Com. v. Osborne, K. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KAMERON MICHAEL JAMES :
OSBORNE :
: No. 844 WDA 2020
Appellant
Appeal from the Judgment of Sentence Entered July 31, 2020
In the Court of Common Pleas of Warren County Criminal Division at
No(s): CP-62-CR-0000105-2020
BEFORE: McLAUGHLIN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: September 8, 2021
Kameron Michael James Osborne appeals from the judgment of
sentence imposed after he pleaded guilty to Rape by Forcible Compulsion and
Endangering the Welfare of a Child (“EWOC”).1 Osborne claims that the court
erred by denying his petitions to withdraw his guilty plea and challenges the
discretionary aspects of his sentence. We affirm.
At the plea hearing, on June 25, 2020, Osborne agreed to the factual
basis of the charges and said he understood the charges, the possible
sentences, and that he would be required to register as a sex offender:
THE COURT: All right. I am going to amend that charge, Mr.
Osborne. So, you are charged, again, count one, with rape
by forcible compulsion, first degree felony, under 18
Pa.C.S.A. [§] 3127(a)(1).
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1 18 Pa.C.S.A. §§ 3121(a)(1) and 4304(a)(1), respectively.
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That offense is that you did engage in sexual intercourse by
forcible compulsion. And, again, specifically, it is alleged
that on or about February 17th, 2020, you did push the
victim, B.O.,[2] onto the bed and did hold the victim down
against the victim’s will and force sexual intercourse with
the victim. Do you understand this charge, sir?
[OSBORNE]: Yes.
THE COURT: And, do you understand the allegations against
you?
[OSBORNE]: Yes.
THE COURT: This is a first-degree felony. So, the maximum
penalties the Court can impose are 20 years[’] incarceration
and $25,000 fine. Do you understand that?
[OSBORNE]: Yes.
THE COURT: And, do you understand that any sentences the
Court imposes at count one and count five, could be ordered
to run consecutive to one another?
[OSBORNE]: Yes.
THE COURT: And do you understand that by pleading guilty
to this count, you will be classified as a Tier III sexual
offender, and your registration period as a sexual offender
will be for the rest of your lifetime. Do you understand that
sir?
[OSBORNE]: Yes.
THE COURT: And as to count one, rape by forcible
compulsion, do you admit to that charge?
[OSBORNE]: Yes.
THE COURT: And, how do you plead?
[OSBORNE]: Guilty.
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2 B.O. and Osborne were married but separated at the time of the crime.
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THE COURT: You are charged at count five with endangering
the welfare of a child, a first[-]degree misdemeanor, filed
under 18 Pa.C.S.A. [§] 4304(a)(1).
That offense is that you did being a parent, guardian, or
other person supervising the welfare of a child under 18
years of age, knowingly endangered the welfare of the child
by violating the duty of care, protection, or support.
And, specifically, it is alleged that on or about the same
date, you did rape the child’s mother in front of the child.
Do you understand the charge of endangering the welfare
of a child?
[OSBORNE]: Yes.
THE COURT: And do you understand that allegation against
you?
[OSBORNE]: Yes.
THE COURT: As a first-degree misdemeanor, the maximum
penalties the Court can impose are five years’ incarceration
and $10,000 fine. Do you understand those maximum
penalties?
[OSBORNE]: Yes.
THE COURT: And as to count five, do you admit to that
charge as it is written?
[OSBORNE]: Yes
THE COURT: And how do you plead?
[OSBORNE]: Guilty.
THE COURT: I accept that plea, if you will please enter it.
N.T., 6/25/2020, at 12-15.
Osborne also agreed that he was pleading guilty of his own free will and
that he understood the rights he would forfeit by pleading guilty. Id. at 2-8,
10. He stated no one had made any promises to him regarding the sentence
and that no one threatened him or used force or coercion to get him to plead
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guilty. Id. at 10. He also agreed that he had sufficient time to discuss with
counsel the facts of his case and the effects of the plea, including the
maximum penalties. Id. at 11.
Before sentencing, on July 16, 2020, Osborne moved to withdraw his
guilty plea. At a hearing on the motion, Osborne stated he wanted to withdraw
his guilty plea because he did not “want to have to register under a sex
offender for the next [sic] life.” N.T., 7/28/2020, at 6-8. Osborne
acknowledged that prior to pleading guilty, the court advised him he would
have to register as a sex offender for his lifetime. N.T., 7/28/2020, at 8-9.
