State v. RoseberryState v. Roseberry
WAITE, P.J.
{¶1} Appellant Martha Roseberry is appealing the sentence she received after pleading guilty to complicity to rape of a minor under 13 years old and pandering sexually oriented material involving a minor. The court sentenced Appellant to ten years to life in prison on the rape charge and six years in prison on the pandering charge, to be served consecutively. Appellant contends that the trial court engaged in impermissible judicial factfinding when it imposed more than the minimum prison term for the charge of pandering sexually oriented material involving a minor. Appellant relies on State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, and related cases for the proposition that a sentencing judge has no ability to engage in discretionary judicial factfinding. In so doing, Appellant fundamentally misinterprets Foster, which struck down mandatory judicial factfinding, but did not remove the discretion of the trial judge to consider a multitude of factors at sentencing. Appellant further argues that the trial court erred when it concluded that she had no remorse for her crimes, but the record does not support Appellant‘s argument. Finally, Appellant is correct that the trial court failed to give her proper notice of post-release control and that she is entitled to a new sentencing hearing to deal solely with the issue of post-release control. The sentence is vacated and remanded for the purpose of conducting a post-release control hearing pursuant to
{¶2} On April 25, 2009, Appellant was indicted on three counts of complicity to rape,
{¶3} The court found that the injury was exacerbated by the age of the victims, who were under the age of 13 and that victims presumptively suffered
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT ROSEBERRY TO A PRISON TERM BEYOND THE STATUTORY PRESUMPTIVE TERM BASED ON ADDITIONAL FACTS THAT WERE NOT ADMITTED BY APPELLANT ROSEBERRY, NOR FOUND BY A JURY, IN VIOLATION OF APPELLANT ROSEBERRY‘S SIXTH AMENDMENT RIGHT TO HAVE ALL FACTS PROVEN TO A JURY BEYOND A REASONABLE DOUBT.
{¶4} Appellant contends that the trial court was not permitted to make a discretionary finding during sentencing that the victims presumptively suffered serious psychological and emotional harm, and that this finding violates the Sixth Amendment in light of the holdings of State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Appellant is not arguing that the trial court abused its discretion or that the finding was against the weight of the evidence. Appellant is simply arguing that discretionary factfinding at sentencing is unconstitutional.
{¶5} Appellant understands that the constitutional problem in Foster and Blakely was mandatory, rather than discretionary, judicial factfinding. Mandatory judicial factfinding as a prerequisite to imposing a sentence violates the Sixth Amendment when it allows a sentencing judge instead of the jury to determine facts that increase the penalty for a crime beyond the statutory maximum. Foster at ¶53. Appellant also understands that mandatory judicial factfinding has been abandoned in Ohio since Foster, and that the trial court instead used its discretion in determining factors relevant to sentencing. Appellant nevertheless asserts that trial judges are not permitted to engage in any type of judicial factfinding at sentencing, including discretionary factfinding. Appellant acknowledges that her reasoning flies in the face of many rulings of this Court and of every other court in Ohio. See, e.g., State v. Moore, 7th Dist. No. 06 MA 60, 2007-Ohio-1574, ¶9 (“After Foster, a sentencing court has discretion to consider any factors it finds relevant.“). Appellant‘s position also appears to contradict the holding of Foster: “Our remedy does not rewrite the statutes but leaves courts with full discretion to impose a prison term within the basic ranges of
{¶6} Appellant also proposes that the presumptive minimum prison term for first-time offenders should have been imposed in this case. Although there was such a presumptive minimum prior to Foster, found in
{¶7}
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING IN VIOLATION OF
R.C. 2953.08(A)(4) , WHEN THE TRIAL COURT BASED ITS SENTENCE ON A FINDING THAT APPELLANT ROSEBERRY HAD FAILED TO SHOW REMORSE AND HAD FAILED TO ACCEPT RESPONSIBILITY FOR HER ACTIONS, WHEN IN FACT THE PRE-SENTENCE INVESTIGATION REPORT SHOWS APPELLANT ROSEBERRY REGRETTED HER ACTIONS.
{¶8} Appellant here argues that the trial court improperly concluded that she did not show remorse for her crime. Appellant insists that she did show remorse.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN FAILING TO NOTIFY APPELLANT ROSEBERRY OF A MANDATORY POST-RELEASE CONTROL TERM IN VIOLATION OF
R.C. 2967.28(B)(1) .
{¶10} Appellant argues that the trial court was required by
{¶12} When sentencing a felony offender to a term of imprisonment, a trial court is required to notify the offender at the sentencing hearing about post-release control, and the court must incorporate that notice into its sentencing judgment entry. State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, paragraph one of the syllabus. A trial court‘s failure to properly notify a felony offender of post-release control renders the sentence partially void. State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶27-29. For sentences imposed after July 11, 2006, the appropriate remedy in correcting the trial court‘s partially void sentence is to resentence the offender pursuant to
{¶13} Appellant was sentenced on February 8, 2010. She was not notified of post-release control. The trial court stated that it was not required to notify Appellant of post-release control because she received an indeterminate sentence of ten years to life on the complicity to rape conviction. (2/8/10 J.E., p. 5.) The trial court was incorrect as to this statement.
{¶14} In State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124, 2010-Ohio-2671, 931 N.E.2d 110, the Ohio Supreme Court concluded that
{¶15} McCormick also held that notice of post-release control must be given if any one of the sentences imposed is a definite sentence for which notice is required. Id. In addition to rape, Appellant was convicted of a second degree felony sex offense of pandering. This offense, in and of itself, required notice of post-release control as part of the sentence.
CONCLUSION
{¶17} In conclusion, Appellant challenges three aspects of her sentence in this appeal. In Appellant‘s first assignment of error she incorrectly argues that the trial court had no discretion to consider, as a factor in sentencing, whether the victims suffered psychological harm. Foster gave the sentencing court full discretion to consider all relevant factors during sentencing. Psychological harm is mentioned as a factor in
Vukovich, J., concurs.
DeGenaro, J., concurs.