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Osborne v. State

Court of Criminal Appeals of Tennessee, Nashville

June 1, 2018

JAMES ODELL OSBORNE
v.
STATE OF TENNESSEE

          Assigned on Briefs May 16, 2018

          Appeal from the Circuit Court for Marshall County Nos. 2016-CR-73, 2016-CR-74, 2016-CR-75, 2016-CR-76 Forest A. Durard, Jr., Judge

         The Petitioner, James Odell Osborne, appeals the Marshall County Circuit Court's denial of his petition for post-conviction relief from his 2015 convictions for three counts of failure to appear, misdemeanor theft, and felony theft and his effective nine-year sentence. The Petitioner contends that he received the ineffective assistance of counsel. We affirm the judgment of the post-conviction court.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

          Matthew D. Wilson, Spring Hill, Tennessee, for the appellant, James Odell Osborne.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Robert H. Carter, District Attorney General; and Edward Barnard, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert H. Montgomery, Jr., J., delivered the opinion of the court, in which Norma McGee Ogle and Alan E. Glenn, JJ., joined.

          OPINION

          ROBERT H. MONTGOMERY, JR., JUDGE

         On November 18, 2015, a Marshall County Circuit Court jury convicted the Petitioner of failure to appear, and he received a six-year sentence. On the same day, the Petitioner entered "best interest" guilty pleas to two counts of failure to appear, felony theft, and misdemeanor theft, and he received concurrent sentences of three years, three years, and eleven months, twenty-nine days, respectively. Pursuant to the plea agreement, the effective three-year sentence was imposed consecutively to the six-year sentence, for an overall effective nine-year sentence. The Petitioner also waived his right to appeal the jury trial conviction for failure to appear. The trial and the guilty plea hearing transcripts are not included in the appellate record.

         On May 27, 2016, the Petitioner filed the instant petition for post-conviction relief, alleging that he received the ineffective assistance of counsel, that his confession was coerced, that the prosecution failed to disclose favorable evidence, that double jeopardy principles were violated, that inadmissible evidence was used to convict him, and that he had discovered new evidence. The petition sought post-conviction relief relative to his guilty plea convictions for two counts of failure to appear and felony theft and his jury trial conviction for failure to appear. The petition did not seek relief for the misdemeanor theft conviction.

         At the post-conviction hearing, trial counsel testified that he represented the Petitioner on the failure to appear charge that resulted in a guilty verdict after a jury trial. Counsel said that the only defense witness was the Petitioner, who testified that he had been homeless and unable to attend court on the date that formed the basis of the charge. Counsel stated that he and the Petitioner did not discuss witnesses who could substantiate the Petitioner's homelessness but recalled that they discussed a nurse who was "treating" the Petitioner. Counsel said that the Petitioner wanted the nurse to testify about the Petitioner's prescribed medications, that the Petitioner wanted to introduce records from Mental Health Cooperative, Inc., during the nurse's testimony, and that counsel believed the records contained information detrimental to the Petitioner's case. The mental health records were received as an exhibit and showed that the Defendant had been diagnosed with "major depressive disorder, recurrent, severe with psychotic features, " had been prescribed Trazodone, Wellbutrin, and Seroquel, and had reported cocaine use on January 13, 2015.

         Trial counsel testified that he and the Petitioner discussed a possible "temporary insanity" defense. Counsel did not recall, though, whether the Petitioner provided him with medical records. Counsel said that the prosecution presented the bondsman and a court clerk as trial witnesses and that the defense theory was that the Petitioner was homeless and could not "get" to the courthouse.

         Trial counsel testified that although another attorney resolved the charges to which the Petitioner entered best interest guilty pleas, the Petitioner faced more than fifty years' confinement for all of the charges based upon the Petitioner's offender classification. Counsel said that he and the Petitioner discussed the possible outcomes. Counsel said that the Petitioner mentioned having "some [mental health] issues" but that counsel never saw any medical records.

         Defense counsel, the attorney who represented the Petitioner at the guilty plea hearing, testified that he negotiated the plea agreement for the Petitioner's remaining convictions. Counsel recalled that the Petitioner faced a maximum sentence of more than fifty years, that they discussed the details of the plea offer, and that counsel provided the Petitioner with what counsel anticipated the likely sentences would have been after a trial. Counsel said that, pursuant to the plea offer, the Petitioner waived his right to appeal the failure ...


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