THE STATE OF OHIO, APPELLANT, v. GLOVER, APPELLEE.
No. 2023-0654
SUPREME COURT OF OHIO
Submitted February 7, 2024—Decided November 1, 2024
Slip Opinion No. 2024-Ohio-5195
DEWINE, J.
APPEAL from the Court of Appeals for Hamilton County, No. C-220088, 2023-Ohio-1153.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
Criminal law—Sentencing—
DEWINE, J., announced the judgment of the court and authored the opinion of the court with respect to the analysis and disposition of the State‘s second proposition of law, which KENNEDY, C.J., and DETERS, J., joined. FISCHER, J., concurred in the judgment and concurred in part, with an opinion. STEWART, J., dissented, with an opinion joined by DONNELLY and BRUNNER, JJ.
{1} This case concerns an appellate court‘s review of a trial court‘s imposition of consecutive sentences. Tommy Glover committed a series of armed robberies and kidnappings that resulted in his convictions for 11 first-degree felonies along with six gun specifications. The trial court chose to impose consecutive sentences for some of the offenses and specifications and concurrent sentences for others, resulting in an aggregate term of 60 years of incarceration—out of a possible 139 years. The First District Court of Appeals reversed the sentences, finding that the aggregate sentence was “disproportionate to Glover‘s criminal history, [the] danger he posed to the public, and [his] offenses.” 2023-Ohio-1153, ¶ 102, 108 (1st Dist.). It then modified Glover‘s sentences to run all his felony-conviction sentences concurrently, resulting in a single seven-year term. Id. With the addition of the six three-year sentences for the gun specifications (which were not challenged on appeal), Glover‘s new, reduced aggregate sentence amounted to 25 years. Id. at ¶ 106.
{2} The State complains that the court of appeals improperly substituted its judgment for the trial court‘s, misread the record, and relied on factors that are not part of the statutory scheme. We agree with the State that the appellate court erred when it vacated and modified the sentence. Under
{3} In May and June of 2020, Glover went on a crime spree, terrorizing the communities of St. Bernard and Norwood. The trial court found Glover guilty of six counts of aggravated robbery in violation of
A. Victim 1—Andrew
{4} In late May 2020, at about 1:00 a.m., Andrew was walking in his neighborhood, trying to get some exercise while it was cool out. Suddenly, two men wearing black hoodies approached. One of the men, Glover, asked for directions to Reading Road and then pulled a gun. While Glover held Andrew at gunpoint, his partner searched Andrew and rifled through his wallet. The two men then directed Andrew to his car and forced him into the driver‘s seat.
{5} Glover made Andrew drive to a nearby bank drive-through ATM, where he held a gun to Andrew‘s head as they waited for a car in front of them to depart. At Glover‘s insistence, Andrew withdrew $1,300 from the machine in three increments. Next, Glover required Andrew to drive to another bank. When they arrived, Glover pointed the gun at Andrew as they walked to the ATM. But Andrew could not withdraw any more money because he had reached his daily limit. Andrew later recounted that he “really thought [he] was going to be killed” when he could not obtain any more cash.
{6} Glover and his partner then forced Andrew to drive around in neighborhoods that were unfamiliar to him. Glover made Andrew speed and run red lights, warning him that he “would blow [his] brains out” if he refused. Finally, at a stop sign on Cincinnati‘s west side, Glover and his accomplice got out of the
{7} A few weeks later, as Andrew was getting into his car outside of his apartment, Glover jumped him again. He drew his gun and demanded that Andrew drive to a bank in St. Bernard. This time, Glover was wearing a black “COVID mask,” and he did not have an accomplice with him. But just like before, Glover forced Andrew, at gunpoint, to make withdrawals from an ATM until he reached his $1,300 limit. Glover then made Andrew drive around for 20 to 25 minutes before getting out of the car.
{8} Understandably, the robbery-kidnappings inflicted severe emotional trauma on Andrew. He moved back in with his father because he was afraid to be alone or leave his house and because he “couldn‘t sleep.” He spent nearly $600 dollars to have his car painted out of fear that Glover would target him again. Andrew said that he “will always carry some emotional scars from these events.”
