Chase Osborne v. State

• Court: Court of Appeals of Georgia
• Decided: November 5, 2012
• Docket: A12A1154
• Status: Published

Opinion

THIRD DIVISION MILLER, P. J., RAY and BRANCH, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

November 5, 2012

In the Court of Appeals of Georgia A12A1154. OSBORNE v. THE STATE.

RAY, Judge.

Chase Osborne entered a guilty plea to misdemeanor charges of statutory rape,1

fornication,2 and battery. 3 Prior to sentencing, Osborne requested that the trial court

merge the statutory rape and fornication offenses for the purpose of sentencing. After

the trial court denied his merger request, Osborne proceeded to plead guilty to all

three offenses. The trial court sentenced Osborne under the provisions of the First

Offender Act4 to three consecutive 12-month sentences on probation, with the first

1 OCGA § 16-6-3 (a), (c). 2 OCGA § 16-6-18. 3 OCGA § 16-5-23.1 (a), (c). 4 OCGA § 42-8-60. 12 months to be served on house arrest. On appeal, Osborne contends that the trial

court erred in denying his motion to merge the offense of fornication with the offense

of statutory rape for the purpose of sentencing. Osborne also enumerates as error the

trial court’s decision to impose consecutive sentences for each offense. For the

reasons that follow, we affirm.

The undisputed facts indicate that all of the charges in this case arise from a

single sexual encounter between Osborne, then 17 years of age, and the victim, then

15 years of age. On the date of the incident, Osborne went to the victim’s house to

retrieve a pair of flip-flops. The victim was the only one home at the time. Once

inside the house, Osborne sat down next to the victim and asked her if she wanted to

have sex. When the victim said no, Osborne got on top of her, grabbed her arms, and

had sexual intercourse with her. During this encounter, the victim suffered visible

bruising to her arm.

1. Osborne contends that the trial court erred in failing to merge the fornication

and statutory rape counts for the purpose of sentencing because the facts supporting

the fornication charge were also used to support the statutory rape charge. “Whether

2 two offenses should be merged is a question of law, and we apply a ‘plain legal error’

standard of review.”5

Pretermitting whether the trial court erred in failing to merge the two offenses

for the purpose of sentencing, we find that Osborne waived this issue by proceeding

with his guilty plea after the trial court declined his merger request. At the plea

hearing, the State recommended that Osborne serve “three years, with the first one

year on house arrest as a cap; or that the defendant serve three years, with the first

180 days in jail as a cap.” Osborne acknowledged that he understood the State’s

recommendation, and he chose to enter a guilty plea as to all of the offenses and

requested that the trial court accept the State’s recommendation with regard to house

arrest.

Prior to sentencing, Osborne made an oral motion to merge the offenses of

fornication and statutory rape. The trial court denied the motion. At that point,

Osborne had the absolute right to withdraw his guilty plea.6 Instead, he chose to

5 (Citation omitted.) Herrera v. State, 306 Ga. App. 432, 434 (3) (702 SE2d 731) (2010). 6 OCGA § 17-7-93 (b); State v. Evans, 265 Ga. 332, 336 (3) (454 SE2d 468) (1995).

3 proceed with his guilty plea and requested that the trial court consider imposing a

lesser sentence and smaller fine than that recommended by the State.

As Osborne knowingly and voluntarily pled guilty to each of the crimes for

which he was charged, we find that he waived the issue of whether the offenses of

fornication and statutory rape merged as a matter of law or fact.7

When a criminal defendant pleads guilty to counts of an indictment alleging multiple criminal acts, and willingly and knowingly accepts the specified sentences as to such charged counts, the defendant waives any claim that there was in fact only one act and that the resulting sentences are void on double jeopardy grounds.8

In this case, Osborne chose to proceed with his guilty plea as to all offenses and

requested that the trial court accept the State’s recommendation with regard to house

arrest as an alternative to incarceration. Although Osborne contends that his plea was

non-negotiated, this does not alter our conclusion that he waived his right to argue

that the counts should have merged.9 Because Osborne decided to admit to the

7 Carson v. State, 314 Ga. App. 225, 228-229 (2) (723 SE2d 516) (2012); Regent v. State, 306 Ga. App. 616, 618 (2) (703 SE2d 81) (2010). 8 Carson, supra at 229 (2), citing Regent, supra. 9 Regent, supra at 618 (2).

4 criminal acts in order to avoid trial on the question of his guilt or innocence, he

accepted the benefits of this bargain, as well as the portion of the State’s plea

recommendation with regard to house arrest, and it would be contrary to public policy

and the ends of justice to allow him to avoid the consequences of his plea.10

2. Based on his claim in Division 1 that the fornication and statutory rape

charges should have merged, Osborne contends that the trial court erred in imposing

a three-year sentence for misdemeanor offenses, and that the sentences were

unlawfully consecutive. Based on our holding in Division 1, and for the reasons set

out below, this enumeration fails.

OCGA § 17–10–1 (a) (1) “authorizes the trial court to sentence a defendant to

any amount of time within the limits provided by law.”11 In this instance, given the

ages of Osborne and the victim, the statutory rape offense is a misdemeanor.12 The

fornication13 and battery14 offenses are also misdemeanors. Pursuant to OCGA § 17-

10 Carson, supra. 11 (Citation omitted.) Baldwin v. State, 217 Ga. App. 866, 869 (3) (460 SE2d 80) (1995). 12 OCGA § 16-6-3 (c). 13 OCGA § 16-6-18. 14 OCGA § 16-5-23.1 (c)

5 10-3 (a) (1), each of these offenses have a maximum sentence of 12 months. “There

is no constitutionally cognizable right to concurrent, rather than consecutive,

sentences. Under Georgia law, whether to impose consecutive or concurrent

sentences for multiple offenses is within the trial court’s discretion, so long as the

sentence for each offense is within the statutory limits.”15 As Osborne’s sentence falls

within the statutory ranges for each offense, this enumeration is without merit.

Judgment affirmed. Miller, P. J., and Branch, J., concur.

15 (Citation and punctuation omitted.) Simpson v. State, 310 Ga. App. 63, 64 n. 4 (715 SE2d 675) (2011).