STATE OF OHIO, Plaintiff-Appellee -vs- SUSAN GWYNNE, Defendant-Appellant
Case No. 16 CAA 12 0056
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
September 11, 2017
2017-Ohio-7570
Hon. Patricia A. Delaney, P.J.; Hon. Craig R. Baldwin, J.; Hon. Earle E. Wise, Jr., J
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 16-CR-I-06-0271. JUDGMENT: Reversed and Remanded.
For Plaintiff-Appellee
AMELIA BEAN-DEFLUMER
140 North Sandusky Street
Delaware, OH 43015
For Defendant-Appellant
DAVID H. BIRCH
286 South Liberty Street
Powell, OH 43065
{¶1} Defendant-Appellant Susan Gwynne appeals the November 8, 2016 judgment of conviction and sentence of the Court of Common Pleas of Delaware County. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} In January 2016, Delaware County Sherriff‘s Deputies were dispatched to The Inn at Olentangy Trail, a senior living facility. Three residents reported their rooms had been entered and items were stolen. Video surveillance showed appellant, dressed in scrubs, entering the rooms. She began her tour with a large handbag that appeared empty, and ended with a bulging handbag.
{¶3} Images from the video were released to the public and tips led to the identification of appellant as the woman in the video.
{¶4} Thereafter, a GPS unit was placed on appellant‘s car. The GPS data revealed appellant traveling to Sunrise of Dublin, another senior living facility. When appellant traveled to Sunrise of Dublin a second time, Dublin police officers responded to the scene. They discovered appellant carrying a large empty purse, and wearing scrubs, displaying a Griswold Home Health badge. She could not identify a patient she was present to see.
{¶5} As a result of this investigation, a search warrant for appellant‘s home was obtained and executed. Officers executing the search warrant discovered seven large storage bins and a dresser filled with stolen property - more than 3,000 items. These items included jewelry, credit cards, dog tags, military medals, family photos, baby bracelets and other mementos.
{¶7} During part of appellant‘s spree, she was employed as a nurse‘s aide. After she was fired for suspicion of theft, however, she continued to dress as a nurse‘s aide, in order to enter nursing homes and steal from residents while appearing to be a legitimate employee.
{¶8} On June 15, 2016, the Delaware County Grand Jury returned an indictment charging appellant with 31 counts of burglary in violation of
{¶9} On September 21, 2016, following negotiations with the state, appellant elected to enter pleas of guilty to 17 counts of burglary, felonies of the second degree, 4 counts of theft, felonies of the third degree, 10 counts of theft, felonies of the fourth degree, and 15 counts of receiving stolen property, misdemeanors of the first degree. In exchange for appellant‘s pleas, the state agreed to dismiss the remaining 55 counts and recommend a presentence investigation (PSI). Appellant agreed to pay restitution and waive her right to appeal the outcome of the matter.1
{¶11} 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.
{¶12} After considering all of the applicable sentencing statutes, and making all of the required findings, 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 of 65 years incarceration. Sentencing Judgment Entry filed November 8, 2016. Appellant did not object to her sentence.
{¶13} Appellant was 55 years old at the time of her sentencing. Sent. Tr. 20.
{¶14} Appellant subsequently filed this appeal, and the matter is now before this court for consideration. Assignments of error is are follows:
{¶15} “THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO A PRISON SENTENCE IN CONTRAVENTION OF THE SENTENCING STATUTES.”
II
{¶16} “THE TRIAL COURT ERRED BY IMPOSING A SIXTY FIVE YEAR SENTENCE IN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTIONS PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.”
I
{¶17} In her first assignment of error, appellant argues the trial court sentenced her in contravention of sentencing statutes. Appellant does not, however, argue the court failed to make the appropriate findings. Instead, she disagrees with the trial court‘s seriousness and recidivism findings pursuant to
{¶18} When reviewing felony sentences we apply the standard of review set forth in
{¶19}
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 inR.C. 2929.11 and2929.12 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.
{¶20} Thus ”Marcum found an appellate court may increase, reduce, or otherwise modify a sentence, or vacate the sentence and remand the matter to the sentencing court for resentencing if the record does not support the sentencing court‘s findings under the revised code sections enumerated in
{¶22}
The overriding purposes of felony sentencing are to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.
{¶23}
A sentence imposed for a felony shall be reasonably calculated to achieve the two overriding purposes of felony sentencing set forth in division (A) of this section, commensurate with and not demeaning to the
seriousness of the offender‘s conduct and its impact upon the victim, similar offenders.
{¶24}
{¶25} We do not minimize the seriousness of appellant‘s conduct. On this record, however, we find the stated prison term of 65 years does not comply with the purposes and principals of felony sentencing.
{¶26} Under
{¶27} Under
{¶28} In this case the appellant was charged with an inordinate number of theft offenses, over one hundred counts. She reached an agreement with the state to plead
{¶29} A sentence of 65 is plainly excessive. It can be affirmatively stated that a 65 year sentence is a life sentence for appellant. Even a sentence of 20 years, considering the purposes and principles of sentencing and weighed against the factual circumstances of this case, would seem excessive.
{¶30} The sentence is an emotional response to very serious and reprehensible conduct. However, the understandably strong feelings must be tempered by a sanction clearly and convincingly based upon the record to effectuate the purposes of sentencing. The sentence imposed here does not do so. It is disproportionate to the conduct and the impact on any and all of the victims either individually or collectively. It runs the risk of lessening public respect for the judicial system. The imposition of a 65 year sentence for a series of non-violent theft offenses for a first-time felon shocks the consciousness. We therefore find by clear and convincing evidence that the record does not support the sentence.
{¶32} We therefore modify appellant‘s sentence pursuant to
{¶33} In regard to the offenses of burglary in violation of Section
{¶34} In regard to the offenses of theft in violation of Section
{¶35} In regard to the offenses of theft in violation of Section
{¶37} Finally, we order that Counts 1, 4, 6, 10, 13, 16, 37, 58, and 61 be served consecutively to each other for an aggregate term of 15 years of incarceration. Given the facts of this case, we find 15 years incarceration consistent with the principles and purposes of sentencing.
II
{¶38} In her second assignment of error, appellant argues her sentence constitutes cruel and unusual punishment in violation of her Eighth Amendment protections. Given our disposition of her first assignment of error, we do not reach the merits of this assignment of error as it is moot.
{¶39} The judgment of the Court of Common Pleas of Delaware County, Ohio is hereby reversed, and the matter is remanded to said court for the purpose of resentencing, with instructions to modify appellant‘s sentence in accordance with this opinion.
By Wise, Earle J.
Delaney, P.J. and
Baldwin, J. concur.