State v. Osborne ( 2020 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Respondent,
v.
GREGORY SCOTT OSBORNE, Petitioner.
No. 1 CA-CR 20-0305 PRPC
FILED 11-10-2020
Petition for Review from the Superior Court in Maricopa County
No. CR2015-005539-001
The Honorable John Christian Rea, Judge
REVIEW GRANTED; RELIEF DENIED
COUNSEL
Maricopa County Attorney’s Office, Phoenix
By Amanda M. Parker
Counsel for Respondent
DuMond Law Firm PLLC, Phoenix
By Samantha Kelli DuMond
Counsel for Petitioner
STATE v. OSBORNE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Randall M. Howe, Judge Kent E. Cattani and Judge
Cynthia J. Bailey delivered the decision of the Court.
PER CURIAM:
¶1 Petitioner Gregory Scott Osborne petitions this court for
review from the dismissal of his petition for post-conviction relief (“PCR”).
We have considered the petition for review and, for the reasons stated,
grant review but deny relief.
¶2 After a settlement conference, Osborne pled guilty to three
amended offenses: molestation of a child, a class 2 felony; attempt to
commit molestation of a child, a class 3 felony; and attempt to commit
sexual conduct with a minor, a class 3 felony. All offenses are dangerous
crimes against children (“DCAC”). Following the terms of the plea, the trial
court sentenced Osborne to a slightly mitigated term of 15 years in prison
to be followed by lifetime probation. Osborne timely initiated PCR
proceedings, claiming ineffective assistance of counsel (“IAC”), no factual
basis to support the plea, and other due process violations. After the State
responded, the superior court summarily dismissed the petition. This
petition for review followed.
¶3 To state a colorable claim of IAC, a defendant must show that
counsel’s performance fell below objectively reasonable standards and that
the deficient performance prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668, 687 (1984); State v. Nash, 143 Ariz. 392, 397 (1985).
If a defendant fails to make a sufficient showing on either prong of the
Strickland test, the trial court need not determine whether the defendant
satisfied the other prong. State v. Salazar, 146 Ariz. 540, 541 (1985).
Additionally, a plea agreement waives all non-jurisdictional defenses, as
well as errors and defects that occurred prior to the plea, including
deprivations of constitutional rights. State v. Moreno, 134 Ariz. 199, 200
(App. 1982); Tollett v. Henderson, 411 U.S. 258, 267 (1973). IAC claims
directly related to the entry of the plea may be asserted, but State v. Quick,
177 Ariz. 314, 316 (App. 1993), but the burden is on the defendant to show
IAC, and “the showing must be that of a provable reality, not mere
speculation.” State v. Rosario, 195 Ariz. 264, 268, ¶ 23 (App. 1999).
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STATE v. OSBORNE
Decision of the Court
¶4 Here, Osborne fails to state a colorable claim of IAC. His
arguments are either waived or unsupported by the record. First, Osborne
claims counsel was ineffective for failing to object to consideration of the
victim’s allegations that Osborne molested the victim in another state. But
trial counsel in fact argued at sentencing that Osborne’s lack of criminal
history was a mitigating factor, pointing out that despite the State’s
attempts to find proof of an earlier out-of-state offense, nothing was found.
¶5 Osborne also claims trial counsel was ineffective for failing to
file a motion to remand to the grand jury due to errors in the indictment.
However, because Osborne pled guilty, any objection to the indictment is
waived. Regardless, the record shows that the parties were aware of the
issues in the indictment. During the settlement conference, the State
indicated its willingness to amend the indictment should the case go to trial,
noting that any change to the indictment would still carry a DCAC
allegation. Further, Osborne expressly agreed that the charges in the plea
agreement could be amended without making the State obtain a new
charging document. Osborne fails to show how he was prejudiced by
counsel not filing the motion.
¶6 Osborne makes general claims of poor communication with
counsel, asserting that he would not have entered the plea had he been
properly advised by counsel. But without more than mere generalizations
and unsubstantiated claims, Osborne fails to state a colorable claim of IAC.
See State v. Borbon, 146 Ariz. 392, 399 (1985).
¶7 Osborne next argues that there was no factual basis to support
the plea because the State did not prove the offenses were sexually
motivated beyond a reasonable doubt. Osborne also alleges there was no
factual basis to support the DCAC allegation because the last day of the
date range on the plea included the victim’s fifteenth birthday. But the date
range included dates supporting the DCAC allegation, and based on the
record before us, we cannot say that the factual basis was deficient. See State
v. Salinas, 181 Ariz. 104, 106 (1994) (stating the factual basis need not show
guilt beyond a reasonable doubt; only strong evidence of guilt need be
established); State v. Sodders, 130 Ariz. 23, 25 (App. 1981) (stating the factual
basis to support a plea may be ascertained from the extended record).
Again, Osborne fails to state a colorable claim.
¶8 Finally, Osborne argues that his sentence is illegal, claiming it
was enhanced twice by the age of the victim. See A.R.S. §§ 13-705(C) and
(D) (sentence enhancements for sexual conduct with a minor and
molestation of a child who is twelve, thirteen, or fourteen years of
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STATE v. OSBORNE
Decision of the Court
age); -1405(B) (“Sexual conduct with a minor who is under fifteen years of
age is a class 2 felony and is punishable pursuant to § 13-705.”), and -1410
(“Molestation of a child [who is under fifteen years of age] is a class 2 felony
and is punishable pursuant to § 13-705.”). Osborne’s argument and his
reliance on our decision in State v. Samano, 198 Ariz. 506 (App. 2000),
abrogated by 209 Ariz. 220 (App. 2004), are unavailing. See State v. Miranda-
Cabrera, 209 Ariz. 220, 224, ¶ 19 (App. 2004) (recognizing that State v. Sepahi,
206 Ariz. 321 (2003), substantially rejected the reasoning behind Samano).
The statutes Osborne was charged with expressly permit DCAC sentencing
enhancements. State v. Hansen, 215 Ariz. 287, 289, ¶ 7 (2007) (stating a
statute’s language is “the best and most reliable index of a statute’s
meaning” (quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz.
293, 296, ¶ 8 (2007)). Additionally, the Arizona Supreme Court has
repeatedly upheld the validity of the DCAC sentencing enhancements on
molestation of a child and sexual conduct with a minor. See Sepahi, 206 Ariz.
at 324, ¶ 19 (upholding DCAC sentencing enhancements when the
defendant commits one of the statutorily enumerated crimes listed in A.R.S.
§ 13-705 and that his conduct was “focused on, directed against, aimed at,
or target[ed] a victim under the age of fifteen”); State v. Williams, 175 Ariz.
98, 103–04 (1993) (“[T]he question of whether the child victim is the target
of the defendant’s criminal conduct will rarely be an issue given the nature
of the crimes . . . . It is impossible to imagine how . . . molestation, [and]
sexual conduct . . . could be committed without targeting persons.”).
Osborne fails to argue how these offenses were not targeted against the
victim, thus, the DCAC sentencing enhancements were appropriate.
¶9 We grant review but deny relief.
AMY M. WOOD • Clerk of the Court
FILED: AA
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