THE STATE OF OHIO, APPELLEE, v. GWYNNE, APPELLANT.
No. 2021-1033
Supreme Court of Ohio
December 23, 2022
2022-Ohio-4607
Submitted June 14, 2022
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Gwynne, Slip Opinion No. 2022-Ohio-4607.]
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.
SLIP OPINION NO. 2022-OHIO-4607
THE STATE OF OHIO, APPELLEE, v. GWYNNE, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Gwynne, Slip Opinion No. 2022-Ohio-4607.]
Criminal law—Sentencing—
(No. 2021-1033—Submitted June 14, 2022—Decided December 23, 2022.
APPEAL from the Court of Appeals for Delaware County, No. 16 CAA12 0056, 2021-Ohio-2378.
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,
{¶ 2} Because the Fifth District did not have the benefit of this court‘s clarification on how
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
{¶ 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
{¶ 6} Gwynne appealed to the Fifth District Court of Appeals and argued that (1) the trial court‘s findings under
{¶ 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
{¶ 9} Gwynne appealed, and this court accepted review over the following two propositions of law:
- 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.
- 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
- 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. -
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. - The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
See id.
{¶ 11}
{¶ 12} But what exactly must a trial court consider when making the
R.C. 2929.14(C)(4)
{¶ 13} As indicated above,
{¶ 14} When the consecutive-sentencing-findings language in
{¶ 15} Similarly, we interpret
{¶ 17} Liberally construing
The standard of appellate review under R.C. 2953.08(G)(2) of consecutive sentences
{¶ 18}
{¶ 19} To understand how this works, it is helpful to first explain what types of deference
“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.”
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22 quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 20} It is important to understand that the standards referenced above have very specific meanings and fall into one of two categories—either a standard of review or an evidentiary standard of proof. “Abuse of discretion,” “clearly erroneous,” and “substantial evidence” are traditional forms of appellate-court deference that are applied to a trial court‘s decisions. They are standards of review that are applied by a reviewing court to certain decisions that
{¶ 21} In this role as a finder of fact, the appellate court essentially functions in the same way as the trial court when imposing consecutive sentences in the first instance. There are three key differences, however. The first difference, which is discerned from the language of
{¶ 22} Thus, when viewed in its proper context, the deference that a trial court‘s consecutive-sentence findings receive comes from the language of
{¶ 23} A trial court makes its consecutive-sentencing findings using a preponderance-of-the-evidence standard—i.e., a more-likely-than-not standard. But pursuant to
Practical guidance for consecutive-sentence review
{¶ 24} The holdings in this case clarify how consecutive sentences are to be imposed and reviewed and are in accord with the legislature‘s intentions. However, given the complex history of
{¶ 25} The first step in consecutive-sentence review is to ensure that the consecutive-sentence findings under
fails to make these findings, and that issue is properly raised on appeal, then the appellate court must hold that the order of consecutive sentences is contrary to law and either modify the sentence or vacate it and remand the case for resentencing. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 36-37; see also State v. Jones, 93 Ohio St.3d 391, 399, 754 N.E.2d 1252 (2001), abrogated on other grounds by State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470;
{¶ 26} If the appellate court determines that the
{¶ 27} As we have stated above, the appellate standard of review under
{¶ 28} When reviewing the record under the clear-and-convincing standard, the first core requirement is that there be some evidentiary support in the record for the consecutive-sentence findings that the trial court made. If after reviewing the applicable aspects of the record6 and what, if any, evidence it contains, the appellate court finds that there is no evidence in the record to support the consecutive-sentence findings, then the appellate court must reverse the order of consecutive sentences. A record that is devoid of evidence simply cannot support the findings required by
{¶ 29} The second requirement is that whatever evidentiary basis there is, that it be adequate to fully support the trial court‘s consecutive-sentence findings. This requires the appellate court to focus on both the quantity and quality of the evidence in the record that either supports or contradicts the consecutive-sentence findings.7 An appellate court may not, for example, presume that because the record contains some evidence relevant to and not inconsistent with the consecutive-sentence findings, that this evidence is enough to fully support the findings. As stated above,
deference to a trial court‘s consecutive-sentence findings. Instead, a de novo standard of review applies to whether the evidence in the record supports the findings that were made. Under this standard, the appellate court is, in fact, authorized to substitute its judgment for the trial court‘s judgment if the appellate court has a firm conviction or belief, after reviewing the entire record, that the evidence does not support the specific findings made by the trial court to impose consecutive sentences, which includes the number of consecutive terms and the aggregate sentence that results.