The court denied the motion, noting Osborne did not claim his innocence or
that he wanted to test the Commonwealth’s case. Id. at 14. It concluded that
seeking to withdraw the plea because he did not want to register as a sex
offender, when he was made aware of the requirement at the plea, “with
nothing to support his innocence, nothing to support any new evidence, just
doesn’t meet the burden for withdrawal.” Id. at 15.
The court later sentenced Osborne, on July 31, 2020, and imposed
maximum sentences on both convictions. For EWOC, it sentenced him to 30
to 60 months’ incarceration, and for Rape by Forcible Compulsion, it imposed
a consecutive sentence of ten to 20 years’ incarceration.3 The court also
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3 At sentencing, Osborne disputed the offense gravity score used to determine
the sentencing guidelines for the rape by forcible compulsion conviction. N.T.,
7/31/2020, at 8. For purposes of the sentencing, the court used the lower
range of 48 to 66 months. Id. at 8-9. The record does not contain information
(Footnote Continued Next Page)
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imposed a mandatory three-year period of probation applicable to certain
sexual offenses, pursuant to 42 Pa.C.S.A. § 9718.5(a).
At sentencing, the trial court explained its reasons for the sentence for
the rape conviction:
This sentence is outside the Sentencing Guidelines and is
the maximum punishment possible for the following
reasons.
First and importantly, and unconscionably, you raped the
victim in the presence of her child. You managed to take the
most violent thing you can do to a woman, you made it
worse by doing it in front of her child. That pain and
suffering that she had to be going through in addition to her
own pain and suffering, knowing a child is observing that
assault is outrageous. Second, you threatened to physically
harm her and your child during this brutal assault. And,
third, while she was fighting, screaming, doing everything
in her power to end your assault, you covered her mouth,
you used increased force to perpetrate your rape until you
finished.
Id. at 17-18.
It explained its sentence for the EWOC conviction as follows:
This sentence is outside the guidelines and is the maximum
sentence possible for the following reasons.
First, your conduct is far beyond the conduct that [the]
endangering the welfare of a child . . . statute is intended to
prescribe, to punish you within the guidelines would be a
miscarriage of justice.
You had a child stand by and watch his mother get sexually
assaulted while you threatened that child’s life.
____________________________________________
regarding the sentencing range for the endangering the welfare of a child
conviction. Regardless, there is no dispute that the sentencing it outside the
Sentencing Guidelines.
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Second, the child is your own biological child, not some
unrelated child that you were providing care for. This tells
me you are a danger to any child you come across, let alone
your own.
Id. at 16. The court also included the above reasons in the sentencing order.
Osborne’s counsel filed a motion challenging the validity of the plea, a
motion for reconsideration of sentence, and a motion to withdraw appearance.
In the motion to reconsider the sentence, Osborne argued the court abused
its discretion by imposing “such an extensive period of incarceration, and
specifically by going outside the [S]entencing [G]uidelines.” Motion for
Reconsideration, filed Aug. 10, 2020, at ¶ 2. At a hearing, Osborne noted his
lack of a prior record, questioned the court’s statement that Osborne had
threatened the child, and stated he believed the court weighed certain
elements more than others. N.T.,9/4/2020, at 4.
In the motion challenging the validity of the plea, Osborne claimed he
was pressured to enter the plea against his will, and, in pro se correspondence,
stated counsel was ineffective based on a representation Osborne received
from counsel. The trial court held a hearing, where it questioned counsel about
his correspondence with Osborne. Counsel stated one communication did
include “wrong” language regarding the possible sentence, but that later
discussions clarified that there were no promises regarding the sentence:
THE COURT: In his pro se motion on appeal, he seemed to
indicate there is written correspondence where there was
some type of guaranteed minimum sentence. I think, three
to six years, something like that. I am assuming that’s not
going to pan out to be the situation, that you reviewed the
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guidelines with him and he indicated on the record to file,
there was no promises regarding sentence?
[Osborne Counsel]: Correct, your Honor. . . . There, I have
had multiple correspondence with Mr. Osborne. And, before
that particular plea, we spoke at length in person. And, I
confirmed with Mr. Osborne the maximum sentence allowed
by law and the sentencing guideline. And, that I hoped for
a sentence, you know.
