State v. Osborn

S
                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                         STATE V. OSBORN


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                 STATE OF NEBRASKA, APPELLEE,
                                                 V.

                                DANIEL A.J. OSBORN, APPELLANT.


                            Filed February 16, 2021.     No. A-20-487.


       Appeal from the District Court for Dodge County: GEOFFREY C. HALL, Judge. Affirmed.
       Kenneth Jacobs, of Jacobs Alexander Law, for appellant.
       Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.


       PIRTLE, Chief Judge, and MOORE and RIEDMANN, Judges.
       MOORE, Judge.
                                       I. INTRODUCTION
        Following Daniel A.J. Osborn’s motion for postconviction relief, the district court for
Dodge County granted his motion in the form of a new direct appeal. Pursuant to that order, Osborn
has filed this direct appeal of his plea-based convictions of two counts of incest with a minor. On
appeal, Osborn claims that he received ineffective assistance of trial counsel and that his sentences
were excessive. We affirm.
                                       II. BACKGROUND
        On September 16, 2019, the State filed a complaint in the county court, charging Osborn
with two counts of incest with a minor on certain dates, both Class IIA felonies, and two counts of
child abuse (on the same dates as the incest charges), both Class IIIA felonies. On November 13,
the State filed an information in the district court, only charging Osborn with the two counts of
incest with a minor. In exchange for Osborn’s pleas of no contest to the information, the State did



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not file the two additional charges (the child abuse counts) and did not seek to file additional
charges based on its investigations. In reciting the plea agreement for the district court, Osborn’s
attorney also stated that “[t]here will be a [presentence investigation (PSI)] conducted, no objection
to psychosexual evaluation, but no other agreement regarding sentencing.” The State also noted
that Osborn was aware he would have to register as a sex offender. Osborn confirmed that this was
his understanding of the plea agreement.
        Upon the district court’s inquiry, Osborn affirmed that he had had enough time to discuss
the matter with his attorney, who had answered all of his questions, and that he was satisfied with
his attorney’s work. Osborn also affirmed his understanding that the court was in charge of
sentencing him and could consider the fact that charges had been dropped. He also affirmed his
understanding of the possible sentences and that they could be imposed either concurrently or
consecutively. He again affirmed his understanding that he would need to register as a sex
offender, but when the court asked if he understood that failure to comply with registration
requirements would be a new felony, he stated, “I do now.” The court then directed him to go over
that requirement with his attorney before sentencing.
        Before accepting Osborn’s pleas, the district court informed him of the various
consequences of his pleas and the rights he would be waiving by pleading, and Osborn indicated
his understanding of the court’s advisements. Osborn also affirmed that no one had made any
threat, used any force, or held out any promise, other than the plea agreement, to get him to waive
these rights and enter pleas of no contest; that he had no questions about his rights; that he had had
an opportunity to discuss his rights with his attorney; and that he was waiving his rights freely,
voluntarily, knowingly, and intelligently. Finally, Osborn confirmed his understanding of the
court’s advisement of what the State would have to prove at trial in order to convict him of the
counts charged in the information.
        According to the factual basis provided by the State, Osborn sexually penetrated the victim
“with vaginal intercourse” throughout July 2019 and again on or about August 24, 2019. The
victim was born in June 2002 and was 17 “during both occasions.” Osborn was born in June 1970,
is the victim’s biological father, and was aware of this biological relationship.
        Osborn’s attorney expressed his belief that Osborn’s pleas of no contest were consistent
with the law and the facts of the case and that Osborn was making his pleas freely, voluntarily,
knowingly, and intelligently. He knew of no reason why the district court should not accept the
pleas. Osborn then informed the court that he still wished to plead no contest. The court accepted
Osborn’s no contest pleas and found him guilty of the charges in the information.
        A PSI was prepared, and the district court subsequently sentenced Osborn to 19 to 20 years’
imprisonment on each count of incest with a minor with the sentences to run consecutively. The
court gave Osborn credit for 140 days already served.
        Following a postconviction motion in which Osborn alleged that his trial counsel was
ineffective in failing to file a direct appeal, Osborn was granted relief in the form of a new direct
appeal. This appeal followed. Osborn is represented on appeal by different counsel than
represented him during his plea and sentencing.




