{1} This matter is before the Court following our decision to reopen Appellant James S. Osborne‘s appeal from his convictions in the Lorain County Court of Common Pleаs. For the reasons set forth below, we confirm our prior decision.
I.
{2} This Court previously set forth the underlying facts of this case as follows:
On December 5, 2013, the Lorain County Grand Jury indictеd Osborne on a litany of criminal offenses and attendant specifications related to the sexual abuse of several children. On December 19, 2013, the Lorain County Grand Jury issuеd a superseding indictment charging Osborne with sixteen counts of complicity to commit rape in violation of
R.C. 2923.03(A)(1) , felonies of the first degree with attendant specificatiоns alleging Osborne to be a sexually violent predator; forty-eight counts of complicity to commit kidnapping in violation ofR.C. 2923.03(A)(2) , felonies of the first degree with attached specifications alleging that the offenses were committed with a sexual motivation and that Osborne is a sexually violent offender; four counts of pandering obscenity involving a minor in violation ofR.C. 2907.322(A)(1) , felonies of the second degree; four counts of pandering sexually oriented matter involving a minor in violation ofR.C. 2907.322(A)(1) , felonies of the seсond degree; eight counts of illegal use of minor in nudity-oriented matter or performance in violation ofR.C. 2907.323 , feloniesof second degree; one count of tampering with reсords in violation of R.C. 2913.42(A)(2) , a felony of the third degree; one count of conspiracy in violation ofR.C. 2923.01(A)(1) , a felony of the third degree; one count of conspiracy in viоlation ofR.C. 2923.01(A)(2) , a felony of the third degree; one count of engaging in a pattern of corrupt activity in violation ofR.C. 2923.32(A)(1) , a felony of the second degree; and onе count of failure to register in violation ofR.C. 2950.05(F)(1) , a felony of the second degree.It is undisputed that prior to his plea hearing, Osborne executed a written plea form. At the hearing, the court reviewed the writtеn plea form with Osborne and asked if he understood he was pleading guilty to each of the charges in the amended indictment and—after the court read all of the chаrges to him—Osborne stated, “Yes, Your Honor.” The court thereafter accepted Osborne‘s plea of guilty to the amended indictment, which included four counts of comрlicity to rape, four counts of complicity to kidnapping, four counts of pandering sexually oriented matter involving a minor, two counts of illegal use of a minor in nudity-oriented matter or performance, one count of corrupt activity, and one count of failure to register. Osborne reserved the right to try the sexually violent predator specifications to the bench and the trial court ultimately determined that Osborne was a sexually violent predator and sentenced him pursuant to law.
State v. Osborne, 9th Dist. Lorain No. 17CA011208, 2020-Ohio-226, ¶ 2-3. This Court granted Mr. Osborne‘s motion to file a delayed appeal. See id. at ¶ 4. On appeal, he unsuccessfully argued that the trial court erred in failing to comply with
{3} Mr. Osborne then filed an application to reopen his appeal pursuant to
{4} Mr. Osborne now appeals and raises two assignments of errоr for this Court‘s review. Because both assignments of error must be overruled for the same reason, we have consolidated them to facilitate our review.
II.
ASSIGNMENT OF ERROR ONE
MR. OSBORNE‘S PLEA WAS OBTAINED IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ASSIGNMENT OF ERROR TWO
MR. OSBORNE‘S SENTENCE IS UNCONSTITUTIONAL AS CRUEL AND UNUSUAL PUNISHMENT AND INCONSISTENT WITH THE SENTENCING PRINCIPLES SET FORTH IN
{5} In his assignments of еrror, Mr. Osborne argues that the trial court erred in: (1) failing to advise him that he would not be eligible for probation or community control; and (2) sentencing him to four life sentences withоut parole, which constitutes cruel and unusual punishment and is inconsistent with the principles set forth in
{6} Following the release of the Supreme Court of Ohio‘s decision in State v. Murnahan, 63 Ohio St.3d 60 (1992), and in direct response to that decision,
The first stage involves a threshold showing for obtaining permission to file new appellate briefs. * * * The second stage involves filing appellate briefs and supporting materials with the assistance of new counsel, in order to establish that prejudicial errors were made in the trial court and that ineffective assistance of appellate counsel in the prior appellate proceedings prevented these errors from being presented effectively to the court of appeals.
1993 Staff Notes to
{7} Upon granting Mr. Osborne‘s application to reopen in this matter, this Court ordered him, in accordance with
{8}
{9} Because Mr. Osborne has not presented this Court with a claim of ineffective assistance of appellate counsel, we must confirm our prior judgment. See
{10} Accordingly, Mr. Osborne‘s assignments of error are both overruled.
III.
{11} Mr. Osborne‘s assignments of error are both overruled. Pursuant to
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
CALLAHAN, J.
SUTTON, J.
CONCUR.
APPEARANCES:
GIOVANNA V. BREMKE, Attorney at Law, for Appellant.
J.D. TOMLINSON, Prosecuting Attorney, and BRIAN P. MURPHY, Assistant Prosecuting Attorney, for Appellee.