State v. Gwynne

• Decision Date: 21 November 2019
• Docket Number: No. 2017-1506,2017-1506
• Parties: The STATE of Ohio, Appellant, v. GWYNNE, Appellee.
• Court: Ohio Supreme Court

158 Ohio St.3d 279

141 N.E.3d 169

2019 Ohio 4761

The STATE of Ohio, Appellant,

v.GWYNNE, Appellee.

No. 2017-1506

Supreme Court of Ohio.

Submitted January 8, 2019

Decided November 21, 2019

Carol Hamilton O'Brien, Delaware County Prosecuting Attorney, and Douglas N. Dumolt, Assistant Prosecuting Attorney, for appellant.

David H. Birch, Delaware, for appellee.

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Christopher D. Schroeder, Assistant Prosecuting Attorney, urging reversal for amicus curiae Cuyahoga County Prosecutor's Office.

Zach Klein, Columbus City Attorney, and Lara N. Baker-Morrish, Solicitor General, Columbus Department of Law, urging reversal for amicus curiae Columbus City Attorney Zach Klein.

Russell S. Bensing, Cleveland, urging affirmance for amicus curiae Ohio Association of Criminal Defense Lawyers.

Stewart, J. {¶ 1} In this discretionary appeal from a judgment of the Fifth District Court of Appeals, we consider two propositions of law offered by appellant, the state of Ohio, related to the scope of appellate sentencing review. One proposition of law asks us to determine whether a court of appeals loses jurisdiction over a case for purposes of addressing the merits of an appeal when a defendant knowingly, voluntarily, and intelligently waives her right to appeal. The other proposition of law asks us to determine whether the appellate criminal-review statute, R.C. 2953.08(G)(2), permits an appellate court to review a sentencing court's findings under R.C. 2929.11 and 2929.12 consistent with State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231.

{¶ 2} We conclude that the state forfeits its right to argue that a court of appeals is barred from reviewing a sentencing appeal when the state does not timely invoke a defendant's appeal waiver. We also conclude that Marcum has no application to consecutive-sentencing cases that are governed by R.C. 2953.08(G)(2). Accordingly, we reverse the Fifth District's judgment and remand this cause to that court to consider appellee Susan Gwynne's assignment of error on consecutive sentences using the correct analysis.

I. PROCEDURAL HISTORY

{¶ 3} Over the course of approximately eight years, Gwynne stole thousands of items of jewelry and personal memorabilia from 46 identified residents of 12 nursing homes and assisted-living facilities while she was employed as (or while pretending to be employed as) a nurse's aide.

{¶ 4} A grand jury returned an indictment charging Gwynne with 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. The grand jury also charged Gwynne with 15 first-degree-misdemeanor counts of receiving stolen property.

{¶ 5} 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 other 55 counts. She agreed to pay restitution and waived her right to appeal "including, but not limited to the grounds listed in [R.C.] 2953.08." Delaware C.P. No. 16CR-I-06-0271 (Sept. 23, 2016). The trial court imposed prison terms of three years for each of the second-degree-burglary convictions, 12 months for each of the third-degree-theft convictions, 12 months for each of the fourth-degree-theft convictions, and 180 days for each of the misdemeanor receiving-stolen-property convictions. The court then ordered Gwynne to serve the felony sentences consecutively, for an aggregate sentence of 65 years.

{¶ 6} Gwynne appealed to the Fifth District Court of Appeals and argued that the trial court erred by imposing a sentence that was contrary to Ohio's sentencing statutes and that her aggregate 65-year sentence amounted to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The court of appeals determined that the sentencing court considered the applicable sentencing statutes and made all the required statutory findings. 2017-Ohio-7570, 2017 WL 4005133, ¶ 12. Nevertheless, the court of appeals analyzed Gwynne's 65-year aggregate sentence under R.C. 2929.11 and 2929.12 and determined that the aggregate sentence was not supported by the record and did not comply with the purposes and principles of felony sentencing. Characterizing the aggregate prison term as a "life sentence" for the then 55-year-old Gwynne, id. at ¶ 29, the court of appeals found that the aggregate sentence was excessive and "disproportionate to the conduct and the impact on any and all of the victims either individually or collectively," id. at ¶ 30. The court of appeals agreed, however, with "the trial court's findings relating to the necessity of a prison sentence, and that consecutive sentences [we]re warranted." Id. at ¶ 31. It vacated some of Gwynne's consecutive sentences, resulting in a new aggregate sentence of 15 years and rendering Gwynne's second assignment of error moot.