The dissenting opinion‘s unfounded accusations
{¶ 30} Nothing in the dissenting opinion persuasively argues that the language of the statutes at issue, the history of those statutes, or any case law or legal doctrine supports a conclusion any different than the one this decision reaches. The dissenting opinion, which relies more on pejorative labels than on a critical analysis of the sentencing statutes at issue, ignores the simple fact that in reviewing Gwynne‘s proposition of law No. I, we determined that two questions—each both highly relevant
Conclusion
{¶ 31} For the foregoing reasons, we hold that
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and TRAPP and BRUNNER, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by FISCHER and DEWINE, JJ.
MARY JANE TRAPP, J., of the Eleventh District Court of Appeals, sitting for DONNELLY, J.
KENNEDY, J., dissenting.
{¶ 32} This is the second time we have considered whether the trial court properly imposed consecutive sentences. While we can debate the wisdom of the sentences imposed and whether the sentences imposed were prudent, the trial court followed the law and the appellate court properly reviewed and affirmed the trial court‘s judgment. So once again, I dissent.
{¶ 33} The only issue before this court is whether the plain language of
{¶ 34} First, the majority holds that
{¶ 35} Because the appellate court followed the law by applying the correct standard of review and affirmed the trial
FACTS AND PROCEDURAL HISTORY
{¶ 36} As set forth above, this is the second time this matter has come before this court. See State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169 (”Gwynne I“). I agree with the facts and procedural history as set forth in the majority opinion and rely on them. However, to understand why the majority is wrong and is itself creating an issue that is not properly before this court, it is necessary to develop in greater detail Gwynne‘s arguments in Gwynne I and State v. Gwynne, 2021-Ohio-2378, 173 N.E.3d 603 (5th Dist.) (”Gwynne II“).
Gwynne I
{¶ 37} In her first appeal to the Fifth District Court of Appeals, Gwynne advanced two assignments of error. See State v. Gwynne, 5th Dist. Delaware No. 16-CAA-12 0056, 2017-Ohio-7570: (1) “[t]he trial court erred by sentencing [Gwynne] to a prison sentence in contravention of the sentencing statutes,” id. at ¶ 15, and (2) “[t]he trial court erred by imposing a sixty five year sentence in
violation of the
{¶ 38} In support of her first assignment of error, Gwynne argued that the trial court‘s seriousness and recidivism findings pursuant to
{¶ 39} In support of her second assignment of error, Gwynne argued that her 65-year sentence was shocking to the sense of justice in the community for a first-time, nonviolent offender. 2017-Ohio-7570 at ¶ 30. Therefore, she argued, her sentence was grossly disproportionate to the offenses she committed and was unconstitutional.
{¶ 40} The Fifth District reversed the judgment of the trial court. While recognizing the seriousness of Gwynne‘s conduct, it determined that a 65-year sentence did not comply with the purposes and principals of felony sentencing as set forth in
{¶ 41} This court accepted the state‘s appeal and reversed the judgment of the court of appeals. Gwynne I, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, at ¶ 20. This court held that a court of appeals may not review a trial court‘s imposition of consecutive sentences under
Gwynne II
{¶ 42} After this court remanded Gwynne‘s case to the Fifth District, she was granted leave to file supplemental briefing. Her supplemental brief advanced the following assignments of error and issues presented for review:
Assignment of Error I: The trial court erred by sentencing [Gwynne] to a prison sentence in contravention of the sentencing statutes. (Nov. 23, 2016, Amended Judgment Entry on Sentence.) Issue presented for review: Does the record support the imposition of consecutive sentences upon * * * Gwynne for offenses that involved neither a weapon, nor actual or threatened physical harm to any individual, nor great financial harm?
