THE STATE OF OHIO, APPELLEE, v. GWYNNE, APPELLANT.
No. 2021-1033
Supreme Court of Ohio
October 25, 2023
Slip Opinion No. 2023-Ohio-3851
Criminal law—Sentencing—R.C. 2929.14(C)(4)—Consecutive-sentence findings—R.C. 2953.08(G)(2)—Appellate review of consecutive sentences—Motion for reconsideration granted and court of appeals’ judgment upholding appellant‘s consecutive prison terms affirmed.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Gwynne, Slip Opinion No. 2023-Ohio-3851.]
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. 2023-OHIO-3851
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. 2023-Ohio-3851.]
Criminal law—Sentencing—
(No. 2021-1033—Submitted February 28, 2023—Decided October 25, 2023.
APPEAL from the Court of Appeals for Delaware County, No. 16 CAA12 0056, 2021-Ohio-2378.
ON MOTION FOR RECONSIDERATION.
KENNEDY, C.J., announcing the judgment of the court.
{¶ 1} This matter is before this court as a result of a motion for reconsideration filed by appellee, the state of Ohio.
{¶ 2} Appellant, Susan Gwynne, commenced this case in this court by filing a discretionary appeal from a judgment of the Fifth District Court of Appeals. A majority of this court reversed the court of appeals’ judgment affirming Gwynne‘s 65-year sentence. State v. Gwynne, ___ Ohio St.3d ___, 2022-Ohio-4607, ___ N.E.3d ___, ¶ 1-2 (”Gwynne IV“). This court held that the findings required by
{¶ 3} “This court has the authority to grant motions for reconsideration filed under S.Ct.Prac.R. 18.02 in order to ‘correct decisions which, upon reflection, are
{¶ 4} Gwynne did not raise a proposition of law asserting that
{¶ 5} The plain language of
Facts and Procedural History
{¶ 6} In Gwynne IV, this court summarized the relevant facts of this case:
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 and assisted-living facilities. Gwynne was indicted on 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. Gwynne was also charged with 15 first-degree-misdemeanor counts of receiving stolen property.
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 [the] second-degree-burglary offenses, 12 months for each of the third-degree-theft 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
R.C. 2929.14(C)(4) for imposing consecutivesentences and ordered the felony sentences to be served consecutively, making Gwynne‘s aggregate sentence 65 years. Gwynne appealed to the Fifth District Court of Appeals and argued that (1) the trial court‘s findings under
R.C. 2929.14(C)(4) were erroneous and not supported by the record and (2) her 65-year sentence violated the Eighth Amendment‘s prohibition against cruel and unusual punishments. The Fifth District reversed the trial court‘s judgment. State v. Gwynne, 5th Dist. Delaware No. 16-CAA-12 0056, 2017-Ohio-7570 (”Gwynne I“). In doing so, the court of appeals found that although Gwynne‘s conduct was serious, the 65-year sentence did not comport with the purposes and principles of felony sentencing as set forth inR.C. 2929.11 and2929.12 and was plainly excessive and shocking for a nonviolent, first-time offender. Gwynne I at ¶ 22-30. Nevertheless, the appellate court still agreed that some consecutive sentences were warranted. Id. at ¶ 31. Therefore, it modified Gwynne‘s felony sentences and imposed an aggregate sentence of 15 years, rendering Gwynne‘s Eighth Amendment claim moot. Id. at ¶ 33-38.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
R.C. 2953.08(G)(2) does not allow an appellate court to reverse or modify a defendant‘s consecutive sentences using the principles and purposes of felony sentencing as set forth inR.C. 2929.11(A) and(B) and the seriousness and recidivism factors inR.C. 2929.12 . Gwynne II at ¶ 13-18 (lead opinion); id. at ¶ 31-43 (Kennedy, J., concurring in judgment only). We thus reversed the Fifth District‘s judgment and remanded the case to the court of appeals for it to consider Gwynne‘s consecutive-sentence challenge using the standard of review set forth underR.C. 2953.08(G)(2) , which permits reversal or modification of consecutive sentences if the reviewing court clearly and convincingly finds that the record does not support the sentencing court‘sR.C. 2929.14(C)(4) findings. Gwynne II at ¶ 20 (lead opinion).On remand, the Fifth District stated again that while consecutive sentences were appropriate and that the findings made by the trial court before imposing consecutive sentences were appropriate, it still disagreed with the number of consecutive sentences that the trial court imposed. 2021-Ohio-2378, 173 N.E.3d 603, ¶ 19-25 (”Gwynne III“). Indeed, it stated that the trial court‘s imposition of a 65-year sentence was “wholly excessive * * * for a non-violent first time felony offender.” Id. at ¶ 25. In the end, however, the Fifth District reluctantly upheld the 65-year sentence after concluding that “no authority exists for this court to vacate some, but not all of Gwynne‘s consecutive sentences.” Id. The Fifth District also rejected Gwynne‘s Eighth Amendment claim. Id. at ¶ 27-31. Quoting this court‘s decision in State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 23, the Fifth District explained that “‘[b]ecause the individual sentences imposed by the court
are within the range of penalties authorized by the legislature, they are not grossly disproportionate or shocking to a reasonable person or to the community‘s sense of justice and do not constitute cruel and unusual punishment.‘” Gwynne III at ¶ 30.
Gwynne appealed, and this court accepted review over the following two propositions of law:
“1. 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.
2. A sentence that shocks the conscience violates the Eighth Amendment‘s prohibition against cruel and unusual punishment, and is thus contrary to law.”
(Footnote omitted.) Gwynne IV, ___ Ohio St.3d ___, 2022-Ohio-4607, ___ N.E.3d ___, at ¶ 4-9.
