State v. Gwynne
| Decision Date | 23 December 2022 |
| Docket Number | 2021-1033 |
| Citation | 2022 Ohio 4607 |
| Parties | The State of Ohio, Appellee, v. Gwynne, Appellant. |
| Court | Ohio Supreme Court |
2022-Ohio-4607
The State of Ohio, Appellee,
v.
Gwynne, Appellant.
No. 2021-1033
Supreme Court of Ohio
December 23, 2022
Submitted June 14, 2022
Appeal from the Court of Appeals for Delaware County, No. 16 CAA12 0056, 2021-Ohio-2378.
Melissa Schiffel, Delaware County Prosecuting Attorney, and Mark C. Sleeper, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Craig Jaquith, Assistant Public Defender, for appellant.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Diane R. Brey, Deputy Solicitor General, urging affirmance for amicus curiae Ohio Attorney General Dave Yost.
Rion, Rion & Rion, L.P.A., Inc., Catherine H. Breault, and Jon Paul Rion, in support of appellant for amicus curiae Rion, Rion & Rion, L.P.A., Inc.
Stewart, J.
{¶ 1} In this discretionary appeal from a judgment of the Fifth District Court of Appeals, we are asked to determine whether appellant Susan Gwynne's 65-year aggregate sentence for numerous nonviolent felonies violates Ohio's consecutive-sentencing statute, R.C. 2929.14(C)(4), or the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution. Before we begin, however, we must decide (1) whether trial courts must consider the overall aggregate prison term to be imposed when making the consecutive-sentence findings under R.C. 2929.14(C)(4) and (2) what the scope of an appellate court's authority is under R.C. 2953.08(G)(2) to review consecutive sentences. We hold that based on the language of R.C. 2929.14(C)(4), the consecutive-sentence findings are not simply threshold findings that, once made, permit any amount of consecutively stacked individual sentences. Rather, these findings must be made in consideration of the aggregate term to be imposed. Additionally, we hold that appellate review of consecutive sentences under R.C. 2953.08(G)(2) does not require appellate courts to defer to the sentencing court's findings in any manner. Instead, the plain language of the statute requires appellate courts to review the record de novo and decide whether the record clearly and convincingly does not support the consecutive-sentence findings.
{¶ 2} Because the Fifth District did not have the benefit of this court's clarification on how R.C. 2929.14(C)(4) and R.C. 2953.08(G)(2) are to be applied, we reverse the Fifth District's judgment affirming Gwynne's 65-year sentence and remand this case to the appellate court so that it may consider whether the record in this case clearly and convincingly does not support the consecutive-sentencing findings under R.C. 2929.14(C)(4) as they pertain to the sentencing court's order of consecutive sentences on each count. We dismiss Gwynne's second proposition of law concerning her Eighth Amendment claim as having been improvidently accepted.
Facts and Procedural History
{¶ 3} This is the second time this case is before us on appeal. The underlying facts of the case are detailed at length in our first decision, but will be summarized below.
{¶ 4} For approximately eight years, Gwynne-either in her position as a nurse's aide or while posing as one-stole items of sentimental and monetary value from elderly residents of nursing homes and assisted-living facilities. Gwynne was indicted on 86 felony counts-31 counts of second-degree burglary, 4 counts of third-degree theft, 12 counts of fourth-degree theft, 27 counts of fifth-degree theft, and 12 counts of fifth-degree possessing criminal tools. Gwynne was also charged with 15 first-degree-misdemeanor counts of receiving stolen property.
{¶ 5} After negotiations with the state, Gwynne elected to enter pleas of guilty to 17 counts of second-degree burglary, 4 counts of third-degree theft, 10 counts of fourth-degree theft, and the 15 misdemeanor counts of receiving stolen property. In exchange for Gwynne's guilty pleas, the state dismissed the remaining 55 counts and recommended that a presentence-investigation report be completed before Gwynne's sentencing hearing. At sentencing, the court imposed the following terms of imprisonment: three years for each of second-degree-burglary offenses, 12 months for each of the fourth-degree-theft offenses, and 180 days for each of the misdemeanor receiving-stolen-property offenses. The court made the findings required under R.C. 2929.14(C)(4) for imposing consecutive sentences and ordered the felony sentences to be served consecutively, making Gwynne's aggregate sentence 65 years.