Assignment of Error II: 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.)Issue presented for review: Does a prison sentence of 65 years for offenses that involved neither a weapon, nor actual or threatened physical harm to any individual, nor great financial harm constitute cruel and unusual punishment?
Assignment of error III: Ohio‘s consecutive-sentence statute is unconstitutional, because it permits trial courts to impose life-without-parole-equivalent sentences that shock the conscience, and thus constitute cruel and unusual punishment. (Nov. 23, 2016, Amended Judgment Entry on Sentence.)
Issue presented for review: Is Ohio‘s consecutive-sentence statute unconstitutional, due to its failure to prevent trial courts from imposing sentences that violate the
Eighth Amendment ?Assignment of Error IV: * * * Gwynne‘s guilty pleas were not made knowingly, intelligently, and voluntarily. (Plea Change Tr. 17-18; Change of Plea and Judgment Entry, Sept. 23, 2016.)
Issue presented for review: When the trial court did not inform * * * Gwynne of the maximum penalty she faced before she entered her guilty pleas, were those pleas made knowingly, intelligently, and voluntarily?
{¶ 43} After consideration of the assignments of error and issues presented for review, the Fifth District affirmed Gwynne‘s 65-year sentence. Gwynne II, 2021-Ohio-2378, 173 N.E.3d 603, at ¶ 19-25. While the court of appeals still considered the sentence “wholly excessive” for a nonviolent, first-time felony offender, it concluded that “no authority exists for this court to vacate some, but not all of Gwynne‘s consecutive sentences.” Id. at ¶ 25. Applying the standard set forth in
{¶ 44} Gwynne appealed to this court, and we accepted the following two propositions of law:
Proposition of law No. I: 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.
Proposition of law No. II: 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 128.
{¶ 45} Because the majority has dismissed Gwynne‘s proposition of law No. II as having been improvidently accepted,
{¶ 46} In support of proposition of law No. I, Gwynne argues that the imposition of consecutive sentences, totaling 65 years, was clearly and convincingly not supported by the record because
- no weapons were involved,
- no individual was physically harmed or threatened with physical harm,
- the total amount of restitution ordered was less than $10,000,
- * * * Gwynne has no prior felony record,
- * * * Gwynne accepted responsibility and expressed remorse for her actions, and
- she is in the low to moderate risk category for likelihood of reoffending.
{¶ 47} In other words, because she did not have a weapon, inflict or threaten physical harm, took responsibility for her crimes, expressed remorse, and was ordered to pay an amount of restitution under $10,000, the trial court could not impose consecutive sentences. But that is just not what the law says.
LAW AND ANALYSIS
Standard of review—statutory construction
{¶ 48} Gwynne‘s proposition of law No. I raises a question of statutory interpretation. De novo review applies to questions of statutory interpretation. Ceccarelli v. Levin, 127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8. And when a court is interpreting a statute, its main objective is to give effect to the legislative intent. State ex rel. Solomon v. Police & Firemen‘s Disability & Pension Fund Bd. of Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995). “The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact.” Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574 (1902), paragraph two of the syllabus. “When the statutory language is plain and unambiguous, and conveys a clear and definite meaning, we must rely on what the General Assembly has said,” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784 N.E.2d 1172, ¶ 12, and apply it as written, Summerville v. Forest Park, 128 Ohio St.3d 221, 2010-Ohio-6280, 943 N.E.2d 522, ¶ 18.
Legislative authority to enact sentences
{¶ 49} The constitutional authority to legislate was conferred solely on the General Assembly,
{¶ 50} The legislature “is vested with the power to define, classify, and prescribe punishment for offenses committed in Ohio.” State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 12. “Judges have no inherent power to create sentences,” and instead “are duty-bound to apply sentencing laws as they are written.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22, citing Griffin & Katz, Ohio Felony Sentencing Law, Section 1:3, at 4, fn. 1 (2008), overruled on other grounds by State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248.