{¶ 7} This court dismissed Gwynne‘s second proposition of law as having been improvidently accepted in Gwynne IV, so only the first proposition of law will be addressed here.
Law and Analysis
Standard of review—statutory construction
{¶ 8} Gwynne‘s first proposition of law 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. “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
{¶ 9} The constitutional authority to legislate was conferred solely on the General Assembly,
{¶ 10} 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, overruled on other grounds by State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248.
R.C. 2953.08(G)(2) is unambiguous and provides appellate courts with limited authority to review consecutive sentences
{¶ 11} Appellate review of criminal sentences is governed by
{¶ 12}
(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.)
{¶ 13} The language of
{¶ 14} This court has 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.
{¶ 15} Therefore, 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. The statutory language 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.
{¶ 16} The majority in Gwynne IV, ___ Ohio St.3d ___, 2022-Ohio-4607, ___ N.E.3d ___, ¶ 12, 23, concluded that
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
Review of Gwynne‘s sentence
{¶ 17} 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.
{¶ 18} The record in this case does not clearly and convincingly 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 victims also suffered from medical or cognitive issues. Gwynne‘s actions deprived the victims of their sense of security and their ability to trust their caregivers. She also deprived the victims and their family members of heirlooms and the ability to continue their shared familial heritage. The trial court‘s imposition of consecutive sentences was not clearly and convincingly not supported by the record.
{¶ 19} The criticisms of the first dissenting opinion warrant only a brief response. First, this dissent contends that the meaning of
{¶ 20} A statute is ambiguous when its text supports “two equally persuasive and competing interpretations of the law.” (Emphasis added.) State ex rel. Ferrara v. Trumbull Cty. Bd. of Elections, 166 Ohio St.3d 64, 2021-Ohio-3156, 182 N.E.3d 1142, ¶ 21. 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.
{¶ 21} The terms “consecutive service” and “consecutive sentences” each have only one relevant meaning: the running of two or more sentences one right after the other. See Black‘s Law Dictionary 1569 (10th Ed.2014) (defining “consecutive sentences” to mean “[t]wo or more sentences of jail time to be served in sequence“). Neither of these terms is synonymous with the term “aggregate sentence,” which means “[t]he total sentence imposed for multiple convictions * * *,” id.
{¶ 22} Second, the first dissent asserts that a de novo standard of review applies to an appellate court‘s review of a trial court‘s imposition of consecutive sentences. First dissenting opinion at ¶ 71, citing Gwynne IV, ___ Ohio St.3d ___, 2022-Ohio-4607, ___ N.E.3d ___, at ¶ 23. However, that view is inconsistent with the plain language of
{¶ 23} Third, the first dissent traces the legislative history of
{¶ 24} Lastly, the first dissent is incorrect when it claims that our application of the law to the facts of this case changes the standard of review.
Conclusion
{¶ 25} “[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, 2008-Ohio-546, 883 N.E.2d 377, at ¶ 212. This court must respect the fact that the constitutional authority to legislate was conferred solely on the General Assembly.
{¶ 26} Upon further reflection, we conclude that the Fifth District properly applied the plain language of
Motion for reconsideration granted and judgment affirmed.
DEWINE and DETERS, JJ., concur.
FISCHER, J., concurs in judgment only, with an opinion.
STEWART, J., dissents, with an opinion joined by TRAPP and BRUNNER, JJ.
BRUNNER, J., dissents, with an opinion joined by TRAPP, J.
MARY JANE TRAPP, J., of the Eleventh District Court of Appeals, sitting for DONNELLY, J.
____________________
FISCHER, J., concurring in judgment only.
{¶ 27} This case is simple. Appellant Susan Gwynne‘s consecutive sentences must be affirmed because the appellate court could not find that the record does not support the trial court‘s consecutive-sentence findings when the appellate court did not have access to the record relied on by the trial court to make its sentencing findings. Thus, we have no choice but to affirm Gwynne‘s sentence. Because the lead opinion appropriately affirms the judgment of the lower court, but it does so
Reconsideration of State v. Gwynne, ___ Ohio St.3d ___, 2022-Ohio-4607, ___ N.E.3d ___ (“Gwynne IV“)
{¶ 28} The first dissenting opinion criticizes this court‘s decision to grant reconsideration of this case after a change in the composition of the court due to an election. This criticism is somewhat bewildering given that many of the members of this court, including the author of the first dissenting opinion, rejected my personal policy position regarding new justices voting on motions for reconsideration in cases in which they did not previously participate, see State v. Haynes, 168 Ohio St.3d 1496, 2022-Ohio-4776, 200 N.E.3d 300, ¶ 19 (Fischer, J., dissenting); see also State v. Braden, 158 Ohio St.3d 462, 2019-Ohio-4204, 145 N.E.3d 235, ¶ 51 (”Braden II“) (Fischer, J., dissenting).
{¶ 29} At the beginning of my tenure as a justice of this court, I detailed the unusual position that new justices find themselves in when they are faced with voting on a motion for reconsideration that has been filed in a case in which they did not previously participate. State v. Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, ¶ 24 (Fischer, J., concurring in part and dissenting in part); see also State v. Aalim, 150 Ohio St.3d 489, 2017-Ohio-2956, 83 N.E.3d 883, ¶ 51 (Fischer, J., concurring in part and dissenting in part). As stated in my separate opinion in Gonzales, my general practice upon joining this court was to vote to deny such motions for reconsideration. Id. at ¶ 24; see also Aalim at ¶ 51. I have been consistent in my view on this issue, and as recently as December 30, 2022, no other justice—including those dissenting here—has adopted my position. See Haynes at ¶ 19.
