OSMAN (DEBBIE SUE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: NOVEMBER 24, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000666-MR
DEBBIE SUE OSMAN
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE SUSAN SCHULTZ GIBSON, JUDGE
ACTION NOS. 06-CR-002972 & 06-CR-003949
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: CLAYTON, NICKELL AND THOMPSON, JUDGES.
NICKELL, JUDGE: Debbie Sue Osman, pro se, appeals from an order of the
Jefferson Circuit Court denying her motion for RCr1 11.42 relief. Upon review of
the briefs, the record and the law, we affirm.
1
Kentucky Rules of Criminal Procedure.
By indictment number 06-CR-002972, returned on September 18,
2006, Osman was charged with two counts of welfare fraud,2 for which she was
arraigned on November 1, 2006. By separate indictment number 06-CR-003949,
returned on December 12, 2006, Osman was charged as a persistent felony
offender in the first degree (PFO I).3 It is undisputed that Osman was not arraigned
on the PFO I charge.
On January 9, 2007, Osman appeared in open court, with counsel, and
changed her plea of not guilty to guilty on the two underlying offenses as well as
the charge of being a PFO I. Osman, and her attorney, signed both the
Commonwealth’s offer on a plea of guilty and the motion to enter guilty plea.
These documents set out the Commonwealth’s offer of five years on each of the
two welfare fraud charges, enhanced to ten years by virtue of Osman’s PFO I
status, to run concurrently for a total sentence of ten years. However, if Osman
failed to cooperate in preparing the presentence investigation report or received
additional charges classified as a Class B misdemeanor or greater, she agreed to
serve a sentence of twenty years.
Prior to the guilty plea colloquy, the Commonwealth stated on the
record that Osman was to receive five years on each count of welfare fraud,
enhanced to ten years on each count by virtue of her PFO I status, to run
2
The formal charge was false statement/misrepresent to receive benefits over $100.00, a Class
D felony, codified at Kentucky Revised Statutes (KRS) 194A.505.
3
KRS 532.080.
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concurrently for a total of ten years in the penitentiary. During the colloquy,
Osman admitted the following: her attorney had gone over her rights with her, the
charges against her and any defenses to those charges; she wanted to plead guilty;
she had had enough time to discuss the Commonwealth’s offer with her attorney
and was satisfied with his advice; Osman had read the plea sheets, signed the plea
sheets, and understood everything contained in the plea sheets; Osman understood
she was giving up her right to remain silent, to counsel, to a jury trial, to the
Commonwealth having to prove its case, to cross-examine witnesses, to present
evidence, to testify, and to appeal; Osman understood the conviction was on the
record and could be used against her as part of another PFO charge; Osman’s
guilty plea was not the result of promises, threats or coercion; Osman understood
she was facing a maximum sentence of twenty years in the penitentiary; Osman
admitted committing the charged offenses and confirmed there was a basis for her
conviction as a PFO I; and, Osman understood the proceedings and wanted to enter
a guilty plea. At the conclusion of the guilty plea colloquy, the court found Osman
was entering the guilty plea knowingly and voluntarily. Before leaving the
courtroom, Osman shook hands with her attorney and thanked him for his work.
Sentencing occurred on March 22, 2007. Osman personally addressed
the court but raised no complaint about the PFO I charge. The Commonwealth
urged that the twenty-year sentence be imposed due to a new felony charge Osman
received for negotiation of an invalid check in Indiana. Thereafter, the court
imposed five years on each of the underlying welfare fraud charges, enhanced to
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twelve years as a PFO I. The court chose not to impose the twenty-year sentence
to which Osman had previously agreed because the court believed it to be
disproportionate to Osman’s criminal conduct.
On June 29, 2007, Osman filed a pro se motion to vacate pursuant to
RCr 11.42. The court summarized the six grounds alleged as:
1. The Movant asserts that her guilty plea was the product
of duress.
2. The Court failed to arraign her on the separate indictment
charging her as a Persistent Felony Offender in the First
Degree, and failed to order a mental examination
pursuant to KRS 210.360.
3. The Commonwealth’s failure to examine the Movant
pursuant to KRS 210.360 waives any argument the
Commonwealth would have as to her competence.
4. Her counsel failed to challenge the PFO charge, which
was based on unqualified prior felonies.
5. Her counsel was ineffective for advising her to plead to
the PFO charge.
6. Her counsel was ineffective for failing to move for a
mental examination.
In denying the requested relief, the court wrote in pertinent part:
[Osman] is correct that she was never arraigned on the
charge of Persistent Felony Offender in the First Degree.
The purpose of the arraignment is essentially one of
notice, informing her of the charges against her and
allowing her to plead guilty or not guilty to the charge.
The purpose of arraignment is also to inform the
defendant of her right to counsel and the privilege against
self-incrimination. In this case, the PFO indictment was
handed down by the grand jury on December 12, 2006,
about three months after the indictment for the
underlying charges. At the time of the PFO indictment,
the Movant was already represented by counsel. At the
next court date following the PFO indictment, the
Movant entered her guilty plea to the substantive charges
and to the PFO charge. The Movant was represented by
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counsel at all times during these proceedings. During the
plea itself, the PFO charge was discussed repeatedly.
During the prosecutor’s recitation of the agreement, he
discusses her PFO status. On the front of the
Commonwealth’s Offer on a Plea of Guilty, under
Section 1, “Charges and Penalties,” the prosecutor has
written “PFO I 06CR3949.” Under Section 4, “Facts of
the Case,” the prosecutor has written, “Under Indictment
06CR3949, [defendant] qualifies as a Persistent Felony
Offender in the First Degree.” Under Section 5,
“Recommendations on a Plea of Guilty (Plea
Agreement),” the prosecutor follows the recommendation
on the underlying charges with “enhanced to 10 years
each by virtue of the [defendant’s] PFO I status.” During
the course of the plea colloquy, the Movant states that
she’s read and understands everything in the plea sheet.