{¶ 51} Gwynne‘s proposition of law No. I brings
{¶ 52} Appellate review of criminal sentences is governed by
(2) The court hearing an appeal under division (A), (B), or (C) of this section 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 * * *:
(a) That the record does not support the sentencing court‘s findings under division * * *(C)(4) of section
2929.14 * * *.
(Emphasis added).
{¶ 53} The language of
{¶ 54} An appellate court is directed that it must have a firm belief or conviction that the record does not support the trial court‘s findings before it may increase, reduce, or otherwise modify consecutive sentences. It does not require that the appellate court have a firm belief or conviction that the record supports the findings. This language is plain and unambiguous and expresses the General Assembly‘s intent that appellate courts employ a deferential standard to the trial court‘s consecutive-sentence findings.
{¶ 55} We have defined “clear and convincing evidence” as “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.
{¶ 56} Because the Fifth District correctly applied this deferential standard and did not find that the record did not support the consecutive-sentence findings of the trial court, Gwynne‘s consecutive sentences must be affirmed. But the majority interjects, without any supporting authority, that
{¶ 57} De novo review requires a court to exercise its independent judgment, Lincoln Properties, Inc. v. Goldslager, 18 Ohio St.2d 154, 159, 248 N.E.2d 57 (1969), which is contrary to the plain language
The court of appeals and the supreme court shall review the judgment in the case and the sentence of death imposed by the court or panel of three judges in the same manner that they review other criminal cases, except that they shall review and independently weigh all of the facts and other evidence disclosed in the record in the case and consider the offense and the offender to determine whether the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors in the case, and whether the sentence of death is appropriate.
(Emphasis added). Had the General Assembly intended for a court of appeals to conduct a de novo review of the record and the trial court‘s consecutive-sentence findings, it would have done so. But it did not. De novo review of a trial court‘s consecutive-sentence findings is simply incongruous with the deference that the legislature stated an appellate court must give those findings in the statutory language of
Gwynne‘s sentence should be affirmed
{¶ 58} As stated above, this court addresses only one proposition of law. That proposition of law asserts that the trial court erred when it sentenced Gwynne to consecutive terms of imprisonment when such a sentence is “clearly and convincingly not supported by the record.”
{¶ 59} The plain language of
{¶ 60} At sentencing, the trial court made the required
The felony sentences are imposed consecutively. I find that consecutive sentences are necessary to protect the public from future crime and to punish [Gwynne]. Consecutive sentences are not disproportionate to the seriousness of [Gwynne‘s] conduct and the danger she poses to the public, and I find at least two of the multiple offenses were committed as part of a course of conduct and the harm caused by two or more of the multiple offenses was so great or unusual that no single prison term for any of the offenses committed as part of the course of conduct would adequately reflect the seriousness of [Gwynne‘s] conduct.
{¶ 61} The record in this case does not clearly and convincing fail to support the trial court‘s findings; in other words, it does not overwhelmingly support a contrary result concerning the imposition of consecutive sentences. Gwynne engaged in an approximately eight-year life of crime, stealing countless items of both financial and personal value from some of the most vulnerable members of society—the elderly who were residing in nursing homes and assisted-living facilities. Many of the elderly
{¶ 62} While this determination should end the case, the majority goes on to make holdings that are not argued by Gwynne as part of proposition of law No. I: aggregate prison terms. It holds that
R.C. 2929.14(C)(4) does not require consideration of the aggregate prison term
{¶ 63} To find that
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 * * *.
(Emphasis added).
{¶ 64} There is only one reasonable meaning of that language. The words “serve” and “service” and the phrase “consecutive sentences” all relate to the same type of prison term the court can impose: consecutive—one after the other. Whether this language is read in isolation or in conjunction with the statutory scheme, it is not ambiguous.
{¶ 65}
(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.
{¶ 66} A statute is unambiguous when its text lends itself to one apparent interpretation (even if others are reasonable). A statute is ambiguous when its text supports “two equally persuasive and competing interpretations of the law.” (Emphasis added.) Ferrara v. Trumbull Cty. Bd. of Elections, 166 Ohio St.3d 64, 2021-Ohio-3156, 182 N.E.3d 1142, ¶ 21. Moreover, when interpreting a statute, a court does not declare a statute to be ambiguous merely because there are two different ways to define a statutory term. Instead, the court must simply read the language of the statute, as informed by the canons of construction and context, and determine whether one best reading emerges.