{¶ 30} It is nothing short of an obvious irony when the first dissenting opinion criticizes the decision to reconsider this case. There have been multiple occasions in which a newly elected justice has voted on a motion to reconsider a decision in which he or she had not participated. See Haynes at ¶ 20-22 (Fischer, J., dissenting) (collecting cases). Indeed, the author of the first dissenting opinion was one of two new justices to vote to reconsider and reverse State v. Braden, 158 Ohio St.3d 452, 2018-Ohio-5079, 145 N.E.3d 226 (”Braden I“), a decision in which she had not participated. See Braden II.
{¶ 31} “[T]he now-standard practice of this court is to allow all sitting justices to participate in deciding motions for reconsideration, regardless of whether a particular justice participated in the court‘s original decision in the case.” Haynes, 168 Ohio St.3d 1496, 2022-Ohio-4776, 200 N.E.3d 300, at ¶ 25 (Fischer, J., dissenting). While it certainly is not my preference that new justices participate in cases that they have never had the opportunity to hear, they have the authority to do so. This practice is further supported by Jezerinac v. Dioun, 168 Ohio St.3d 286, 2022-Ohio-509, 198 N.E.3d 792, ¶ 17-22, in which this court held that the judicial authority of the bench follows the seat, not the person.
{¶ 32} The first dissenting opinion criticizes a majority of this court for granting reconsideration in this case and addressing only the first proposition of law because it argues that the majority in Gwynne IV, ___ Ohio St.3d ___, 2022-Ohio-4607, ___ N.E.3d ___, was not wrong for answering a “prerequisite question” that was not briefed or argued by either of the parties, first dissenting opinion, ¶ 52. But that position turns the concepts of judicial restraint, forfeiture, and waiver on their heads.
{¶ 33} “In our adversary system, in both civil and criminal cases, in the first instance
{¶ 34} We should not be addressing issues that were not presented in the proposition of law. See, e.g., State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 48 (Fischer, J., concurring in judgment only) (this court should not address an issue not presented before the court). When an issue comes to light after initial briefing is completed and it is necessary to address that issue in order to resolve the matter before the court, this court can and usually does order supplemental briefing. See, e.g., In re Adoption of Y.E.F., 157 Ohio St.3d 1409, 2019-Ohio-3749, 131 N.E.3d 87; Dodd v. Croskey, 140 Ohio St.3d 1406, 2014-Ohio-3708, 14 N.E.3d 1052. The majority in Gwynne IV did not do that—it answered an unbriefed question that neither party asked this court to answer.
{¶ 35} This court has the authority to grant motions for reconsideration to “correct decisions which, upon reflection, are deemed to have been made in error.” State ex rel. Huebner v. W. Jefferson Village Council, 75 Ohio St.3d 381, 383, 662 N.E.2d 339 (1995). It is only on rare occasions that I vote to grant motions for reconsideration, and I have done so in only a handful of cases in my six years on this court. See, e.g., Brandt v. Pompa, 168 Ohio St.3d 1489, 2022-Ohio-4786, 200 N.E.3d 286, ¶ 10 (Fischer, J., dissenting); State ex rel. Maxcy v. Lucas Cty. Bd. of Elections, 154 Ohio St.3d 1401, 2018-Ohio-4419, 111 N.E.3d 1; State v. D.B., 150 Ohio St.3d 452, 2017-Ohio-6952, 82 N.E.3d 1162, ¶ 1. But Gwynne IV was wrongly decided because it went far beyond what the parties argued or presented for review, which is one of the reasons cited by appellee, the state, in its motion for reconsideration. Gwynne IV was also wrongly decided because this court remanded the cause to the appellate court for an unnecessary review of Gwynne‘s sentence, see id., ___ Ohio St.3d ___, 2022-Ohio-4607, ___ N.E.3d ___, at ¶ 2, 31; as explained more fully below, no matter the standard of review applied by the appellate court, it would have been compelled to affirm because the record is incomplete. Hence, this court had the authority, and good reason, to grant reconsideration in this case.
Gwynne‘s sentence must be affirmed given that the record is incomplete
{¶ 36} This court, against my vote, accepted Gwynne‘s first proposition of law for review: “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.” See 165 Ohio St.3d 1449, 2021-Ohio-3908, 175 N.E.3d 1286. As relevant to this case, for an appellate court to “increase, reduce, or otherwise modify” an offender‘s sentence under
{¶ 37} The lead opinion and the first dissenting opinion disagree about the appropriate standard of review that the appellate court must apply when reviewing consecutive sentences under
{¶ 38} Here, the trial court reviewed and utilized Gwynne‘s presentence-investigation report to determine the appropriate sentence. See State v. Gwynne, 5th Dist. Delaware No. 16 CAA 12 0056, 2017-Ohio-7570, ¶ 11 (”Gwynne I“). Thus, the presentence-investigation report was part of the trial court‘s record and was relevant to the sentencing determination. However, the presentence-investigation report never made it into the appellate record and therefore was never reviewed by the court of appeals. Id. at ¶ 27 (the presentence-investigation report was not included for appellate review). We also do not have access to the presentence-investigation report. And the parties have never moved to supplement the record to include the presentence-investigation report. So, neither this court nor the court of appeals could say on this record that “the record does not support” the trial court‘s
{¶ 39} The first dissenting opinion is unfairly critical of the conclusion that this matter should be disposed of on the basis of an incomplete record. The first dissenting opinion emphasizes that it does not appear that the appellate court was concerned that this piece of the record was missing. First dissenting opinion at ¶ 54, fn. 2. But that is not the standard, nor should it be. The court of appeals was required to consider the presentence-investigation report pursuant to
{¶ 40} While the first dissenting opinion is right that the appellate court could have requested this missing piece of the record, it was not required to do so. It was Gwynne‘s duty to ensure that the complete record was filed with the reviewing courts. See Rose Chevrolet, Inc. v. Adams, 36 Ohio St.3d 17, 19, 520 N.E.2d 564 (1988);
{¶ 41} And this is not a new or unraised argument, but rather, it is an issue that was first identified by the court of appeals more than six years ago in Gwynne I. The failure to include the presentence-investigation
{¶ 42} In prior cases, we have granted motions to supplement the record with a presentence-investigation report. See, e.g., State v. Kidd, 163 Ohio St.3d 1432, 2021-Ohio-1789, 168 N.E.3d 522. But the first dissenting opinion has not pointed to a single case in which we have sua sponte asked the lower courts or the appellant to supplement the record with evidence that was missing from it, as it is the appellant‘s burden to ensure that we have the necessary documents on appeal, Rose Chevrolet at 19.