B. Victim 2—Janet
{9} Several days after Andrew‘s kidnapping, Janet was walking to her car after finishing her shift as a home healthcare aide. As she inserted her key into the ignition, her front and back passenger-side doors suddenly opened. Glover pointed a gun at her and told her to hand over all her money, causing Janet to think, “Oh My God, I‘m dead.” Glover climbed into the front passenger seat, while his accomplice who had opened the back door, remained outside the car. Glover told Janet to give him all her money and went through her purse and wallet. Begging for her life, Janet said that she did not have any money. After taking $10 or $15 from Janet‘s wallet, Glover demanded more money and ordered her to drive to an ATM. “[S]cared to death,” Janet again begged for her life telling Glover that she did not have even $20 to withdraw. Nonetheless, Glover then ordered Janet to begin driving toward an ATM while he continued to display his gun. After several minutes, however, he directed her to stop the vehicle. As Glover got out of her car,
{10} Janet testified that since the crime, whenever she wants to go somewhere, she asks “somebody to go with [her], or [she] won‘t go at all.” In her victim-impact statement, she explained that the incident so severely traumatized her that she “won‘t go out in the dark,” always calls someone on her way home from work, and carries a taser. Janet stated that “[Glover] put fear in my life that I can‘t get rid of. I get sick to my stomach.” She constantly thinks of Glover “demanding she drive somewhere, only to shoot her and leave her for dead.” She requested that Glover receive the maximum sentence.
C. Victims 3, 4, and 5—Robert, Maya, and Jacob
{11} At about 1:00 a.m. in late June 2020, Robert went to retrieve something from his car, a blue Chevrolet Aveo, which was parked by his apartment near Xavier University in Norwood. As Robert was walking back to his building, Glover and an accomplice approached him. They flashed their guns and threatened to shoot him if he did not give them money. Robert told his assailants that he did not have money and that his bank card would be of no use to them because his account was already overdrawn. So, they took his phone, keys, and car instead. Robert returned to his apartment and had his girlfriend call the police.
{12} Just a block away from Robert‘s apartment, two Xavier University nursing students, Maya and Jacob, had plans to enjoy pizza and a movie at Jacob‘s house. Jacob had just parked his roommate‘s SUV near his home. He and Maya exited the SUV and began to walk toward Jacob‘s house when they noticed a blue Aveo in the middle of the road. Glover and an accomplice approached Maya and Jacob, demanding money. Glover had a gun and was wearing a fanny pack and an evil-clown mask. Jacob and Maya said they did not have any cash but offered their belongings and credit cards instead. Glover and his partner instructed them to get
{13} First, they drove to an ATM at Xavier University Station. Glover handed the gun to his accomplice and told him to stay in the vehicle with Maya and to shoot her if she did anything. Jacob then exited the SUV and approached the ATM while Glover accompanied him. Jacob withdrew the maximum amount he could—around $400. When they got back to the SUV, the accomplice returned the gun to Glover. Glover told Jacob to drive to an ATM near the University of Cincinnati. Again, Glover passed the gun to his partner and forced Jacob to withdraw his limit from the ATM.
{14} They then went to a third ATM where the men again forced Jacob to withdraw his limit from the ATM. They also tried to withdraw money from Maya‘s account, but they were unable to do so because her cellphone was off and she was unable to respond to the authorization message from her bank. As they drove away, one of the men threw Robert‘s phone out the window.
{15} After the third ATM, Jacob explained that he had reached his daily withdrawal limit but offered Glover a $1,500 prepaid credit card that Xavier University had given to students. Glover rejected the offer and grew frustrated with the situation.
{16} Glover forced Jacob to keep driving. As they drove around, Glover and his partner joked about robbing Robert and how they had taken his phone and his car. “The scariest part” of the ordeal according to Jacob, was when they forced him to drive down an unfamiliar alley. Eventually, Glover made Jacob drive down a dead-end street in the area of St. Bernard and Avondale. There, Glover took Jacob‘s and Maya‘s phones and placed them in the trunk, and he and his accomplice got out of the vehicle, allowing Jacob and Maya to drive away.
{17} Since the crime, Robert no longer goes outside to take walks around his building. Maya had struggled with anxiety even before the incident, but she
D. The sentencing hearing
{18} At the sentencing hearing, Glover initially declined the opportunity to say anything to the court. The assistant prosecutor emphasized the severity of the separate crimes, and she noted that Glover had not accepted responsibility for his actions. In response to defense counsel‘s statement that the State had initially offered a 15-year plea deal, she explained that the State no longer considered such a sentence appropriate. That offer, she said, was a “gift,” made “to save these people from coming in and having to relive what happened to them, having to see the defendant in Court.” The assistant prosecutor also pointed out the severe emotional harm that had been inflicted on the victims, particularly Andrew who had been victimized twice and was “a little developmentally delayed.” She told the judge that the victims were in favor of anywhere from 20 years to the maximum prison term, and she would defer to their recommendations.
