State v. Gwynne
| Citation | 173 N.E.3d 603 |
| Decision Date | 09 July 2021 |
| Docket Number | No. 16 CAA12 0056,16 CAA12 0056 |
| Court | United States Court of Appeals (Ohio) |
| Parties | STATE of Ohio, Plaintiff-Appellee v. Susan GWYNNE, Defendant-Appellant |
MELISSA SCHIFFEL, MARK SLEEPER, 145 North Union Street, 3rd Floor, Delaware, OH 43015, For Plaintiff-Appellee.
CRAIG M. JAQUITH, 250 East Broad Street, Suite 1400, Columbus, OH 43215, For Defendant-Appellant.
RUSSEL S. BENSING, 600 IMG Building, 1360 East Ninth Street, Cleveland, OH 44114, For Amicus Curiae O.A.C.D.L.
{¶ 1} This matter is before us on remand from the Supreme Court of Ohio, which in a plurality opinion, reversed our decision in State v. Gwynne , 5th Dist. No. 16 CAA 12 0056, 2017-Ohio-7570, 2017 WL 4005133 (hereinafter " Gwynne I "). The Supreme Court has directed us to address Gwynne's 65-year sentence for compliance with R.C. 2929.14(C)(4).
{¶ 2} On June 15, 2016, Gwynne was charged by indictment with 31 counts of burglary in violation of R.C. 2911.12(A)(2), 43 counts of theft in violation of 2913.02(A)(1), 15 counts of receiving stolen property in violation of R.C. 2913.51(A), and 12 counts of possessing criminal tools in violation of R.C 2923.24(A). The charges spanned a time period from 2008 to 2016.
{¶ 3} Gwynne stole items from nursing home residents in Delaware and Franklin counties while working as a nurse's aide, and even after she was fired from that position, pretending to be an aide to gain access to nursing homes. A search warrant executed at her home resulted in the discovery of seven large storage bins and a dresser filled with stolen property – more than 3,000 items. These items included trinkets, jewelry, credit cards, dog tags, military medals, family photos, baby bracelets, and other mementoes. Detectives were able to link these items to 46 victims and 12 nursing homes.
{¶ 4} Gwynne entered into a written plea agreement in which she agreed to plead 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 the state dismissing the remaining 55 counts. She further agreed to pay restitution.
{¶ 5} At the sentencing hearing held on November 7, 2016, the trial court indicated it had reviewed the PSI, sentencing memoranda from the state and appellant, as well as the victim impact statements. The state recommended 42 years incarceration. Counsel for appellant advocated for intensive supervision community control, and a period of time in a community based correctional facility.
{¶ 6} Departing from either of these recommendations, the trial court imposed a sentence of three years for each of the 15 second degree felony burglaries, 12 months for each of the third degree felony thefts, 12 months for each of the fourth degree felony thefts, and 180 days for each first degree misdemeanor receiving stolen property. The court ordered appellant to serve the felony sentences consecutively, and the misdemeanor sentences concurrently for an aggregate total of 65 years incarceration.
{¶ 7} Gwynne appealed to this court arguing the trial court had failed to properly consider the seriousness and recidivism factors contained in R.C. 2929.11 and 2929.12 in fashioning her 65-year sentence. We agreed the record did not support the trial court's sentence under R.C. 2929.11 and 2929.12. Gwynne I , ¶ 17. While we found consecutive sentences appropriate, we nonetheless found a sentence of 65 years for non-violent theft offenses imposed upon a first time felon was unsupported by the record and shocked the conscience. Id. ¶ 30. We therefore modified Gwynne's sentence to an aggregate total of 15 years.
{¶ 8} Gwynne's discretionary appeal was accepted by the Supreme Court of Ohio. State v. Gwynne , 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169. The lead opinion found our analysis erroneously relied upon its opinion in State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, and that R.C. 2929.11, and 2929.12 had no application in the review of consecutive sentences. The court therefore reversed our judgment and remanded the matter "* * * with instructions to consider Gwynne's assignment of error on consecutive sentences using the standard of review set forth under R.C. 2953.08(G)(2)." Id. ¶ 20.