{¶ 43} It is not this court‘s job to make arguments for the parties, as is done by the first dissenting opinion, or to fix fatal mistakes in the record that were brought to the parties’ attention yet not corrected. Just because the first dissenting opinion wants to resolve issues with consecutive sentencing in this case does not mean that we should. Therefore, on this record, we must affirm the judgment of the court of appeals upholding Gwynne‘s sentence.
We need not issue an advisory opinion in this case
{44} As for the issues discussed by the lead opinion and two dissenting opinions, I reserve judgment and will decide those issues when they are presented in a case in which the parties have preserved and argued them on appeal. There is no doubt that there are issues with appellate review of consecutive sentences, but we need to show restraint and resolve those matters when they have been properly raised and argued by the parties. Supplemental briefing, as requested by the state in its motion for reconsideration, resolves nothing in this case because Gwynne did not raise the issues resolved by the lead opinion and dissenting opinions. Gwynne may have claims that she can raise in postconviction proceedings, but we should not simply ignore the fact that she did not raise those arguments properly here so that we can address what she perceives as error in her sentence.
{45} There is a case currently pending in this court, State v. Glover, Supreme Court case No. 2023-0654, that presents an opportunity for this court to address whether an aggregate prison term is a factor in imposing or reviewing consecutive sentences. See State v. Glover, 170 Ohio St.3d 1507, 2023-Ohio-2664, 213 N.E.3d 716. That case seems like a more appropriate vehicle for this court to decide issues related to consecutive sentencing.
Conclusion
{46} For the foregoing reasons, I concur only in the judgment of the lead opinion affirming the judgment of the court of appeals.
STEWART, J., dissenting.
{47} This court issued a majority opinion in this case on December 23, 2022. That decision provided long overdue clarification on the law concerning appellate review of consecutive sentences and remanded the matter to the Fifth District Court of Appeals for application of the clarified law. On January 7, 2023, the judicial makeup of this court changed following the governor‘s appointmentand the swearing in of a new justice to a vacancy on the court. Just prior to this, on January 3, 2023, the state had filed a motion asking the court to reconsider our December 23 decision, and four justices of this court have now chosen to grant the state‘s request.
{48} It is perplexing and disconcerting that these justices would grant reconsideration in a case that simply remanded the matter to the court of appeals in order for it to review the sentence under the clarified standard and yet produce no majority opinion on the law. Worse yet, rather than bringing clarity to the issues presented in this case, the lead opinion will keep the law on consecutive-sentencing review so muddled that it will be virtually impossible for any defendant to eversuccessfully challenge an aggregate sentence imposed as a result of running multiple individual sentences consecutively. Because neither the plain language nor the history of the relevant statutes supports the lead opinion‘s interpretation of the law, I dissent from the court‘s decision to grant reconsideration, and I also dissent from the court‘s decision to deny the state‘s request for additional briefing as part of its motion for reconsideration.
The central issue before the court cannot be answered without first addressing what is required by R.C. 2929.14(C)(4) , and a dictionary alone cannot provide the answer to that question
{49} The question raised by the first proposition of law—whether, pursuant to the standard set forth in
{50} If the abstract concept of consecutive service or consecutive sentences applies, then on appeal, the question an appellate court must ask itself, pursuant to the standard provided in
{51} On the other hand, if in making
{52} As explained in the original majority opinion, the Fifth District Court of Appeals reluctantly upheld Gwynne‘s 65-year sentence on remand after concluding that “‘no authority exists for this court to vacate some, but not all of Gwynne‘s consecutive sentences.‘” State v. Gwynne, ___ Ohio St.3d ___, 2022-Ohio-4607, ___ N.E.3d ___, ¶ 8, quoting 2021-Ohio-2378, 173 N.E.3d 603, ¶ 25. The Fifth District reached this result despite explicitly finding—on two occasions—that the length of Gwynne‘s sentence is so disproportionate to her conduct that it shocks the conscience. 2021-Ohio-2378, 173 N.E.3d 603, at ¶ 30; Gwynne, 5th Dist.Delaware No. 16 CAA 12 0056, 2017-Ohio-7570, at ¶ 30. The lead opinion on reconsideration says that here, the appellate court “properly applied [
{53} The lead opinion on reconsideration notes the fact that the original majority answered this question without briefing from the parties as a reason for granting reconsideration in this matter. Lead opinion
{54} If the justices granting reconsideration today were truly concerned about the original majority opinion having answered an unbriefed question, one wonders why these justices have chosen not to order additional briefing before issuing their decisions on reconsideration in this matter. Indeed, in its motion for reconsideration the state directly asked the court for leave to brief the prerequisite question, but the four justices who have decided to grant reconsideration, including the justice authoring the opinion concurring in judgment only,2 refused to grant thestate‘s request for additional briefing on the prerequisite question, as part of its motion for reconsideration. Notably, although the justices joining this dissent
disagree with the decision to grant reconsideration in this matter, we nevertheless voted to grant the state‘s request
{55} As the lead opinion explains, “[a] statute is ambiguous when its text supports ‘two equally persuasive and competing interpretations of the law.‘” Lead opinion at ¶ 20, quoting State ex rel. Ferrara v. Trumbull Cty. Bd. of Elections, 166 Ohio St.3d 64, 2021-Ohio-3156, 182 N.E.3d 1142, ¶ 21. And, as the lead opinion further points out, when determining whether two equally persuasive and competing interpretations of the law exist, the language of the law shall be informed by its context and the canons of construction. Id. The December 23 majorityopinion did not deviate from these principles when interpreting
{56} As meticulously explained in the December 23 majority opinion, the terms “consecutive service” and “consecutive sentences” are not explicitly defined by
When the consecutive-sentencing-findings language in
R.C. 2929.14(C)(4) is looked at as a whole, no other option exists but for this court to find thatR.C. 2929.14(C)(4) requires the trial court to consider each sentence on individual counts that it intends to impose consecutively on the defendant and the aggregate prison term that will result. For a trial court to 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” and that consecutive service is necessary to protect the public or to punish the offender,R.C. 2929.14(C)(4) , the trial court must know the number of consecutive sentences it is going to be imposing and the aggregateterm that will result before it can say that consecutive sentences are necessary and not disproportionate to the conduct or danger the person poses to the public.
