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Wed, Jan. 22

Judge gives Mrs. Roseberry 7 years in prison in murder case

PRESCOTT – A judge Tuesday sentenced Diane Roseberry to seven years in prison for her involvement in the October 2000 shooting death of 45-year-old Fred Fottler.

In addition, Yavapai County Superior Court Judge William Kiger ordered the defendant to pay $265,500 in fines and surcharges.

Kiger said he believes that the aggravating factors outweighed mitigating circumstances in this case. He said it is obvious that her involvement was for monetary gain. In addition, "there is a man dead in this," he said.

Roseberry, 54, faced a maximum prison term of 12.5 years after she pleaded guilty to conspiracy to commit transportation of marijuana for sale, transportation of marijuana for sale and hindering prosecution charges.

She received two seven-year prison sentences on the first two charges and 20 months on the third one. She will serve all of the sentences concurrently, but will receive credit for the 768 days that she has spent in the Yavapai County Jail.

The other two defendants in this case are Roseberry's husband, Homer, and Charles Dvoracek. These two co-defendants allegedly stole 1,300 pounds of marijuana from Fottler.

A motorist found Fottler's body on the side of Highway 93 near Wikieup on Oct. 22, 2000. Court reports indicate that he had three gunshot wounds in the back of his head.

A jury found Homer Roseberry guilty of first-degree murder in late December. Mr. Roseberry is the first Yavapai County defendant to face the death penalty at the hands of a jury rather than a judge, which is a new method of capital sentencing in Arizona.

In February, the Arizona Court of Appeals overruled a decision by Yavapai County Superior Court Judge William Kiger and allowed a continuance of the penalty phase of Mr. Roseberry's first-degree murder trial.

His lawyers, David Stoller and Raymond Hanna, filed a petition for special action, asking the appeals court to grant them a stay so they can collect mitigating evidence and prepare for his sentencing defense.

According to Yavapai County Deputy Attorney Steve Young, since then the Court of Appeals denied the jurisdiction – meaning that the court declined to hear merits of the special action.

He said that the penalty phase for Mr. Roseberry should resume soon. The jury has been under the court's admonition not to discuss or study the case for about three months now.

Meanwhile, Kiger sentenced Dvoracek to a 10-year prison term for his involvement in the case.

Dvoracek will serve three prison sentences concurrently and he will get two years credit for the time he has already spent in jail. Kiger also ordered him to pay $265,500 in fines and surcharges.

Dvoracek and Mrs. Roseberry testified as the state's witnesses in Mr. Roseberry's trial.

During Tuesday's proceeding, Mrs. Roseberry's lawyer, Chester Lockwood, argued that mitigating factors in his client's case are stronger than aggravating factors.

He said that Mrs. Roseberry doesn't have any previous criminal record. He said that her first attorney served her poorly and didn't find out what was really going on. He said his client admits collecting some money from the sale of stolen marijuana.

"But I see nothing to suggest that my client got a large sum of money from this," he said.

In addition, she testified against her husband, which helped the state's case, he said.

Young argued that although Mrs. Roseberry should get a lesser prison sentence than Dvoracek, the aggravating factors outweigh the mitigating circumstances.

"She was intimately involved in transportation of marijuana knowing that Fottler was killed," he said, adding that two months later she decided to leave Mr. Roseberry and went to live with her mother in Indiana.

Mrs. Roseberry also expressed her remorse. "I'm really sorry for everything that I did wrong," she said, thanking her friends and family who came to the hearing to show their support.

After the hearing, Young said that the sentence was appropriate. "Very much so," he said. "Her involvement was not to the extent of Homer and Dvoracek's, but it was appropriate to get an 'aggravating sentence.'"

Lockwood said that he hoped for a presumptive sentence.

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