{19} The two investigating officers also spoke at sentencing. Sergeant Klingelhoffer recounted that he had been an officer in Norwood for 11 years and that Glover‘s conduct was “essentially one of the worst crimes” he had ever had to investigate and something that he would “remember for the duration of [his] career.” It was a “terrible summer,” he added. Detective Ingram told the court that he had been an officer in St. Bernard for 22 years and “[t]his will be embedded in my memory just as the victims.” He emphasized that Andrew was “developmentally delayed” and had been “victimized twice” and that Glover had
{20} After the officers had spoken, the court offered Glover a second opportunity to speak. Glover responded, “Reasonable doubt that I did these crimes,” and then declined to say anything further. When the court summarized how serious the offenses were, it noted that Glover was rolling his eyes.
{21} The court indicated at the sentencing hearing that it had considered the presentence-investigation report and the victim-impact statements. The presentence-investigation report showed that Glover‘s only prior adult criminal conviction was for obstructing official business and that he had a juvenile adjudication in 2016 for “Assault on teachers” in Lucas County for which he had been sentenced to one year of probation. Each of the victims provided statements that detailed the trauma and long-term emotional damage they had suffered as a result of Glover‘s actions.
{22} The trial court imposed a sentence that was a blend of concurrent and consecutive sentences. For each of the 11 felony counts, the court was authorized to impose a minimum sentence of 3 to 11 years.
{23} For each of the 11 first-degree felonies, the court imposed a sentence of seven years, a term that was at the middle of the 3-to-11-year sentencing range.
{24} The trial court merged the two gun specifications for each incident, and it sentenced Glover to a three-year gun specification for each of the six
{25} In rendering its sentence, the trial court emphasized the extreme fear and lasting psychological harm that had been inflicted on each of the victims. It explained that the “horror and terror” that Glover put his victims through “lasted for hours” and that Glover had “changed the li[ves]” of all five of his victims. The court went through the victims one by one and detailed the trauma and harm that each had suffered. For example, the court said that Glover had caused Maya, “who already had anxiety and was doing pretty well,” to take “a million steps [back] going through anxiety again, getting more counseling.” The court also said that Glover did not have “a terrible record,” but it noted that he was only 23 and did already have convictions for assault on teachers and obstruction of justice. In addition, the court noted that Glover had shown a lack of remorse and failed to take responsibility for his actions.
{26} The court made each of the findings required by the consecutive-sentencing statute. The court found that consecutive sentences were necessary “to protect the public, and to punish [Glover], and [were] not disproportionate to the seriousness of [his] conduct and [the] danger [he] pose[d] to the public.” See
E. The First District reverses and modifies Glover‘s sentences
{27} Glover appealed his convictions and his sentences. The First District affirmed the convictions, but it reversed the 60-year sentence and ordered the trial court to impose a 25-year sentence. 2023-Ohio-1153 at ¶ 106-108 (1st Dist.).
{28} The court of appeals explained that there was “no dispute” that the trial court had made the required findings to impose consecutive sentences. Id. at ¶ 66. But it concluded that the record did not support two of these findings. Id. at ¶ 85. The appeals court cited a wide range of reasons to support its decision.
{29} It first noted that the State had offered a 15-year plea deal prior to trial. Id. at ¶ 60. It also represented that after trial the State had recommended a sentence of between 20 and 25 years. Id. The court did not, however, explain how either circumstance was relevant to its review of the trial court‘s consecutive-sentence findings.