Similarly, we interpret R.C. 2929.14(C)(4)(c) to require a trial court to consider the number of consecutive sentences that it will impose on a defendant along with the aggregate prison term. Before a trial court makes the finding that the defendant‘s “history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime,” it must determine whether the defendant‘s criminal history demonstrates the need for a lengthy prison term to adequately protect the public from the threat of future crimes by the defendant. In other words, within the context ofR.C. 2929.14(C)(4) , whether consecutive sentences are necessary to protect the public is completely dependent on whether the defendant‘s criminal history demonstrates the need for the defendant to be incapacitated by a lengthy term of incarceration. A trial court cannot make this necessity finding without considering the overall prison term that it will be imposing.Additionally,
R.C. 2929.14(C)(9) states: “When consecutive prison terms are imposed pursuant to * * * [R.C. 2929.14(C)(4) ] * * *, the term to be served is the aggregate of all of the terms so imposed.” This indicates that the phrases “consecutive service” and “consecutive sentences” inR.C. 2929.14(C)(4) mean the aggregate of all consecutive sentences to be imposed. These phrases do not mean consecutive sentences in the abstract.
(Emphasis and ellipses sic; footnote omitted.) Id. at ¶ 14-16. The December 23 majority opinion‘s contextual analysis was undeniably thorough and eminentlylogical. Furthermore, the analysis applied sound and tested principles of statutory interpretation—including the rule of lenity found in
{57} The lead opinion disagrees with the December 23 majority opinion‘s determination that the terms “consecutive service” and “consecutive sentences” mean the actual consecutive sentences imposed by the trial court.3 Specifically, it is the position of the justices in the lead opinion that these terms are not ambiguous to begin with, because their chosen dictionary definition of “consecutive sentences” would seem to assign an abstract meaning to that term. See lead opinion at ¶ 21. But this attribution is not helpful at all. A legal
{58} The Seventh Circuit Court of Appeals explained the dangers of relying exclusively on dictionary definitions in United States v. Costello, 666 F.3d 1040, 1043-1044 (7th Cir. 2012), in which Judge Richard Posner explained:
[D]ictionaries must be used as sources of statutory meaning only with great caution. “Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945) (L. Hand, J.). “[T]he choice among meanings [of words in statutes] must have a footing more solid than a dictionary—which is a museum of words, an historical catalog rather than a means to decode the work of legislatures.” Frank H. Easterbrook, “Text, History, and Structure in Statutory Interpretation,” 17 Harv. J.L. & Public Policy 61, 67 (1994); see also A. Raymond Randolph, “Dictionaries, Plain Meaning, and Context in Statutory Interpretation,” 17 Harv. J.L. & Public Policy 71, 72 (1994).
* * *
Dictionary definitions are acontextual, whereas the meaning of sentences depends critically on context, including all sorts of background understandings. In re Erickson, 815 F.2d 1090, 1092 (7th Cir. 1987).
(Brackets added in Costello; ellipsis added).
{59} Although the lead opinion acknowledges that context and canons of construction inform the meaning of terms within a statute, lead opinion at ¶ 20, the lead opinion offers no contextual analysis of the terms, whatsoever. Instead, it simply asserts that these terms are not ambiguous, as if simply saying it makes it so. The December 23 dissenting opinion did the same thing. Gwynne, ___ Ohio St.3d ___, 2022-Ohio-4607, ___ N.E.3d ___, ¶ 63 (Kennedy, J., dissenting). Notably, without providing any basis in the law or even basic logic, that dissenting opinion declared that the terms “consecutive service” and “consecutive sentences” do nothing more than “relate to the same type of prison term the court can impose: consecutive—one after the other,” before further declaring that “[w]hether this language is read in isolation or in conjunction with the statutory scheme, it is not ambiguous.” Id. at ¶ 64.
{60} To top things off, the December 23 dissenting opinion made the unabashed declaration that
The only reasonable interpretation of
R.C. 2929.14(C)(4) is that when a trial court is imposing multiple prison terms, it may order a defendant to serve some or all of those prison terms consecutively if it makes the statutory findings established by the legislature. See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26. According to the statute, that is all the trial court must do.
