{¶ 2} Appellant was indicted on December 16, 2004, on three counts of rape of a child under 13, with a specification carrying a life sentence, and four counts of gross sexual imposition, which were third degree felonies. The charges arose from multiple incidents of sexual conduct and sexual contact with Appellant's two stepdaughters, who were eight and ten years old respectively when the crimes *2 occurred. Appellant was 52 years old when the crimes occurred. The record also indicates that he infected one of the children with a sexually transmitted disease.
{¶ 3} On February 6, 2006, Appellant pleaded guilty to a reduced charge of attempted rape in count one, R.C. §
{¶ 4} On sentencing, the court allowed counts one, four, five and six to run concurrently, but required count seven to be served consecutively for a total prison term of thirteen years. This timely appeal followed on February 17, 2006.
{¶ 6} While this appeal was pending, the Ohio Supreme Court releasedFoster, which held that the felony sentencing provisions of the Revised Code relating to nonminimum (R.C.
{¶ 7} The reason these statutory provisions are unconstitutional is because the
{¶ 8} Appellee argues that Appellant did not raise the
{¶ 9} It is clear that the trial court relied on sentencing provisions which have been declared unconstitutional in order to impose maximum and consecutive sentences on Appellant, and the sentence is hereby vacated and the case remanded for resentencing.
{¶ 11} Appellant contends that the trial court made facetious comments at sentencing about his religious beliefs, and that these comments violated his due process rights. Although this issue is moot because the case is being remanded for resentencing, it merits some consideration because it appears certain to arise again during resentencing.
{¶ 12} R.C. §
{¶ 13} Appellant is correct when he asserts that the sentencing judge should refrain from making facetious comments during sentencing. InTownsend v. Burke (1948),
{¶ 14} In the instant case, the judge did not take into account crimes that were charged but were later dismissed, so Townsend does not appear to apply. Furthermore, there was nothing facetious about the trial judge's comments concerning Appellant's religion or his religion classes, in contrast to the clearly facetious comments inTownsend. In the case sub judice, the trial judge compared Appellant's mitigating evidence with the fact that the sexual assaults were the result of Appellant holding himself out as a religious leader. The trial judge expressed her *7 anger and indignation against what she perceived as preposterous mitigating evidence. While incarcerated, Appellant completed numerous Bible classes, and this could be viewed as a complete lack of remorse and failure to reform because his religious knowledge and authority were tools of his crime. This is how the trial judge seemed to interpret Appellant's mitigation evidence, and it is certainly a legitimate inference. There is nothing in the record that indicates any sense of facetiousness, and thus, no basis for finding a due process error in sentencing arising from facetious remarks. While the remarks were very pointed, and in some lights, very harsh, no error in sentencing occurred which arises solely from these remarks.
{¶ 15} In conclusion, the trial court committed error under State v.Foster by relying on unconstitutional sentencing considerations, and Appellant's sentence is vacated. The case is remanded for resentencing. Based on the resolution of Appellant's first assignment of error, the second assignment of error is rendered moot.
Donofrio, J., concurs.
*1DeGenaro, P.J., concurs.