{30} The court of appeals also opined that under this court‘s (now-vacated) decision in State v. Gwynne, 2022-Ohio-4607, ¶ 1, vacated by State v. Gwynne, 2023-Ohio-3851, it was appropriate to consider the aggregate prison term in reviewing a trial-court sentence that included consecutive sentences. 2023-Ohio-1153 at ¶ 72 (1st Dist.). The court of appeals emphasized that Glover‘s victims suffered no “physical harm,” id. at ¶ 75, 96-98, and that the “lack of physical harm weighs against stacking all of the seven-year aggravated-robbery sentences,” id. at ¶ 96. It then pointed to “[a] selection of Ohio cases” involving both emotional and physical harm, “such as rape, sexual conduct with minors, murder, attempted
{31} With this “backdrop,” id. at ¶ 79, the court of appeals turned to the trial court‘s sentencing findings. It held that “the trial court‘s findings involving proportionality under
{32} For both findings, the court of appeals concluded that the trial court erred by considering Glover‘s prior adjudication for “assault on teachers” in its consideration of Glover‘s history of criminal conduct. Id. at ¶ 92. The court noted that the presentence-investigation report did not provide any details of that offense. Id. at ¶ 30. And although the report did not identify the statute under which Glover was adjudicated, the court of appeals assumed that Glover was adjudicated under a provision of the Toledo Municipal Code.2 Id. Relying on that code provision, the court hypothesized that Glover‘s juvenile adjudication “could have been based on something as trivial as [a] nonviolent disruption of a class or even a pep rally.” Id. at ¶ 92. On this basis, the court of appeals held that the trial court erred by taking Glover‘s juvenile adjudication into account. Id. at ¶ 95.
{33} The court also found that Glover‘s current aggravated-robbery and kidnapping offenses did not support the trial court‘s proportionality finding. 2023-Ohio-1153 at ¶ 100 (1st Dist.). It concluded that the lack of physical harm undermined the trial court‘s proportionality finding. Id. at ¶ 101. In doing so, it pointed out that under the Revised Code, the sentence for a single instance of a
{34} The court conceded that “To be clear, we do not suggest that under the facts of this case, the trial court could not have stacked some of the sentences. Rather, we are firmly convinced that the record does not support the trial court‘s proportionality finding based on it stacking all the aggravated-robbery and gun-specification sentences.” (Emphasis in original.) Id. at ¶ 100.
{35} The court of appeals acknowledged that it did not have the authority to review the 18 years that Glover received on the gun specifications, explaining, “Glover‘s appeal did not specifically mention the consecutive sentencing for the gun specifications. And for penalty-enhancing specifications, a trial court need not make consecutive-sentence findings.” Id. at ¶ 105.
{36} The court then invoked its power to modify the felony sentences under
II. ANALYSIS
{37} We accepted the State‘s appeal on two propositions of law that challenge the court of appeals’ review of the trial court‘s consecutive-sentence findings. 2023-Ohio-2664. Before we get to the State‘s propositions, we explain the statutory framework for the imposition of consecutive sentences and for appellate review of such sentences.
{38} Ohio law presumes that a defendant convicted of multiple crimes will serve his sentences concurrently.
(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 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{40} The appellate-review statute provides the sole basis for an appellate court‘s review of consecutive sentences:
The court hearing an appeal [of a sentence that includes consecutive sentences] shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division . . . (C)(4) of section 2929.14 . . . .
(b) That the sentence is otherwise contrary to law.
(Emphasis added.)
B. The appellate-review statute limits and guides a court of appeals’ review of consecutive sentences
{41} The State‘s first proposition of law postulates that an appellate court should not “focus on a defendant‘s aggregate prison term when . . . reviewing consecutive sentences.” The State‘s second proposition of law states that a court of appeals may not “substitute its judgment for that of the trial court” when reviewing a sentence under the appellate-review statute.
{42} Both of the State‘s propositions represent correct statements of the law, though a fuller explanation is required. The plain language of the appellate-review statute directs the appellate court‘s inquiry. The court must review the trial court‘s consecutive-sentence findings, and it may “increase, reduce, or otherwise modify” consecutive sentences only if it “clearly and convincingly” finds that the record does not support the trial court‘s findings,
{43} Nowhere does the appellate-review statute direct an appellate court to consider the defendant‘s aggregate sentence. Rather, the appellate court must limit its review to the trial court‘s
{44} The statute does not permit an appellate court to simply substitute its view of an appropriate sentence for that of the trial court. An appellate court‘s inquiry is limited to a review of the trial court‘s
{45} Thus, an appellate court may not reverse or modify a trial court‘s sentence based on its subjective disagreement with the trial court. And it may not modify or vacate a sentence on the basis that the trial court abused its discretion. Rather, the appellate court‘s review under
{46} Though “clear-and-convincing” is typically thought of as an evidentiary standard, the General Assembly has chosen to use that standard as the measure for an appellate court‘s review of a trial court‘s
C. The court of appeals misapplied the appellate-review statute
{47} Having dealt with the State‘s propositions of law, we now turn to the court of appeals’ application of the appellate-review statute in this case. We conclude that the court of appeals made several errors in its review of the trial court‘s sentencing findings. Like the court below, we will not review the consecutive sentences for the gun specifications because Glover has not challenged them.