Id. at ¶ 67 (Kennedy, J., dissenting). That the lead opinion and the December 23 dissenting opinion demonstrate such a pattern of unsound logic, devoid of any analysis, is disturbing, to say the least. Not only does this poor reasoning reflect badly on this court‘s ability to responsibly carry out its function as the highest reviewing court in the state, but it eschews a fair and just review of the law.
Appellate review of consecutive sentences under R.C. 2953.08(G)(2) does not require broad deference to the trial court‘s R.C. 2929.14(C)(4) findings
{61} With almost no supporting legal analysis, the lead opinion holds that
{62} For more than 100 years, the common law—not state statute—controlled the imposition of consecutive sentences in Ohio. See State v. Lett, 161 Ohio App.3d 274, 2005-Ohio-2665, 829 N.E.2d 1281, ¶ 34 (8th Dist.) (“As early as 1868, the Supreme Court of Ohio recognized that in the absence of a statute on point, courts could order that sentences be served consecutively“). During this time, Ohio law presumed that when a court sentenced an offender to multiple terms of imprisonment, those terms would be served consecutively, not concurrently. Id. at ¶ 35. If a trial court wished to impose concurrent sentences, it had to say so explicitly in its sentencing entry; otherwise the common-law presumption applied. See Stewart v. Maxwell, 174 Ohio St. 180, 181, 187 N.E.2d 888 (1963) (“a positive act is required on the part of the sentencing court to cause sentences to run concurrently; and, in the absence of such action, if the entry is silent as to how sentences shall run, it is presumed such sentences will run consecutively“). This all changed, however, when in 1974, the General Assembly ended the common-law presumption in favor of consecutive sentences by enacting
(A) Except as provided in division (B) of this section, a sentence of imprisonment shall be served concurrently with any other sentence of imprisonment. * * *
(B) A sentence of imprisonment shall be served consecutively to any other sentence of imprisonment, in the following cases:
(1) When the trial court specifies that it is to be served consecutively. * * *
Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, at 1985-1986. While the 1974 enactment of
{63} S.B. 2 reflected the General Assembly‘s “first comprehensive revision of Ohio‘s criminal code since 1974,” when
The law now provides precise guidance for criminal sentencing within clearly defined constraints. Painter, Appellate Review Under the New Felony Sentencing Guidelines: Where Do We Stand? (1999), 47 Cleve.St.L.Rev. 533, 537-538. Pursuant to
R.C. 2929.11 through2929.19 , the trial court must follow an
articulated process when determining a sentence. The individual provisions of the sentencing scheme may not be read alone. Painter, supra, 47 Cleve.St.L.Rev. at 538. Additionally, the law accords meaningful review of these sentencing decisions by the appellate courts. “Meaningful review”
means that an appellate court hearing an appeal of a felony sentence may modify or vacate the sentence and remand the matter to the trial court for resentencing if the court clearly and convincingly finds that the record does not support the sentence or that the sentence is otherwise contrary to law. R.C. 2953.08 ; Griffin & Katz, Ohio Felony Sentencing Law, supra, 791-796, Sections 9.19-9.20.
(Emphasis added.) State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, ¶ 10, abrogated on other grounds by Foster at ¶ 56-61, 65-67.
{64} The General Assembly also made amendments to
amendment, it was clear that a trial court no longer had the ability to impose consecutive sentences for felony offenses by simply declaring its intent to do so. In turn, and also as part of S.B. 2, the General Assembly also amended
{65} There can be no dispute that S.B. 2‘s revisions to Ohio‘s sentencing laws reflect a legislative intent to limit trial-court discretion in imposing consecutive sentences. This is reflected in the fact that the legislature made a conscious decision to move away from the blind deference given to trial courts in former
legislature‘s rewriting of the statute evinces a conscious decision to limit a trial court‘s ability to impose consecutive sentences for felony offenses by simply specifying its intent to do so, whereas that ability still existed for sentences on misdemeanor offenses.
{66} The legislature also recognized that the limitations placed on a trial court‘s discretion to impose consecutive sentences under
{67} Regarding appellate review of consecutive sentences under
{68} The lead opinion begins its plain-language analysis by setting the stage for the tale it wants to tell. It pronounces that “[t]his court has recognized that ‘[o]rdinarily, appellate courts defer to trial courts’ broad discretion in making sentencing decisions’ and
{69} The question before the court in Rahab was whether a presumption of vindictiveness arises when a defendant receives a harsher sentence than that offered as part of a plea deal, after rejecting the deal and being found guilty at trial, Rahab at ¶ 1-3. The plurality opinion in Rahab spent a large portion of its discussion analyzing and applying federal case law, because the central issue on appeal concerned due-process protections afforded by the federal Constitution. Id. at ¶ 7-18. Although the latter part of the opinion did apply some of Ohio‘s sentencing statutes,
{70} The lead opinion‘s additional citation to State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23, does no better. See lead opinion at ¶ 11. Nowhere in Marcum did this court ever say that broad discretion is afforded to a trial court‘s consecutive-sentence determinations on appeal. Rather, in Marcum, this court said:
We note that some sentences do not require the findings that
(Emphasis added.) Id. at ¶ 23. Notably, Marcum does not say what level of deference the clear-and-convincing-evidence standard in
{¶ 71} The lead opinion‘s analysis of
R.C. 2953.08(G)(2) gives some amount of deference to a trial court‘s decision concerning consecutive sentences. But this deference—unlike types of deference that are more traditionally associated with appellate review—does not stem from any obligation on the part of the appellate court to defer to the trial court‘s findings. Instead, it comes from the legislature‘s determination that an appellate court must use a higher evidentiary standard—as opposed to the one the trial court uses when making the findings—when it reviews the record and determines whether to exercise its authority underR.C. 2953.08(G)(2) to reverse or modify the trial court‘s order of consecutive sentences.To understand how this works, it is helpful to first explain what types of deference
R.C. 2953.08(G)(2) does not require.R.C. 2953.08(G)(2) does not require the high level of deference that comes with an abuse-of-discretion standard of review. This type of deference would permit a court of appeals to modify a defendant‘s sentence or to vacate the sentence and remand only when no sound reasoning process can be said to support the decision, or where the trial court exhibited an arbitrary or unconscionable attitude when it imposed the consecutive sentences. See AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). In fact,R.C. 2953.08(G)(2) explicitly rejects an abuse-of-discretion standard of review. SeeR.C. 2953.08(G)(2) (“[t]he appellate court‘s standard for review is not whether the sentencing court abused its discretion“).R.C. 2953.08(G)(2) also does not state that an appellate court [must] give intermediate or even minimal deference to a trial court‘s consecutive-sentence findings by applying a “substantial evidence” or a “clearly erroneous” standard of review.7 [Footnote sic.] Rather, the standard of appellate review for consecutive sentences is exactly whatR.C. 2953.08(G) states—that unless the appellate court clearly and convincingly finds that the record does not support the trial court‘s findings, it may not reverse or modify the trial court‘s imposition of consecutive sentences. As we have previously stated and repeated: “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.