                                                -2-
                                 III. ASSIGNMENTS OF ERROR
         Osborn asserts that the district court abused its discretion by imposing an excessive
sentence. He also asserts that he received ineffective assistance of counsel because his trial counsel
(1) only met with Osborn two times prior to allowing him to enter a plea to the information; (2)
allowed him to enter a plea without previously reviewing the discovery, including written reports
and video interviews with Osborn; (3) told Osborn prior to entering a plea that he would receive a
sentence of 2 to 3 years and had counsel not stated this, Osborn would not have pled no contest;
(4) failed to seek out or review evidence that could be potentially exculpatory or mitigate Osborn’s
actions, including messages on his phone; (5) failed to explain to Osborn what a deposition consists
of and failed to depose any witnesses; (6) failed to review the PSI with Osborn prior to proceeding
with sentencing; and (7) failed to argue during sentencing that Osborn was a low risk to reoffend
based on the presentence investigation evaluations and the psychosexual evaluation.
                                  IV. STANDARD OF REVIEW
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Clausen, 

307 Neb. 968

, 

951 N.W.2d 764

(2020). An
abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or conscience, reason, and evidence. State v.
Senteney, 

307 Neb. 702

, 

950 N.W.2d 585

(2020).
        Whether a claim of ineffective assistance of trial counsel can be determined on direct
appeal presents a question of law, which turns upon the sufficiency of the record to address the
claim without an evidentiary hearing or whether the claim rests solely on the interpretation of a
statute or constitutional requirement. State v. Collins, 

307 Neb. 581

, 

950 N.W.2d 89

(2020). An
appellate court determines as a matter of law whether the record conclusively shows that (1) a
defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a
defense counsel’s alleged deficient performance.

Id. V.

ANALYSIS
                                      1. EXCESSIVE SENTENCE
        Osborn was convicted of two counts of incest with a minor, both Class IIA felonies, and
sentenced to consecutive terms of imprisonment of 19 to 20 years. See Neb. Rev. Stat. § 28-703
(Reissue 2016). Class IIA felonies are punishable by up to 20 years’ imprisonment. See Neb. Rev.
Stat. § 28-105 (Cum. Supp. 2020). Osborn’s sentences were within the statutory limits.
        Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether a sentencing court abused its discretion in considering
and applying the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed. State v. Stack, 

307 Neb. 773

, 

950 N.W.2d 611

(2020). In determining a
sentence to be imposed, relevant factors customarily considered and applied are the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7)
the nature of the offense and (8) the amount of violence involved in the commission of the crime.




                                                -3-

Id. However, the sentencing

court is not limited to any mathematically applied set of factors, but
the appropriateness of the sentence is necessarily a subjective judgment that includes the
sentencing judge’s observations of the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life. State v. Gray, 