The Court asked if she understood that this conviction
could be used against her as part of “another PFO
charge,” and she stated “Yes.” The Court asked, “Are
you also acknowledging that there is a basis to charge
and convict you as a Persistent Felony Offender in the
first degree?” to which the Movant answers “Yes.” The
Court read the facts of the case to the Movant, including
the portion regarding the PFO charge. The Movant was
nodding throughout the recitation, and when asked by the
Court if she agreed with those facts, she stated “Yes.”
At the close of the proceeding, the Movant was asked if
she had any questions about the proceeding, and she
stated “No.” At no time during the plea colloquy did she
appear confused or surprised about the PFO charge. At
no time did she ask any question related to the PFO
charge. The record clearly refutes the Movant’s claim
that she was surprised by the PFO charge and the plea to
it was therefore involuntary.
...
The Court will note that the Movant’s dissatisfaction
with the plea became apparent only when the Court
imposed a stringent sentence (although less than agreed
to by the Movant in the event of noncompliance with the
terms of release) when the Movant, after her release
following the plea, was charged with a felony in Indiana.
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The Court finds that the Movant was more than
adequately informed of the consequences of noncompliance during the course of the plea.
On February 23, 2009, the trial court denied the motion for post-conviction relief.
On appeal, Osman claims she was not arraigned on the PFO I charge,
her attorney never told her she was charged as a PFO I and he never explained the
PFO I charge to her. This appeal follows.
LEGAL ANALYSIS
In an RCr 11.42 proceeding, the movant has the burden of
establishing convincingly that she was deprived of a substantial right that would
justify the extraordinary relief afforded by the post-conviction proceeding. Dorton
v. Commonwealth, 433 S.W.2d 117, 118 (Ky. 1968). Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets forth the standards
which measure ineffective assistance of counsel claims. To be ineffective, the
performance of counsel must fall below the objective standard of reasonableness
and be so prejudicial as to deprive a defendant of a fair trial and a reasonable
result. Id. “Counsel is constitutionally ineffective only if performance below
professional standards caused the defendant to lose what he otherwise would
probably have won.” United States v. Morrow, 977 F.2d 222, 229 (6th Cir. 1992),
cert. denied, 508 U.S. 975 (1993). Thus, the critical issue is not whether counsel
made errors, but whether counsel was so “manifestly ineffective that defeat was
snatched from the hands of probable victory.” Id.
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In considering an ineffective assistance of counsel claim, the
reviewing court must focus on the totality of the evidence before the trial court or
jury and assess the overall performance of counsel throughout the case to
determine whether the alleged acts or omissions overcome the presumption that
counsel rendered reasonable professional assistance. Strickland; see also
Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574, 91 L.Ed.2d 302 (1986). A
defendant is not guaranteed errorless counsel, or counsel judged ineffective by
hindsight, but counsel likely to render reasonably effective assistance. McQueen v.
Commonwealth, 949 S.W.2d 70 (Ky. 1997), cert. denied, 521 U.S. 1130 (1997).
The Supreme Court in Strickland noted that a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Osman alleges she was unaware of the PFO I charge until she entered
her guilty plea. Having reviewed the videotape of the guilty plea hearing, as well
as the Commonwealth’s offer on a plea of guilty and the motion to enter guilty
plea, both of which were signed by Osman and her attorney, we reject Osman’s
claim. During the guilty plea colloquy Osman appears completely aware of her
surroundings and her actions. She answers the court’s questions quickly and
without hesitation, confirming that she is fully aware of the charges against her and
all that is contained within the plea sheets she signed. Her allegations on appeal
are simply unsupported by her actions during the entry of the guilty plea. As a
result, Osman has not overcome the strong presumption that counsel’s conduct
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falls within the wide range of reasonable professional assistance. Strickland, 466
U.S. at 689, 104 S.Ct. at 2065. Therefore, denial of the RCr 11.42 motion was
supported by the evidence and will not be overturned on appeal.
We comment briefly upon the lack of arraignment on the PFO I
charge. “The purpose and necessity of an arraignment is to fix the identity of the
accused, to inform him of the nature of the charge preferred against him, and to
give him an opportunity to plead thereto.” Dunn v. Commonwealth. 350 S.W.2d
709, 712 (Ky. 1961) (citing 14 Am.Jur., Criminal Law, § 249, p. 939; Bishop's
New Criminal Procedure, Vol. 2, sec. 728, p. 574). Furthermore, the United States
Supreme Court has held that a formal arraignment is unnecessary “so long as it
appears that the accused has had sufficient notice of the accusation and an adequate
opportunity to defend himself in the prosecution.” Garland v. Washington, 232
U.S. 642, 645, 34 S.Ct. 456, 457, 58 L.Ed. 772 (1914). Osman was already
represented by counsel when the PFO I charge was returned. During the guilty
plea colloquy, she was asked whether she was admitting there was sufficient proof
to charge her as a PFO I. Instead of questioning the charge, denying the charge or
seeking a continuance to defend against the charge, she responded “Yes.” Based
upon her response, we discern no showing of prejudice from the lack of an
arraignment. Because Osman was not prejudiced by the trial court’s failure to
arraign her on the PFO I charge, she is not entitled to relief.
For the foregoing reasons, the order of the Jefferson Circuit Court
denying post-conviction relief is affirmed.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Debbie Osman, pro se
Wheelwright, Kentucky
Jack Conway
Attorney General of Kentucky
Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky
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