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,”
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
Thus, when viewed in its proper context, the deference that a trial court‘s consecutive-sentence findings receive comes from the language of
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
(First emphasis added.) Gwynne, ___ Ohio St.3d ___, 2022-Ohio-4607, ___ N.E.3d ___, at ¶ 18-23.
{¶ 72} Indeed, the lead opinion undermines its position that
{¶ 73} The lead opinion also disagrees with the December 23, 2022 majority opinion‘s determination that
The majority fails to review Gwynne‘s sentence
{¶ 74} Four justices of this court have chosen to grant reconsideration of this court‘s December 23, 2022 majority opinion, which did nothing more than remand this matter to the Fifth District—in light of the much-needed clarifications identified in that opinion regarding the application of
{¶ 75} Regarding this single-paragraph analysis of the central issue, although the lead opinion mentions some facts and evidence from the record, it does not attempt to explain how those facts or evidence concern the findings made by the trial court under
{¶ 76} Indeed, the lead opinion seems to have purposefully overlooked aspects of the record that cut strongly against the trial court‘s imposition of a 65-year aggregate prison term. These include the trial court‘s recognition at sentencing that Gwynne was “in the low to moderate risk category for likelihood of reoffending” and its observation that “[o]ne factor making this a less serious set of felonies [is] the lack of physical harm to other persons.” It is hard to understand how the trial court could have reached the conclusion that a series of consecutive prison terms amounting to a 65-year aggregate prison term was necessary to punish Gwynne or to protect the public from future crime, and also not disproportionate to her misconduct, after acknowledging that such mitigating factors were present in her case. Those factors would seem to definitively rule out any concerns that Gwynne is that rare but extremely dangerous type of offender for whom a 65-year prison term is warranted. Other factors demonstrating that the imposition of consecutive sentences amounting to a 65-year aggregate term was unnecessary and disproportionate include Gwynne‘s acceptance of responsibility for her crimes—by pleading guilty to the offenses and by apologizing to her victims in open court—and the fact that the parties and the court were in agreement that the items she stole often had no monetary value whatsoever or were of only limited monetary value, a point demonstrated by the court‘s restitution order of less than $10,000.
{¶ 77} Although it is undoubtedly true that Gwynne‘s criminal actions spanned a period of several years and that her conduct was aimed at a vulnerable population, it is also true that Gwynne had no notable
{¶ 78} What is more, the lead opinion seems to have created an entirely new standard for an appellate court‘s reversal or modification of consecutive sentences under
{¶ 79} Using this case as an example, it is entirely possible and reasonable for an appellate court to firmly believe that the record does not support the finding that “consecutive service is necessary to protect the public from future crime or to punish the offender,” see
{¶ 80} This case presents several issues of great public importance, which is why the court accepted it for review. One of the most important issues is what appellate review of consecutive sentences should entail under
TRAPP and BRUNNER, JJ., concur in the foregoing opinion.
BRUNNER, J., dissenting.
INTRODUCTION
{¶ 81} I join Justice Stewart‘s dissenting opinion. I write separately to emphasize a simple point—
ANALYSIS
{¶ 82} In Ohio, it is presumed by statute that prison terms are to be imposed concurrently, see
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:
(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.
(Emphasis added.)
{¶ 83} Today, the lead opinion essentially decides that a trial court need not really consider the aggregate term of the consecutive sentences to be imposed when applying
{¶ 84} There is no dispute that here, the trial court recited the statutory findings in
{¶ 85} Gwynne argues—albeit largely in the context of her Eighth Amendment argument—that her sentence was grossly disproportionate to the seriousness of her conduct. Comparing sentences received by other offenders and considering Gwynne‘s actual convictions, it is difficult to disagree with her argument.