{¶ 9} On remand, we granted leave for supplemental briefing in light of the Supreme Court's opinion. Gwynne, amicus curiae Ohio Association of Defense Lawyers in support of Gwynne, and the state each filed supplemental briefs. Gwynne and amicus filed replies to the state's supplemental brief. Gwynne now raises four assignments of error for our consideration as follow:
I
{¶ 10}
II
{¶ 11} "THE TRIAL COURT ERRED BY IMPOSING A 65-YEAR SENTENCE IN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION'S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT (NOV. 23, 2016, AMENDED JUDGMENT ENTRY ON SENTENCE.)"
III
{¶ 12}
IV
{¶ 13}
{¶ 14} In her first assignment of error, Gwynne argues the trial court erred by imposing consecutive sentences when none of the offenses involved a weapon, actual or threatened physical harm, nor great financial harm.
{¶ 15} R.C. 2953.08 governs appeals based on felony sentencing guidelines. Subsection (G)(2) sets forth this court's standard of review as follows:
{¶ 16} "Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 17} R.C. 2929.14(C)(4) governs consecutive sentencing and states the following:
{¶ 18} In State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus, the Supreme Court of Ohio held: "In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing entry, but it has no obligation to state reasons to support its findings."
{¶ 19} We have previously found consecutive sentences were appropriate and that the trial court made the appropriate findings before imposing Gwynne's consecutive sentences. Gwynne I ¶ 31. We disagreed, however, with the number of consecutive sentences imposed by the trial court.
{¶ 20} Amicus, citing State v. Wallace , 121 Ohio App.3d 494, 499, 700 N.E.2d 367 (10th Dist. 1997), argues we are not bound by that determination because law of the case has no application where there has been an intervening decision of a superior court. This court discussed the doctrine of law of the case in Pillo v. Stricklin , 5th Dist. Stark No., 2004-Ohio-1570, 2004 WL 615754, ¶ 23-24 :
To continue reading
Request your trial
-
State v. Delvallie
... ... 755, 755 (2019). Many inmates serving these definite terms were subjected to consecutive sentences with no option for parole, resulting in what amounted to de facto life terms. See State v. Gwynne , 5th Dist., 2021-Ohio-2378, 173 N.E.3d 603. There has been a slow recognition that the felony sentencing scheme under S.B. 2 has become not only more complex, but also more costly driving up the prison population with no mechanisms to assess inmates reformative conduct. Siegel, Reagan Tokes Act ... ...
- State v. Gwynne
-
State v. Morrissey
... ... Hardie , 171 Ohio App.3d 429, 2007-Ohio-2755, 870 N.E.2d 1231, 14 (4th Dist.), quoting Nolan at 3, 462 N.E.2d 410. Accordingly, "[a]n appellate court may choose to reexamine the law of the case it has itself previously created if that is the only means to avoid injustice." State v. Gwynne , 2021-Ohio-2378, 173 N.E.3d 603, 20 (5th Dist.). However, "[b]ased on these principles, courts have barred defendants from raising allied offenses of similar import issues in subsequent appeals after having raised them in previous appeals." Snyder, supra , at 51, citing State v. Cottrill , 4th ... ...
-
State v. Taylor
... ... calculating the proper sentence under the Reagan Tokes Law, ... and we agree. However, the trial court did not err in ... imposing consecutive sentences, which originally resulted in ... a 94.5-year maximum prison term. Under State v ... Gwynne, Ohio Slip Opinion No. 2022-Ohio-4607, N.E.3d _, ... a trial court must consider each sentence on individual ... counts that it intends to impose consecutively on the ... defendant and the aggregate prison term that will result ... Nonetheless, we are unable to reach a firm conviction or ... ...