{48} The court of appeals pointed to two specific findings by the trial court that it held were clearly and convincingly not supported by the record: (1) the trial court‘s finding that consecutive sentences are not disproportionate to the seriousness of Glover‘s conduct and to the danger that he poses to the public, 2023-Ohio-1153 at ¶ 99-101 (1st Dist.), and (2) the trial court‘s finding under
{49} We begin with the
{50} Recall that to impose consecutive sentences, a court must make one of three findings under
{51} The other finding that the court of appeals concluded was clearly and convincingly not supported by the record was the trial court‘s finding under
{52} The statutory scheme circumscribes an appellate court‘s review of a trial court‘s proportionality finding. The proportionality requirement is phrased in the negative;
{53} In determining that the trial court‘s proportionality finding was clearly and convincingly not supported by the record, the court of appeals relied in part on its disagreement with the trial court‘s consideration of Glover‘s juvenile adjudication for assault on teachers. 2023-Ohio-1153 at ¶ 101 (“The lack of physical harm, combined with Glover‘s lack of criminal history, firmly convinces us that the trial court erred” in its proportionality finding. [Emphasis added.]). The proportionality prong, however, focuses on the defendant‘s current conduct: the court must 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.”
{54} Other than its disagreement with the trial court‘s consideration of Glover‘s juvenile adjudication, the court of appeals did not conclude that any of the
{55} There is no requirement in law, however, that consecutive sentences are only appropriate when an offender inflicts physical harm on his victims. The legislature could have prescribed such a scheme, but it did not. As the sentencing court explained, Glover inflicted lasting harm on his victims—harm that may well last longer and have more profound effects than a temporary physical injury. The court of appeals may have disagreed with the trial court‘s assessment of the magnitude of the harm inflicted by Glover, but this disagreement with the trial court‘s assessment is far different from concluding that the record clearly and convincingly does not support the trial court‘s consecutive-sentence findings.
{56} Indeed, a review of the court of appeals’ decision shows multiple instances in which the court strayed beyond its role of evaluating whether the trial court‘s sentencing findings clearly and convincingly were not supported by the record. For example, in explaining that the trial court erred in its proportionality finding, the appellate court stated, “This is especially true because before trial, the state offered 15 years in exchange for a guilty plea, and after trial, the state recommended a 20-to 25-year sentence.” 2023-Ohio-1153 at ¶ 101 (1st Dist.).
{57} But of course, nothing in the appellate-review statute allows a court of appeals to consider a plea offer or a state‘s sentencing request in its review of consecutive sentences. The court of appeals must limit its review to the trial court‘s findings. In addition to amounting to an inappropriate consideration, the court of appeals’ statement about the State‘s position at sentencing was inaccurate. During Glover‘s sentencing hearing, the assistant prosecutor said that the State “would defer to the Court, as far as what the victims ask,” but she noted that “some of the victims asked for the maximum,” while “some of them are in the ballpark of 20 to
25 years.” As for the pretrial offer, the court of appeals neglected to mention that the State made clear that its offer had been premised on sparing the victims from the additional trauma that testifying at trial would cause, an aim that could no longer be achieved after trial.{¶ 58} The court of appeals also inaccurately suggested that the State had advocated for concurrent sentences at trial, quoting a passage from the sentencing-hearing transcript in which the assistant prosecutor said, “At a minimum I do not think that whatever sentence the Court imposes for each victim should run consecutive with each other. These were separate incidents, separate dates.” See 2023-Ohio-1153 at ¶ 60-61 (1st Dist.). Read in context, however, it is clear that the word “consecutive” in the passage quoted above constituted either a stenographer‘s error or a slip of the tongue by the assistant prosecutor. A fair review of the transcript of the assistant prosecutor‘s argument makes clear that she was arguing that the sentences related to each victim should not run concurrent to each other.