307 Neb. 418

, 

949 N.W.2d 320

(2020).
        Osborn argues that the district court abused its discretion in not considering many of the
factors set forth above. He argues further that in looking at the facts and circumstances surrounding
his crimes and his demeanor and attitude at the time of sentencing, the court did not impose
appropriate sentences.
        Osborn was 41 years old at the time he was interviewed for the PSI. He completed school
through the 11th grade and was unemployed at the time of his interview due to his incarceration.
He was employed at a dairy prior to his arrest. Osborn’s minimal prior criminal history consists
only of a second offense driving while suspended and failure to appear, both in Kansas and listed
as “[d]isposition [u]known” on the PSI; he has never served a term of supervision or incarceration.
On the Level of Service/Case Management Inventory, Osborn scored in the overall medium low
risk to reoffend with very high or high risk scores in the family/marital and leisure/recreation
domains and very low to medium risk scores in the other domains. He scored as a moderate-low
risk to reoffend in crimes that are sexual in nature on the Vermont Assessment for Sex Offender
Risk assessment. He completed a psychosexual evaluation but that evaluation was completed after
his interview by probation and was not included in the PSI.
        At the sentencing hearing, the district court indicated that it had reviewed the PSI as well
as the psychosexual evaluation report. Upon the court’s inquiry, Osborn’s attorney confirmed that
he had had an opportunity to review both documents and discuss them with Osborn. Neither the
State nor Osborn had any additions, corrections, or changes to either document. The State asked
the court to impose the maximum sentence and to consider having Osborn follow the terms of the
psychosexual evaluation (which are not found in the record on appeal) during his imprisonment.
Osborn’s attorney acknowledged that there was no justification for Osborn’s crimes but noted his
acceptance of responsibility and his cooperation with probation and the evaluation process. He
asked the court to make the terms of any imprisonment consistent with both the crimes and the
“other aspects” of Osborn reflected in the PSI, including his “very small criminal record.” When
given the opportunity to address the court, Osborn expressed his regret and the lack of justification
for his crimes.
        In sentencing Osborn, the district court stated that it had considered the nature and
circumstances of the crimes; Osborn’s history, character, and condition; and the PSI, psychosexual
evaluation, and all statements received. The court stated that it found imprisonment necessary
because the risk was substantial that during a period of probation, Osborn would engage in
additional criminal conduct; that he was in need of correctional treatment that could be provided
most effectively by commitment to a correctional facility; and that a lesser sentence would
depreciate the seriousness of the crimes or promote disrespect for the law. Finally, after imposing
consecutive sentences of 19 to 20 years’ imprisonment, the court stated:
        This behavior is despicable. I cannot imagine the detrimental impact that you have caused
        this young girl, your own daughter. This sentence is a lengthy sentence as allowed by law.



                                                -4-
       It’s my duty to protect the public. And in this case I am going to maximize, to the extent
       that I can, your time in the Penitentiary, but I will order that, if possible, the
       recommendations made in this report be followed, because at some point, you will be out.
       If you re-offend, I can’t help but think that some judge somewhere will give you as lengthy
       a sentence as possible.

       The district court clearly considered the relevant factors, including the information in the
PSI and psychosexual evaluation, and the statements made at sentencing. Based upon this record,
we can find no abuse of discretion by the court in the sentences imposed.
                             2. INEFFECTIVE ASSISTANCE OF COUNSEL
        Osborn asserts that he received ineffective assistance of trial counsel in several respects.
He argues that the record is insufficient to review any of these assignments of error on direct appeal
but that they have been stated with enough particularity to preserve them for postconviction
review. Osborn is represented on direct appeal by different counsel than trial counsel. When a
defendant’s trial counsel is different from his or her counsel on direct appeal, the defendant must
raise on direct appeal any issue of trial counsel’s ineffective performance which is known to the
defendant or is apparent from the record. State v. Devers, 

306 Neb. 429

, 

945 N.W.2d 470

(2020).
Once issues of trial counsel’s ineffective performance are properly raised, the appellate court will
determine whether the record on appeal is sufficient to review the merits of the ineffective
performance claims.

Id. When a claim

of ineffective assistance of trial counsel is raised in a direct appeal, the
appellant is not required to allege prejudice; however, an appellant must make specific allegations
of the conduct that he or she claims constitutes deficient performance by trial counsel.

Id. General allegations that

trial counsel performed deficiently or that trial counsel was ineffective are
insufficient to raise an ineffective assistance claim on direct appeal. State v. Weathers, 

304 Neb. 402

, 

935 N.W.2d 185

(2019). In order to know whether the record is insufficient to address
assertions on direct appeal that trial counsel was ineffective, appellate counsel must assign and
argue deficiency with enough particularity (1) for an appellate court to make a determination of
whether the claim can be decided upon the trial record and (2) for a district court later reviewing
a petition for postconviction relief to be able to recognize whether the claim was brought before
the appellate court. State v. 

Devers, supra

. An ineffective assistance of counsel claim made on
direct appeal can be found to be without merit if the record establishes that trial counsel’s
performance was not deficient or that the appellant could not establish prejudice. State v. 