II. ANALYSIS

A. Forfeiture

{¶ 7} Although Gwynne agreed to plead guilty and to waive her right to appeal, "including, but not limited to the grounds listed in [R.C.] 2953.08," the state did not ask the court of appeals to dismiss Gwynne's direct appeal on that basis, nor did it mention this aspect of the plea agreement in its merit brief filed in the court of appeals. The court of appeals raised the issue on its own, stating: "Because there was no agreement as to sentence in this matter, we find [that Gwynne] has not waived her right to appeal her sentence." 2017-Ohio-7570, 2017 WL 4005133, at ¶ 9, fn. 1. The state maintains that because Gwynne's waiver of her right to appeal deprived the court of appeals of subject-matter jurisdiction, the Fifth District's judgment is void.

{¶ 8} The parties to a plea agreement may neither waive nor confer subject-matter jurisdiction on a court of appeals. A court of appeals

shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district, except that courts of appeals shall not have jurisdiction to review on direct appeal a judgment that imposes a sentence of death.

Ohio Constitution, Article IV, Section 3 (B)(2); see also In re M.M. , 135 Ohio St.3d 375, 2013-Ohio-1495, 987 N.E.2d 652, ¶ 21.

{¶ 9} R.C. 2953.08(A) grants a court of appeals subject-matter jurisdiction to hear a defendant's appeal of a felony sentence as a matter of right. Only the legislature may grant or divest the court of appeals of that jurisdiction,¹ so the Fifth District's subject-matter jurisdiction to consider Gwynne's sentence was unaffected by the terms of the plea bargain.

{¶ 10} The state forfeited its argument that Gwynne should be held to the terms of the plea bargain, because it failed to bring that issue to the attention of the court of appeals. An argument is forfeited when it is not timely asserted. State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21. The purpose of the forfeiture rule is to encourage parties to call the court's attention to an error at a time when the error can be " ‘avoided or corrected.’ " State v. Awan , 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v. Childs , 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. The forfeiture rule is thus one that fosters judicial economy. See State v. Perry , 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 23.

{¶ 11} The appellate rule of forfeiture applies to any party claiming error, including the state. See State v. Jones , 7th Dist. Mahoning No. 10 MA 118, 2011-Ohio-3404, 2011 WL 2671581, ¶ 23. Had the state filed in the court of appeals a motion to dismiss Gwynne's appeal before briefing commenced, a favorable ruling on the motion (and we express no opinion on the merits of such a motion) would have prevented the appeal from going forward, thus promoting judicial economy.

{¶ 12} We also reject the state's assertion that the court of appeals should have enforced Gwynne's appeal waiver on its own initiative. The duty to advocate for enforcing rights arising under the plea agreement belongs to the state; it was not incumbent on the court of appeals to raise the issue. Accordingly, we will not consider whether Gwynne waived her right to appeal.

B. Sentencing

{¶ 13} The substantive sentencing issue raised by the state is whether the court of appeals should have reviewed Gwynne's consecutive sentences based on the principles and purposes of felony sentencing set forth in R.C. 2929.11 and 2929.12.

{¶ 14} The court of appeals reviewed Gwynne's sentence under R.C. 2929.11 and 2929.12 based on its reading of this court's decision in Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23, in which we stated:

We note that some sentences do not require the findings that R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.

See 2017-Ohio-7570, 2017 WL 4005133, at ¶ 19-20.

{¶ 15} Paragraph 23 of Marcum has no application to this case. Marcum involved a challenge to the length of a nonmaximum sentence for a single count. Marcum at ¶ 4. Gwynne did not challenge the length of any of her felony sentences—none of which were maximum terms—that she received for the individual counts. Nor did Gwynne argue that her consecutive sentences were "contrary to law," because, as the...