[Cite as State v. Roseberry,

.] 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,

.] 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,

,

,

, 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. -2-

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 -3-

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,

, 2006-Ohio- -4-

856,

, and Blakely v. Washington,

,

,

(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,

(“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 -5-

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 -6-

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,

, ¶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,

,

(1993). -7-

{¶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. -8-

{¶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,

,

,

, 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,

,

,

, ¶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,

,

,

, paragraph two of the syllabus; State v.

Pullen, 7th Dist. No. 11 MA 10,

.

{¶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 -9-

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,

, 2010-Ohio-

2671,

, 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. -10-

{¶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,

,

,

. 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 -11-

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.