Weathers, supra

.
        To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,

466 U.S. 668

, 

104 S. Ct. 2052

, 

80 L. Ed. 2d 674

(1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. State v. Clausen, 

307 Neb. 968

, 

951 N.W.2d 764

(2020). In a plea context,
deficiency depends on whether counsel’s advice was within the range of competence demanded
of attorneys in criminal cases. State v. Blaha, 

303 Neb. 415

, 

929 N.W.2d 494

(2019). The prejudice
requirement in a plea context is satisfied if the defendant shows a reasonable probability that but



                                                -5-
for the errors of counsel, the defendant would have insisted on going to trial rather than pleading
guilty. State v. Haynes, 

299 Neb. 249

, 

908 N.W.2d 40

(2018), disapproved on other grounds, State
v. Allen, 

301 Neb. 560

, 

919 N.W.2d 500

(2018). A reasonable probability is a probability sufficient
to undermine confidence in the outcome. State v. Collins, 

307 Neb. 581

, 

950 N.W.2d 89

(2020).
In determining the prejudice component of alleged ineffective assistance of counsel in a plea
context, the likelihood of the defense’s success had the defendant gone to trial should be considered
along with other factors, such as the likely penalties the defendant would have faced if convicted
at trial, the relative benefit of the plea bargain, and the strength of the State’s case. State v. 

Haynes, supra

.
                                (a) Failure to Meet More Than Twice
        Osborn claims that his trial counsel was ineffective in meeting with him only two times
prior to allowing him to enter a plea.
        This claim is refuted by the record. When asked at the plea hearing whether he had enough
time to discuss the matter with his attorney, whether his attorney had answered all of his questions,
and whether he was satisfied with his attorney’s work and believed he knew what he was doing,
Osborn replied affirmatively. Osborn also affirmed that he had had an opportunity to discuss his
rights with his attorney. See State v. Vanderpool, 

286 Neb. 111

, 

835 N.W.2d 52

(2013) (allegations
of ineffective assistance which are affirmatively refuted by defendant’s assurances to sentencing
court do not constitute basis for postconviction relief). This assigned error fails.
                                   (b) Failure to Review Discovery
        Next, Osborn claims his trial counsel was ineffective for allowing Osborn to enter a plea
without previously reviewing the discovery, including written reports and video interviews with
him. Osborn argues that it was “deficient practice by trial counsel not to review said evidence with
[him]” and that had his counsel done so, there is a reasonable probability that he would have
insisted on going to trial rather than pleading no contest. The record on direct appeal is insufficient
to address what evidence trial counsel reviewed with Osborn prior to the plea proceedings, but this
assignment of error is stated with sufficient particularity to preserve it for postconviction review.
                                        (c) Sentencing Promise
        Osborn asserts that he received ineffective assistance because his trial counsel told him
prior to entering a plea that he would receive a sentence of 2 to 3 years. Osborn asserts that had
counsel not stated this, he would not have pled no contest.
        The record clearly refutes this claim. At the plea hearing, the district court advised Osborn
of the possible penalty ranges, including the fact that sentences could be imposed consecutively,
and the fact that the court was not bound by the plea agreement and would be the one deciding his
sentence. Osborn affirmed his understanding of these advisements. The recitation of the plea
agreement specified that there was no agreement as to sentencing, and Osborn confirmed his
understanding that the plea agreement was as it had been recited. He also affirmed that no promises
had been made to him to get him to waive his rights and enter a plea. Osborn has failed to show
deficient performance in this regard. See State v. Vanderpool, supra.




                                                  -6-
                               (d) Failures With Respect to Evidence
        Osborn asserts that he received ineffective assistance because his trial counsel failed to
seek out or review evidence that could be potentially exculpatory or mitigate Osborn’s actions,
including messages on his phone. He argues his attorney failed “to independently investigate
specific evidence of [sic] [Osborn’s] phone as requested by [Osborn].” Brief for appellant at 17.
He explains that he had informed his attorney that there were messages on his phone that would
“mitigate and explain how [Osborn] came to have a sexual relationship with his biological child,”
particularly with respect to any allegations of force or coercion by Osborn.