I did, the correspondence he is referring to is one I had sent
previously. And that was, I, I did use the wrong language.
But, I, when I spoke to him after that, I confirmed with him
that, that there are no promises.
N.T., 9/4/2020, at 6-7. Counsel clarified that in a June 22, 2020 letter to
Osborne, counsel explained the guidelines and predicted a minimum standard
range from counsel’s calculations. Id. at 8. He then “unfortunately[] used the
language, if you take the deal, your minimum will be anywhere between four
and six years.” Id.
The trial court denied the motion challenging the validity of the plea,
stating the record belied Osborne’s claim that he was misled about the
sentence and finding no manifest injustice. The court also denied the motion
to reconsider the sentence. It granted counsel’s motion to withdraw and
appointed new counsel. Osborne filed a timely notice of appeal.
Osborne raises the following issues:
1. Did the trial court abuse its discretion in denying
[Osborne’s] motion to withdraw his guilty plea, made after
entry of his plea but before sentencing, as he felt pressured
into taking the plea and believes he did not do so with full
knowledge of the potential consequences?
2. Did the trial court abuse its discretion in imposing the
maximum possible sentence upon [Osborne], well above
even the aggravated range of the sentencing guidelines,
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particularly as he has no prior record, and the facts of the
case do not warrant the imposition of that sentence.
Osborne’s Br. at 8.
Osborne argues in his first issue that the court should have granted his
motion to withdraw as Osborne felt pressured into entering his plea and lacked
full knowledge of the consequences. He claims that he had concerns about the
lifetime sex offender registration requirement and “felt differently about his
chances from when he entered his plea if he took the case to trial.” Id. at 11.
He further argues that his trial counsel’s communications indicated that he
“will” receive a sentence in the standard range. He argues that, although
counsel stated he corrected the statement, the resulting confusion “indicates
that [Osborne] did not enter a knowing and intelligent plea with knowledge of
the consequences at the time.” Id. at 10-11. He states that the
Commonwealth will not be prejudiced if he is permitted to withdraw the plea,
as the witnesses remain available to testify and there are no questions about
spoilation of evidence.
Osborne challenges two separate rulings – the order denying his pre-
sentence motion to withdraw his guilty plea and the order denying his post-
sentence motion to withdraw.4 We will address each separately.
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4 In his Statement of Questions Involved, Osborne mentions only the pre-
sentence motion to withdraw. However, the argument section of his brief
discusses both the basis for the pre-sentence motion—the lifetime registration
requirement—and the basis of the post-sentence motion—counsel’s remarks
on sentencing. This is a violation of Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”). We will not find waiver in this instance because our
appellate review is not materially hampered.
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“A trial court’s decision regarding whether to permit a guilty plea to be
withdrawn should not be upset absent an abuse of discretion.”
Commonwealth v. Elia, 83 A.3d 254, 261 (Pa.Super. 2013) (quoting
Commonwealth v. Pardo, 35 A.3d 1222, 1227 (Pa.Super. 2011)) (citing
standard of review for pre-sentence motions); see also Commonwealth v.
Kehr, 180 A.3d 754, 757 (Pa.Super. 2018) (citation omitted) (citing standard
of review for post-sentence motions).
“[A]t any time before the imposition of sentence, the court may, in its
discretion, permit, upon motion of the defendant . . . the withdrawal of a plea
of guilty . . . and the substitution of a plea of not guilty.” Pa.R.Crim.P. 591(A).
However, there is no absolute right to withdraw a guilty plea.
Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291 (Pa. 2015). Trial
courts have discretion in determining whether to grant a request to withdraw
a plea. Id. at 1291-92. “[S]uch discretion is to be administered liberally in
favor of the accused; and any demonstration by a defendant of a fair-and-just
reason will suffice to support a grant, unless withdrawal would work
substantial prejudice to the Commonwealth.” Id. 1292. For example, it is not
an abuse of discretion for the trial court to refuse a presentence motion to
withdraw a guilty plea based on an implausible bare claim of innocence. Id.
at 1292-93.5
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5 See also Commonwealth v. Norton, 201 A.3d 112, 121 (Pa. 2019)
(finding no abuse of discretion in denying request to withdraw nolo contendere
(Footnote Continued Next Page)
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Here, Osborne sought to withdraw his guilty plea before sentencing
because he did not want to have to register for life as a sex offender. He did
not claim he was innocent, much less put forward a plausible claim of
innocence or identify a colorable claim of a flaw in the Commonwealth’s case.