{¶ 6} Gwynne appealed to the Fifth District Court of Appeals and argued that (1) the trial court's findings under R.C. 2929.14(C)(4) were erroneous and not supported by the record and (2) her 65-year sentence violated the Eighth Amendment's prohibition against cruel and unusual punishments. The Fifth District reversed the trial court's judgment. State v. Gwynne, 5th Dist. Delaware
No. 16-CAA-12 0056, 2017-Ohio-7570 ("Gwynne I "). In doing so, the court of appeals found that although Gwynne's conduct was serious, the 65-year sentence did not comport with the purposes and principles of felony sentencing as set forth in R.C. 2929.11 and 2929.12 and was plainly excessive and shocking for a nonviolent, first-time offender. Gwynne I at ¶ 22-30. Nevertheless, the appellate court still agreed that some consecutive sentences were warranted. Id. at ¶ 31. Therefore, it modified Gwynne's felony sentences and imposed an aggregate sentence of 15 years, rendering Gwynne's Eighth Amendment claim moot. Id. at ¶ 33-38.
{¶ 7} We accepted the state's jurisdictional appeal and reversed the Fifth District's judgment. See State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169 (“Gwynne II”). A majority of the justices of this court agreed that R.C. 2953.08(G)(2) does not allow an appellate court to reverse or modify a defendant's consecutive sentences using the principles and purposes of felony sentencing as set forth in R.C. 2929.11(A) and (B) and the seriousness and recidivism factors in R.C. 2929.12. Gwynne II at ¶ 13-18 (lead opinion); id. at ¶ 31-43 (Kennedy, J., concurring in judgment only).[1] We thus reversed the Fifth District's judgment and remanded the case to the court of appeals to consider Gwynne's consecutive-sentencing challenge using the standard of review set forth under R.C. 2953.08(G)(2), which permits reversal or modification of consecutive sentences if the reviewing court clearly and convincingly finds that the record does not support the sentencing court's R.C. 2929.14(C)(4) findings. Gwynne II at ¶ 20 (lead opinion).
{¶ 8} On remand, the Fifth District stated again that while consecutive sentences were appropriate and that the findings made by the trial court before imposing consecutive sentences were appropriate, it still disagreed with the number of consecutive sentences that the trial court imposed. 2021-Ohio-2378, 173 N.E.3d 603, ¶ 19-25 ("Gwynne III "). Indeed, it stated that the trial court's imposition of a 65-year sentence was "wholly excessive * * * for a non-violent first time felony offender." Id. at ¶ 25. In the end, however, the Fifth District reluctantly upheld the 65-year sentence after concluding that "no authority exists for this court to vacate some, but not all of Gwynne's consecutive sentences." Id. The Fifth District also rejected Gwynne's Eighth Amendment claim. Id. at ¶ 27-31. Quoting this court's decision in State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 23, the Fifth District explained that" '[b]ecause the individual sentences imposed by the court are within the range of penalties authorized by the legislature, they are not grossly disproportionate or shocking to a reasonable person or to the community's sense of justice and do not constitute cruel and unusual punishment.'" Gwynne III at ¶ 30.
{¶ 9} Gwynne appealed, and this court accepted review over the following two propositions of law:
1. A trial court errs when it sentences a defendant to consecutive terms of imprisonment, when such a sentence is clearly and convincingly not supported by the record.
2. A sentence that shocks the conscience violates the Eighth Amendment's prohibition against cruel and unusual punishment, and is thus contrary to law.
See 165 Ohio St.3d 1449, 2021-Ohio-3908, 175 N.E.3d 1286.
Analysis
{¶ 10} When a person is sentenced for having committed multiple offenses, the presumption is that those sentences will be imposed concurrently, not consecutively. See R.C. 2929.41(A). This is the general rule of law decreed by our state legislature. See id; see also State v. Polus, 145 Ohio St.3d 266, 2016-Ohio-655, 48 N.E.3d 553, ¶ 10. There are, however, exceptions. At issue here is the exception under R.C. 2929.14(C)(4). See Polus at ¶ 10 ("[t]he first sentence of R.C. 2929.41(A) enacts the general rule requiring concurrent sentencing with only clearly delineated exceptions"); State v. Hitchcock, 157 Ohio St.3d 215, 2019-Ohio-3246, 134 N.E.3d 164, ¶ 21 ("[t]he general principle set forth in the Revised Code is that concurrent sentences are the default and consecutive sentences are the exception"). For the exception under R.C. 2929.14(C)(4) to apply and before the court imposes consecutive sentences, it must make specific findings which are delineated in the statute. Specifically, the trial court must find that "the consecutive service is necessary to protect the public from future crime or to punish the offender." Id. It must also find that "consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public." Id. Finally, the court must find at least one of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under...
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