State v. Roseberry , 2012 Ohio 4115 ( 2012 )

[Cite as State v. Roseberry, 2012-Ohio-4115.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 11 BE 21
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
MARTHA ROSEBERRY )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Belmont County, Ohio
Case No. 09 CR 166
JUDGMENT: Conviction Affirmed. Sentence Vacated.
Remanded.
APPEARANCES:
For Plaintiff-Appellee: Atty. Christopher Berhalter
Belmont County Prosecutor
Atty. Scott Lloyd
Assistant Prosecuting Attorney
147-A West Main Street
St. Clairsville, Ohio 43950
For Defendant-Appellant: Atty. J. Dean Carro
Appellate Review Office
University of Akron
School of Law
Akron, Ohio 44325-2901
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: September 6, 2012
[Cite as State v. Roseberry, 2012-Ohio-4115.]
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
R.C. 2929.191.
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Background
{¶2} On April 25, 2009, Appellant was indicted on three counts of complicity
to rape, R.C. 2907.02(A)(1)(b) and R.C. 2923.03(A)(2), a first degree felony, and
three counts of pandering sexually oriented material involving a minor, R.C.
2907.322(A)(1), a second degree felony. On December 18, 2009, she entered a
guilty plea to one count of complicity to rape and one count of pandering sexually
oriented material involving a minor. The rape count carried a penalty of ten years to
life in prison. The pandering charge had a sentencing range of two to eight years in
prison. On February 5, 2010, the court held a sentencing hearing. Appellant did not
give any statement in mitigation of punishment. Appellant's counsel stated that
Appellant did not remember taking any of the photographs and that she committed
the crimes because her husband would withhold sexual contact with her if she did not
participate in the crimes. The prosecutor indicated that there was no evidence that
Appellant was forced to participate in the crimes and asked for the maximum
sentence to be imposed on both counts, to run consecutively. The presentence
investigation report (PSI) revealed that Appellant had prior misdemeanor offenses,
but no felony convictions. The PSI contained a statement from Appellant that she felt
badly about what she had done, but also revealed that Appellant blamed the victims,
in part, for the crimes. The record indicates that Appellant also blamed her husband
for the crimes, rather than taking responsibility herself.
{¶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
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psychological harm. The court found that Appellant had only begun to show true
remorse for her crimes. (2/5/10 Tr., p. 17.) The court found that Appellant planned
the crimes “to please the sexually deviant desires of her husband and herself,” and
that her relationship to the victims (as the mother of one of the children and the family
friend of another) facilitated the crimes. The court found that Appellant's stated fear
of beatings from her husband was a factor to consider in sentencing. The court
found that Appellant had prior misdemeanor convictions, no juvenile delinquency
adjudications, and had not previously served time in prison. The court sentenced
Appellant to ten years to life in prison on the rape charge and six years in prison for
pandering, to be served consecutively. This appeal timely followed.
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-
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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 R.C. 2929.14(A) based upon a jury verdict or admission of the defendant
without the mandated judicial findings that Blakely prohibits.” Id. at ¶102. Appellant
concedes that the trial judge could have sentenced her to six years in prison if no
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factual findings had been made by the trial judge. (Appellant’s Brf., p. 13.) Based on
the contradictory nature of Appellant's argument, the fact that sentencing discretion
was restored to sentencing judges, and the fact that there is no support in caselaw,
statutes, or any other authority, we must reject Appellant’s argument.
{¶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 R.C. 2929.14(B), this presumption
was held to be unconstitutional and severed from the sentencing statutes as part of
the Foster ruling: “All references to mandatory judicial fact-finding properly may be
eliminated in the four areas of concern. Without the mandatory judicial fact-finding,
there is nothing to suggest a ‘presumptive term.’ ” Id. at ¶96. Foster specifically
severed R.C. 2929.14(B) from the sentencing statutes, and it was this section that
contained the presumption of a minimum sentence for first time felons. Id. at ¶97.
Thus, there is no basis for Appellant’s argument that a presumptive minimum prison
term should have been imposed.
{¶7} R.C. 2929.12 grants the sentencing judge discretion “to determine the
most effective way to comply with the purposes and principles of sentencing.” R.C.
2929.12(B)(2) directs the trial court to consider whether the victim suffered serious
psychological harm as a result of the offense. Foster held that while R.C. 2929.12
does not require judicial factfinding, it does require judicial consideration of the
factors listed in the statute. As such, it does not violate the Sixth Amendment. Id. at
¶42. The trial judge in this case concluded that the young victims suffered serious
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psychological harm. The trial judge correctly considered the factors in R.C.
2929.12(B), found that the “psychological harm” factor applied, and imposed a prison
term within the statutory range. Appellant has not raised any possible constitutional
violation as a result of the trial court's actions, and the first assignment of error is
overruled.
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.
R.C. 2929.12(D)(5) allows the trial court to consider whether “[t]he offender shows no
genuine remorse for the offense.” Lack of genuine remorse is an appropriate
consideration for sentencing, even for a convicted defendant who maintains his or
her innocence. State v. Caver, 8th Dist. No. 91443, 2009-Ohio-1272, ¶122 fn. 11.