Under these circumstances, we cannot say that the trial court abused its
discretion in rejecting the request. Rather, it was well within the court’s
discretion to find that Osborne’s dislike of the lifetime registration
requirement—a requirement he stated he knew at the time of sentencing—did
not constitute a fair and just reason to withdraw the plea.
“[P]ost-sentence motions for withdrawal are subject to higher scrutiny
since courts strive to discourage the entry of guilty pleas as sentencing-testing
devices.” Commonwealth v. Kelly, 5 A.3d 370, 377 (Pa.Super. 2010). A
defendant who files a post-sentence motion to withdraw “must demonstrate
that manifest injustice would result if the court were to deny [the motion].”
Id. (citation omitted). “A plea rises to the level of manifest injustice when it
was entered into involuntarily, unknowingly, or unintelligently.”
Commonwealth v. Pollard, 832 A.2d 517, 522 (Pa.Super. 2003) (citation
omitted).
The denial of Osborne’s post-sentence motion to withdraw was not an
abuse of discretion, either. Osborne has failed to show that his guilty plea was
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plea based on bare claim of innocence, statement that defendant could not
live with himself for taking the plea, and desire to test the Commonwealth’s
evidence at trial).
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not knowing, intelligent, and voluntary. Counsel acknowledged that one of his
letters included the “wrong” wording, but stated he clarified with Osborne prior
to the plea hearing that there were no promises regarding the sentence.
Further, at the plea hearing, Osborne stated he knew the maximum sentences
that could be imposed for the convictions and that no promises had been
made.
Osborne argues in his second issue that the trial court abused its
discretion in exceeding the guidelines and imposing maximum sentences. He
argues that although it is “certainly outside the norm that the child witnessed
his mother’s sexual assault, it cannot reasonably be said that the purpose of
the sexual assault was to harm the child.” Osborne’s Br. at 13. He further
stated that his use of force was an element of the crime, not an aggravating
factor for sentencing purposes, and there was no allegation that he caused
harm to the victim or used force “beyond the scope of other individuals who
have committed the crime.” Id. at 14. Osborne notes that the victim
requested leniency and requested that Osborne have contact with his children.
Id. at 15. He also points out he was 22 years old at the time of the crime,
with no prior record, was cooperative with law enforcement, admitted to his
actions, and believes an underlying mental health issue impacted his actions.
In this issue, Osborne challenges the discretion aspects of his sentence.
"The right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal."
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa.Super. 2014) (en
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banc). To invoke this Court’s jurisdiction over such a claim, an appellant must
satisfy a four-part test. We must determine whether the appellant: (1)
preserved the issue by raising it either at the time of sentencing or in a post-
sentence motion; (2) filed a timely notice of appeal; (3) set forth a concise
statement of reasons relied upon for the allowance of appeal pursuant to
Pa.R.A.P. 2119(f); and (4) raised a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa.Super. 2013).
“If an appellant fails to comply with Pa.R.A.P. 2119(f) and the
Commonwealth does not object, the reviewing Court may overlook the
omission if the presence or absence of a substantial question can easily be
determined from the appellant’s brief.” Commonwealth v. Anderson, 830
A.2d 1013, 1017 (Pa.Super. 2003) (citation omitted).
Osborne raises two challenges to his sentence—the court erred in
sentencing him to an unreasonable sentence that was outside of the
Sentencing Guidelines and the court improperly relied on force, an element of
Rape by Forcible Compulsion, as an aggravating factor.
Osborne preserved his claim that the outside-the-guidelines sentences
were unreasonable by raising it in a post-sentence motion and filing a timely
appeal. However, Osborne did not challenge the use of an element of the crime
as an aggravating factor before the trial court and therefore waived the claim.
See Commonwealth v. Reeves, 778 A.2d 691, 692–693 (Pa.Super. 2001)
(failing to raise the specific claim raised on appeal in post-sentence motion,
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deprived the trial court of the opportunity to consider claim and thus the claim
was waived on appeal).
Osborne did not include a Rule 2119(f) statement in his brief. However,
this does not prevent our review, as the Commonwealth did not object to its
absence, and we can determine whether a substantial question exists based
on the brief. See Anderson, 830 A.2d at 1017. Osborne’s remaining issue—
whether the court erred in imposing a sentence above the guidelines without
sufficient justification—raises a substantial question. Commonwealth v.