{¶ 59} The court of appeals also strayed from its role when it compared Glover‘s sentence to the sentences imposed under other statutes and in other cases. The court offered a “selection” of cases in which it found that courts had imposed lesser sentences for “crimes that caused both physical and emotional harm.” 2023-Ohio-1153 at ¶ 77 (1st Dist.). But the appellate-review statute asks a court of appeals to review whether the record clearly and convincingly does not support the trial court‘s findings,
{¶ 60} The court of appeals’ comparison of Glover‘s sentence with the sentences imposed for crimes that involved physical harm—such as rape, assault, and murder—also overlooks the fact that it is the legislature that defines the penalties available for particular crimes. The General Assembly deliberately made aggravated robbery a first-degree felony—along with crimes like aggravated burglary, trafficking in persons, rape, and trafficking more than 50 grams of certain controlled substances. See
III. CONCLUSION
{¶ 61} The record in this case does not clearly and convincingly fail to support the trial court‘s consecutive-sentence findings. In concluding otherwise, the First District Court of Appeals effectively substituted its view for the trial court‘s. We reverse its judgment and reinstate the sentences imposed by the trial court.
Judgment reversed
and sentences reinstated.
{¶ 62} I concur in the court‘s judgment reversing the judgment of the First District Court of Appeals. I also join the portion of the lead opinion analyzing the State‘s second proposition of law. Because I disagree with the portion of the lead opinion analyzing the State‘s first proposition of law, however, I do not join that portion of the lead opinion.
I would hold that in making a proportionality determination under
{¶ 63} With its first proposition of law, the State has asked us to hold that “[n]either the trial nor the appellate courts are required by
{¶ 64}
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
{¶ 65} Under
{¶ 66} In my view, the aggregate prison term does not factor into whether “consecutive service is necessary to protect the public from future crime or to punish the offender,” as this provision requires courts to consider whether the need to protect the public requires that some prison terms be served consecutively. (Emphasis added.) Id. At this stage of its analysis, the sentencing court simply determines whether the goals of protecting the public or punishing the offender require that the offender serve some terms consecutively rather than serving all
{¶ 67} In this next step, the court must consider whether ”consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public.” (Emphasis added.) Id. For this step, I believe that courts must consider the aggregate prison term. R.C. Chapter 2929 itself seems to compel such a conclusion, as its framework suggests that the aggregate prison term be considered.
{¶ 68} In order to fulfill the mandate of
{¶ 69} As
I agree with the lead opinion‘s analysis of the State‘s second proposition of law
{¶ 70} I agree with the analysis set forth in the lead opinion related to the State‘s second proposition of law. For the reasons set forth in the lead opinion, which are in accord with our recent decision in State v. Jones, 2024-Ohio-1083, I agree that a sentence can be modified or vacated only when the appellate court “‘clearly and convincingly finds’ that the record does not support the sentencing court‘s findings,” as stated plainly in
{¶ 71} Moreover, despite my differing analysis regarding the State‘s first proposition of law, I agree with the ultimate conclusion—set forth in the lead opinion—that “[t]he record in this case does not clearly and convincingly fail to support the trial court‘s consecutive-sentence findings.” Lead opinion at ¶ 61.
Conclusion
{¶ 72} For the reasons set out above, I respectfully concur in judgment and join the portion of the lead opinion analyzing the State‘s second proposition of law.
{¶ 73} Given the opportunity to clarify the law on consecutive sentencing under
{¶ 74} Further, I would hold that the correct standard of review of the record and the trial court‘s consecutive-sentence findings is de novo, for the reasons I explained in State v. Gwynne, 2022-Ohio-4607, ¶ 18-23 (”Gwynne IV“), vacated on reconsideration, 2023-Ohio-3851 (”Gwynne V“). Accordingly, I dissent.
I. ANALYSIS
A. Both Sentencing and Reviewing Courts Must Consider the Total Sentence Imposed
{¶ 75} This case was called a “more appropriate vehicle” to consider “whether an aggregate prison term is a factor in imposing or reviewing consecutive sentences” in the reconsideration of Gwynne IV. Gwynne V at ¶ 45 (Fischer, J., concurring in judgment only).3 Frankly, the State‘s proposition of law on that issue
{¶ 76} However, even the dissenting opinion in Gwynne IV (and later the lead opinion in Gwynne V) recognized that trial courts are at least aware of the aggregate sentence: “When a trial court orders a defendant to serve multiple consecutive prison terms, of course it knows the amount of time that it has sentenced the defendant to serve.” Gwynne IV at ¶ 70 (Kennedy, J., dissenting). Despite this recognition, the author of the dissenting opinion in Gwynne IV also said that courts were not required to consider the aggregate sentence; but that is a murky juxtaposition. See Gwynne V at ¶ 21. Are trial courts acting beyond their
{¶ 77} Unlike the lead opinion—which does not articulate a clear standard, leaving sentencing courts and reviewing courts without guidance and likely leading to inconsistent sentences throughout the state5—I would hold that the same legal analysis applies in this case as did in Gwynne IV: courts must consider the aggregate sentence they are imposing. Without repeating the analysis from Gwynne IV, I
{¶ 78} As the lead opinion notes, consecutive sentences ought to be the exception, not the rule. Lead opinion at ¶ 36; see also
{¶ 79} The State‘s first proposition of law in this case concerns the first guardrail on consecutive sentencing, and I would reject that proposition and instead hold that both sentencing and appellate courts must consider the aggregate sentence, i.e., the actual term of incarceration.