Id. He argues that

there
is a reasonable probability that the evidence that would have been obtained from his phone would
have led him to insist on going to trial.
        The issue of whether the victim was forced or coerced into participating is not an element
of incest with a minor, the crime with which Osborn was charged and to which he pled. See Neb.
Rev. Stat § 28-703 (Reissue 2016). Accordingly, any such evidence would have had no bearing on
whether Osborn was guilty of incest with a minor. In terms of mitigation, Osborn had the
opportunity to speak at sentencing and stated that there was no excuse for what happened. We
note, however, that his version of events (that the sexual intercourse was consensual) is found in
the police reports contained in the PSI, which was reviewed by the district court. Osborn cannot
show prejudice. This assignment of error fails.
                             (e) Failures With Respect to Depositions
        Osborn asserts that he received ineffective assistance because his trial counsel failed to
explain to him what a deposition consists of and the fact that he could depose certain witnesses.
He also asserts that his attorney was ineffective for failing to depose any witnesses. He argues that
had his attorney done these things, there is a reasonable probability that he would have insisted on
going to trial. Osborn notes that according to the PSI, law enforcement interviewed “at least three
separate witnesses.” Brief for appellant at 18. He argues that he may have been “unaware of the
amount of witnesses” due to his attorney’s failure to review this evidence with him.

Id. Other than referencing

the fact that police reports show law enforcement interviewed at
least three witnesses, Osborn does not specify the names of which witnesses should have been
deposed by his trial counsel or provide a description of any testimony they might have provided.
The State argues that Osborn has not stated this claim with sufficient particularity either for this
court to address it on direct appeal or preserve it for postconviction review and compares the
allegations here to situations where an appellant has alleged a failure to call witnesses at trial. See
State v. Lee, 

304 Neb. 252

, 

934 N.W.2d 145

(2019) (appellate counsel must give on direct appeal
names or descriptions of uncalled witnesses forming basis of claim of ineffective assistance;
otherwise, potential postconviction court would be unable to identify whether claim based on
alleged failure to call particular witness was preserved on direct appeal; failure to call named
witness raised with sufficient specificity, claims concerning “adverse witnesses” not been
preserved); State v. Mora, 

298 Neb. 185

, 

903 N.W.2d 244

(2017) (defendant alleged attorney
should have called, as character witnesses, individuals he worked with and friends and relatives
who had seen him with victim prior to allegations; defendant’s descriptions were too broad and
indefinite to raise and preserve his allegations of deficient conduct). See, also, State v. Mrza, 302



                                                 -7-
Neb. 931, 

926 N.W.2d 79

(2019) (assignments of error on direct appeal regarding ineffective
assistance of trial counsel must specifically allege deficient performance, and appellate court will
not scour remainder of brief in search of such specificity). Osborn’s assignment of error simply
states that his counsel failed to depose “any witnesses.” He has not alleged this claim with
sufficient particularity.
                             (f) Failures With Respect to Sentencing
        Finally, Osborn asserts that he received ineffective assistance of counsel because his trial
counsel failed to review the PSI with him prior to proceeding with sentencing and because his trial
counsel failed to argue during sentencing that Osborn was a low risk to reoffend based on the
evaluations found in the PSI and the psychosexual evaluation. With respect to his assertion that
his attorney failed to review the PSI with him prior to sentencing, he recognizes that he was aware
of the things he told the probation officer. He argues, however, that without reviewing the
remaining information in the PSI he would not have known “what is recommended or what the
victim impact statement was.” Brief for appellant at 19. He argues that had he known that his
attorney would fail to review such an important item with him, he would not have pled no contest.
As to the alleged failures with respect to his counsel’s arguments during sentencing, Osborn points
to certain information found in the PSI and argues that his attorney was ineffective for failing to
direct the court’s attention to this information during sentencing. He also argues that had he known
of these deficiencies of his trial counsel, he would have insisted on going to trial.
        The record affirmatively refutes this claim. With respect to the first part of the assigned
error, Osborn’s counsel stated at sentencing he had reviewed the PSI with Osborn. Osborn did not
disagree with that assertion at sentencing. As to his counsel’s failure to point out certain
information in the PSI during argument at sentencing, Osborn cannot show prejudice. The district
court indicated that it had reviewed and considered both the PSI and the psychosexual evaluation
in sentencing Osborn. These assignments of error fail.
                                        VI. CONCLUSION
       We find no abuse of discretion in the sentences imposed. We affirm Osborn’s convictions
and sentences. With respect to those claims of ineffective assistance of trial counsel which were
adequately pled and for which the record is sufficient to review on direct appeal, the record refutes
that Osborn received ineffective assistance from his trial counsel.
                                                                                          AFFIRMED.




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