Antidormi, 84 A.3d 736, 759 (Pa.Super. 2014) (concluding claim that court-
imposed sentence outside the standard range without stating adequate
reasons presents a substantial question); Commonwealth v. Griffin, 804
A.2d 1, 7 (Pa.Super. 2002) (finding a claim the court imposed an unreasonable
sentence outside the guidelines raises a substantial question).
We apply the following standard of review to discretionary sentencing
issues:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored
or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa.Super. 2018) (quoting
Commonwealth v. Mann, 957 A.2d 746, 749 (Pa.Super. 2008)).
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“If the court imposes a sentence outside of the [S]entencing
[G]uidelines, it must provide a written statement setting forth the reasons for
the deviation and the failure to do so is grounds for resentencing.”
Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007). The written
statement requirement is met where the court set forth its reasoning on the
record at the sentencing. Commonwealth v. Feucht, 955 A.2d 377, 383
(Pa.Super. 2008).
“[U]nder the Sentencing Code an appellate court is to exercise its
judgment in reviewing a sentence outside the sentencing guidelines to assess
whether the sentencing court imposed a sentence that is ‘unreasonable.’”
Walls, 926 A.2d at 963 (citing 42 Pa.C.S.A. § 9781(c), (d)). The General
Assembly has set forth four factors that an appellate court is to consider when
determining whether a sentence is unreasonable:
(d) Review of record.—In reviewing the record the
appellate court shall have regard for:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
Here, the trial court considered the pre-sentence report, the Sentencing
Guidelines, and Osborne’s lack of a prior record. It then stated on the record
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its reasons for deviating from the guidelines for each count. N.T., 7/31/2020,
at 16-18; Sentencing Order. It again summarized the reasons in its Rule
1925(a) opinion, including that his child witnessed the assault and Osborne’s
threats to harm the victim and child:
At sentencing this court indicated on the record that it had
fully considered the presentence report prepared and the
[S]entencing [G]uidelines. The [c]ourt did take into
consideration that [Osborne] lacked any prior record as set
forth in the PSI. The court indicated that the sentence would
be outside the guidelines and gave specific reasons for that
on the record and in the written sentence order. First, and
most importantly, [Osborne] raped the victim in the
presence of their young child. The court indicated on the
record that [Osbrone] managed to take the most violent and
damaging act that can be perpetrated upon a woman and
made it even more horrific for her by assaulting her in front
of her child. Frankly, this circumstance alone justifies the
imposition of the maximum sentence. In addition, the court
indicated that the sentence was outside the guidelines due
to [Osborne’s] threats to harm the victim and her child if
she continued to resist. Finally, [Osborne] used increasing
force and covered the victim’s mouth when she was
screaming for [Osborne] to stop. The nature and
circumstances of this case greatly outweighed other
considerations including [Osborne’s] lack of a prior record.
This court can't imagine a defendant more in need of a
lengthy period of incarceration and rehabilitative services
than a man who would forcibly rape the mother of his child
while threatening to physically harm both mother and child,
in front of the child. This court can’t begin to fathom the
long lasting trauma and devastating emotional harm
suffered by the victim.
With respect to [the] sentence imposed for Endangering the
Welfare of a Child, this court cited two factors for the
imposition of a sentence outside of the guidelines. First,
[Osborne’s] actions in this matter were “so far beyond the
type of conduct this offense is designed to punish that a
sentence in the guidelines would be a miscarriage of
justice.” The court noted that the harm caused to the child
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by witnessing the brutal sexual assault of the child’s mother
was “unfathomable.” Second, the court indicated that the
child was also the victim’s child and to harm his own child
in this manner indicates that he represented a grave danger
to the community. The impact of [Osborne’s] conduct upon
the lives of both victims in this case is immeasurable. It
outweighs all other considerations.
1925(a) Op. at 8-9 (emphasis in original).
The trial court did not abuse its discretion. The court considered the pre-
sentence report, and all relevant factors, and provided more than adequate
reasons for the sentence. We cannot say that, considering the nature and
circumstances of the offense and the defendant, the opportunity for the
sentencing court to observe the defendant and the PSI, the findings on which
the court based the sentence, and the guidelines, that Osborne’s sentence
was unreasonable.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/08/2021
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