{¶ 80} The First District‘s analysis in this case illustrates the folly of claiming that
{¶ 81} To be clear, courts must consider the actual aggregate sentence, not the hypothetical maximum sentence that could be imposed. The Ohio Attorney General argues in his amicus brief that Glover‘s receiving 60 years was reasonable, as he could have received 139 years. Specifically, the attorney general argues that the trial court could have imposed an even more extreme “max and stack” sentence but instead showed restraint by imposing 7 years on each of the 6 aggravated-robbery offenses, rather than the maximum 11 years for each count, and by running the kidnapping sentences concurrently with the robbery sentences. First, the attorney general flippantly pretends that there is a serious difference between 60 years in prison and 139 years in prison. More importantly, it does not matter that the trial court could have imposed more time; what matters is how much time the court did in fact impose. The statute does not require the trial court to consider the potential maximum sentence, nor does it require appellate courts to review such a sentence—all parties are concerned only with the sentence actually imposed.
{¶ 82} The State‘s position is also inconsistent with its argument before the trial court. At sentencing, the State could not even “fathom” what the maximum
B. The Standard of Review Is a De Novo Review to Determine Whether the Sentence Is Not Clearly and Convincingly Supported by the Record and Law
{¶ 83} The second proposition of law presented in this case relates to the second guardrail on the imposition of consecutive sentences in that it addresses the standard appellate courts must apply when reviewing consecutive sentences. See
{¶ 84} The statute defines what the standard of review is not (i.e., it is not an abuse-of-discretion review).
{¶ 85} Turning to the trial court‘s specific considerations in this case, the First District correctly noted that (1) the trial court took into account Glover‘s unclear juvenile adjudication as part of its reasoning at sentencing and (2) the trial court stated that Glover‘s actions in this case were nearly equal to, or perhaps even worse than, murder (although the trial court walked back that statement). 2023-Ohio-1153 at ¶ 99 (1st Dist.). While not ignoring the fear and emotional trauma that Glover caused, I agree with the First District that these crimes were not on par with crimes that result in serious physical harm or death and thus do not deserve a similar sentence to those crimes. Id. at ¶ 98. I am also troubled by the trial court‘s comments on the number of children Glover has and its allegation that he was not supporting them, as well as the court‘s remarks about where Glover lived and whether he was employed. These questions have no bearing on Glover‘s convictions and are not the type of facts the legislature directed trial courts to consider when imposing consecutive sentences. The First District conducted a proper review of the sentence and record in this case, and its decision to reduce the sentence and remand the case to the trial court should be affirmed.
II. CONCLUSION
{¶ 86} For the reasons stated above, and consistent with this court‘s decision in Gwynne IV and my dissent in Gwynne V, I would continue to hold that sentencing courts must consider the aggregate sentence under the necessity and proportionality requirements of
Melissa A. Powers, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for appellant.
Elizabeth Miller, Ohio Public Defender, and Kimberly E. Burroughs, Assistant Public Defender, for appellee.
Dave Yost, Attorney General, T. Elliot Gaiser, Solicitor General, Michael J. Hendershot, Chief Deputy Solicitor General, and Stephen P. Carney, Deputy Solicitor General, urging reversal for amicus curiae Ohio Attorney General Dave Yost.
Cullen Sweeney, Cuyahoga County Public Defender, and Robert McCaleb and Erika B. Cunliffe, Assistant Public Defenders; Russell S. Bensing; and Raymond T. Faller, Hamilton County Public Defender, and David H. Hoffman, Assistant Public Defender, urging affirmance for amici curiae, Cuyahoga County Public Defender‘s Office, Ohio Association of Criminal Defense Attorneys, and Hamilton County Public Defender‘s Office.