{¶ 67} The only reasonable interpretation of
{¶ 68} The majority is simply reading words into
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 aggregate consecutive service of the multiple prison terms is necessary to protect the public from future crime or to punish the offender and that aggregate consecutive sentences of the multiple prison terms 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 * * *.
{¶ 69} Had the General Assembly intended for a trial court to make these findings on the record at the time that the court imposes consecutive sentences, the General Assembly would have included this language. In fact, as the majority notes, the General Assembly uses the term “aggregate” in
{¶ 70} Moreover, what exactly does the majority‘s holding mean? 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. So do trial courts now have to say magical words?
{¶ 71} The legislature is vested with the authority to prescribe punishment for offenses, Taylor, 138 Ohio St.3d 194 at ¶ 12, and judicial policy preferences cannot override it, Smorgala, 50 Ohio St.3d at 223. This court is tasked with applying unambiguous laws, not rewriting them to suit judicial preferences. By enlarging the language of the statute, the majority becomes the legislature, which
The majority improperly raises and resolves issues that are not before the court
{¶ 72} Gwynne‘s single-minded focus during both Gwynne I, 158 Ohio St.3d 279, and Gwynne II, 2021-Ohio-2378, 173 N.E.3d 603, has been that “the imposition of consecutive sentences is clearly and convincingly not supported by the record.” But that is not the issue that the majority has decided.
{¶ 73} Instead, the majority has decided “what the scope of an appellate court‘s authority is under
{¶ 74} “It has long been the policy of this court not to address issues not raised by the parties. * * * This court should be hesitant to decide such matters for the reason that justice is far better served when it has the benefit of briefing, arguing, and lower court consideration before making a final determination.” Sizemore v. Smith, 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2. An appellate court relies on the parties in a case to determine the issues and to argue the applicable law:
“The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but [preside] essentially as arbiters of legal questions presented and argued by the parties before them.” Carducci v. Regan (C.A.D.C.1983), 714 F.2d 171, 177. Proceeding to decide an issue not briefed by the parties creates ” ‘the risk “of an improvident or ill-advised opinion, given [the court‘s] dependence * * * on the adversarial process for sharpening the issues for decision.” ’ ” Carbino v. West (C.A.Fed.1999), 168 F.3d 32, 35, quoting Headrick v. Rockwell Internatl. Corp. (C.A.10, 1994), 24 F.3d 1272, 1278, quoting Herbert v. Natl. Academy of Sciences (C.A.D.C.1992), 974 F.2d 192, 196.
(Ellipsis and Brackets sic.) State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 78 (O‘Donnell, J., concurring in part and dissenting in part).
{¶ 75} Perhaps what is most disturbing about the majority answering unraised, unbriefed issues regarding Ohio‘s sentencing statutes is that appellee, the state of Ohio, has had no ability to weigh in on those questions. Rather than deny the parties notice and an opportunity to be heard, this court should exercise a modicum of judicial restraint and refrain from announcing new standards for consecutive sentences that no party has asked this court to adopt, and the state has had no opportunity to weigh in on.
CONCLUSION
{¶ 76} “[T]he only sentence which a trial court may impose is that provided for by statute. A court has no power to substitute a different sentence for that provided for by statute or one that is either greater or lesser than that provided for by law.” Colegrove v. Burns, 175 Ohio St. 437, 438, 195 N.E.2d 811 (1964). “It is not the role of the courts ‘to establish legislative policies or to second-guess the General Assembly‘s policy choices.’ ” Stetter v. R.J. Corman Derailment Servs., L.L.C., 125 Ohio St.3d 280, 2010-Ohio-1029, 927 N.E.2d 1092, ¶ 35, quoting Groch, 117 Ohio St.3d 192 at ¶ 212. This court
{¶ 77} The only proposition of law properly before this court is what the plain language of
FISCHER and DEWINE, JJ., concur in the foregoing opinion.
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.