Moreover, it is well-settled that credibility is for the trier of fact to determine, and a
reviewing court should give deference to the credibility determinations of the trial
court. Myers v. Garson, 66 Ohio St.3d 610, 614, 614 N.E.2d 742 (1993).
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{¶9} The record reflects that Appellant made no statement and presented no
evidence at the plea hearing or at sentencing. Therefore, there is no direct testimony
from Appellant that could possibly demonstrate her claimed remorse. Further, the
trial court actually found that Appellant “has only begun to demonstrate genuine
remorse,” which indicates that the court did consider that she may have remorse.
(2/5/10 Tr., p. 17.) Appellant's counsel stated at sentencing that she committed the
crimes because her husband refused to have sexual contact with her if she refused.
This is not a statement of remorse. Instead, it is a statement intended to shift the
blame to her husband. Appellant contends that the PSI contains her statement of
remorse. The PSI also reveals that she partially blamed the victims for the crimes.
Any expression of remorse in the PSI appears to show remorse at being caught and
punished for the crimes rather than remorse for having committed the crimes.
Therefore, there was no error in the trial court using lack of remorse as a factor in
sentencing, and the second assignment of error is overruled.
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 R.C. 2967.28(B) to
notify her at sentencing that she was subject to a period of mandatory post-release
control. Appellant contends that she is entitled to resentencing pursuant to R.C.
2929.191, and Appellant is correct, here.
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{¶11} Appellant was convicted of complicity to rape, R.C. 2907.02(A)(1)(b).
This is defined as a first degree felony in R.C. 2907.02(B). Appellant was also
convicted of pandering sexually oriented material involving a minor, R.C.
2907.322(A)(1), a second degree felony.
{¶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 R.C. 2929.191. State v. Singleton, 124 Ohio
St.3d 173, 2009-Ohio-6434, 920 N.E.2d 958, paragraph two of the syllabus; State v.
Pullen, 7th Dist. No. 11 MA 10, 2012-Ohio-1498, ¶15.
{¶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. R.C. 2967.28(B) requires the trial court to notify the
offender of post-release control “for a felony of the first degree, for a felony of the
second degree, [and] for a felony sex offense”. Although Appellant's rape charge
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contained an indeterminate sentence, it is specifically designated as a first degree
felony, and it is also a felony sex offense. Thus, pursuant to R.C. 2967.28(B), notice
of post-release control is required for first degree felony rape offenses, even though
the offender may never be released from prison after being sentenced to an
indeterminate prison term.
{¶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 R.C. 2967.28(B)
requires notice of post-release control for a defendant who receives an indefinite
sentence of life in prison, with the possibility of parole, for a first-degree felony
conviction. The defendant in McCormick was convicted of rape and was sentenced
to ten years to life in prison, similar to the circumstances of Appellant in the instant
appeal. The Supreme Court determined that “[b]ecause R.C. 2967.28(B)(1) is
phrased in broad, sweeping language, we must accord it broad, sweeping
application.” Id. at ¶20. “Although it could be implied from this section that
postrelease control is unnecessary for indefinite or life sentences, there is no specific
language in either this or other provisions that modifies the express language in R.C.
2967.28(B)(1) requiring post-release control.” Id.
{¶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.
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{¶16} Although Appellant did receive an indeterminate sentence of ten years
to life in prison, she was still subject to the requirements of the post-release control
statute. Therefore, the trial court erred in failing to notify Appellant of post-release
control. There is no question that the trial court did not give Appellant notice of post-
release control as required by R.C. 2967.28, and the court explained why it was not
giving such notice. The remedy, when dealing with criminal defendants sentenced
after July 11, 2006, is resentencing pursuant to R.C. 2929.191. This is not a case in
which the defendant was notified of post-release control at the sentencing hearing,
but the notice was omitted from the sentencing judgment entry. Hence, the error
cannot simply be corrected by a nunc pro tunc entry. See State v. Qualls, 131 Ohio
St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718. By law, Appellant is entitled to
resentencing under R.C. 2929.191. This assignment of error is sustained.
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 R.C. 2929.12(B)(2), and the trial court properly considered it during
sentencing. Appellant next argues that she showed some remorse at sentencing,
and that the trial court should not have concluded that she showed no genuine
remorse. The record does not support Appellant's argument. Appellant blamed her
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husband and the victims for the crimes rather than taking responsibility herself, and
certain aspects of the PSI show little, if any, remorse for her crimes. Finally,
Appellant requests a resentencing hearing because the trial court failed to notify her
of post-release control. Appellant is correct, and resentencing should occur pursuant
to R.C. 2929.191. Appellant’s conviction is affirmed. Appellant’s sentence is vacated
and the cause is remanded for the limited purpose of properly imposing post-release
control in accordance with R.C. 2929.191.
Vukovich, J., concurs.
DeGenaro, J., concurs.