{¶ 86} Offenders in cases involving crimes similar to Gwynne‘s have uniformly received sentences amounting to a fraction of what Gwynne received. In State v. Boswell, 6th Dist. Erie No. E-18-053, 2019-Ohio-2949, the defendant had defrauded 13 elderly persons of over $60,000 and was facing 20 counts of felony theft from the elderly, two counts of attempted felony theft from the elderly, and one count of engaging in a pattern of corrupt activity. Id. at ¶ 2-3. The defendant agreed to plead guilty to two counts of fourth-degree felony theft, each of which carried a maximum prison sentence of 18 months. Id. at ¶ 4. In exchange, the prosecution recommended a sentence of community control. Id. But, citing the defendant‘s disingenuous expressions of remorse and his threatening behavior toward some of his elderly victims, the trial court imposed two 17-month sentences, to be served consecutively: a 34-month aggregate sentence that was just two months shy of the maximum. Id. at ¶ 5-14. The sentence was affirmed on appeal. In State v. Knox, 2d Dist. Montgomery No. 25774, 2015-Ohio-4198, the defendant was facing 21 counts of burglary and two lesser offenses for entering 24 homes to steal copper pipes to finance his heroin addiction. Id. at ¶ 3. He pled guilty to all the charged offenses and, despite a prior record of burglaries and thefts, received an aggregate sentence of ten and a half years. Id. at ¶ 3-4, 7. And in State v. Lynch, 12th Dist. Butler No. CA2017-12-182, 2018-Ohio-3849, the defendant had broken into several homes, stealing “money, jewelry, clothing, and other valuable property” and was charged with nine counts of burglary, four counts of petty theft, three counts of theft, one count of possessing criminal tools, and one count of obstructing official business. Id. at ¶ 2. He pled guilty to nine burglary charges and was sentenced to nine years in prison, one year per offense. Id. at ¶ 3. The sentence was affirmed on appeal. Id. at ¶ 16-17.
{¶ 87} Conversely, cases in which offenders have received prison sentences of 65 years without a life tail are rare, and they almost always involve rape, kidnapping, torture, or other violent and heinous behavior. See, e.g., State ex rel. Husband v. Shanahan, 157 Ohio St.3d 148, 2019-Ohio-1853, 133 N.E.3d 467, ¶ 2 (petitioner had been convicted of aggravated burglary, abduction, and rape and received a sentence of 65 years), overruled on other grounds by State ex rel. Parker Bey v. Byrd, 160 Ohio St.3d 141, 2020-Ohio-2766, 154 N.E.3d 57; State v. Powell, 2d Dist. Montgomery No. 29097, 2022-Ohio-1343, ¶ 2-5, 46 (defendant convicted of kidnapping and repeatedly raping a teenage hitchhiker while threatening her with a knife was sentenced to 15 to 65 years). In one case in which a defendant received a prison sentence of 65 to 70 and a half years, the court described the defendant‘s conduct as follows:
In August 2019, [the defendant] was out on bond for previous charges related to domestic violence against * * * the mother of his children, and a subsequent police chase and standoff. On or about August 27, 2019, [the defendant] waited with a knife for [the mother of his children] to return to her residence. She arrived home with three minor children. [The defendant] confronted [her] with the knife and forced her into the residence. [The defendant] also made entry into the residence and locked the children in a bedroom. Over the next several hours [the defendant] terrorized [the mother of his children] and severely injured her. He laughed at her, belittled her, and threatened to murder their five-year-old daughter in front of her. The situation eventually led to a police standoff, which lasted for some time. [The defendant] used [the mother of his children] as a shield during the standoff. He stripped [her] naked, dragged her down the stairs by her hair, kicked her repeatedly, choked her until she lost consciousness, deeply cut her face with a knife, and then urinated on her injuries. The deep knife injury to [her] face, from her temple to jawline, caused serious lacerations that resulted in disfigurement. He nearly caused [her] death due to blood loss.
State v. Riley, 11th Dist. Trumbull No. 2020-T-0063, 2021-Ohio-1367, ¶ 6.
{¶ 88} What Gwynne did strikes a nerve because of the ages and vulnerability of the victims; her conduct caused much more harm than a single run-of-the-mill theft would have because of its extensive nature, the vulnerability of her victims, and the personal meaning of the items taken. She took with deception what she had no right to take, and her thefts caused emotional and financial harm to fragile, elderly people. The victims and their families did not need this, nor should they have had to experience it. Nevertheless, Gwynne did not commit violence.
{¶ 89} And what Gwynne did pales in comparison to the nature of the crimes that generally result in a 65-year prison term; her aggregate sentence is vastly longer than those that are typically imposed for multiple nonviolent theft and even burglary offenses. This type of analysis is necessary for justice. This is what a proportionality analysis looks like. And it simply cannot be coherently accomplished without considering the actual, aggregate prison term to be imposed.11
{¶ 90} While the record shows that some number of consecutive sentences would not be “disproportionate to the seriousness of [Gwynne‘s] conduct,” what is equally clear is that stacking so many consecutive sentences to reach an aggregate sentence of 65 years is disproportionate to both the seriousness of her conduct and any threat she poses to the public.
{¶ 92} Finally, it should be noted that
CONCLUSION
{¶ 93} On the facts of this case, it appears to be undisputed that no one offense Gwynne committed justified a long sentence. There is no question that she stole personal items of great meaning from highly vulnerable victims. But she committed no violence and the things she stole were (with some exceptions) not especially costly. Thus, the facts of Gwynne‘s case incisively show that when an offender commits many offenses, each of which is legally punishable by only a
{¶ 94} The fact that an overall course of criminal conduct may be proportional to stacking some number of sentences consecutively is not equivalent to finding that all of the sentences for every offense should be imposed consecutively to one another. In some cases, where only a few very serious offenses are at issue, this may be a distinction without a difference. But in a case like Gwynne‘s, with many less serious offenses at issue, the distinction between requiring some sentences to be served consecutively and all sentences to be served consecutively is stark. I would continue to hold, as this court did in Gwynne IV, that
{¶ 95} The trust that the public places in judges to make decisions in line with intangible concepts such as caring for a community‘s collective conscience cannot be quantified or overstated. When judges insert their own personal experiences or opinions to reach and impose a “shocking” sentence that overall is disproportionate to the seriousness of the conduct and the danger to the public, justice is maimed. Ohio‘s citizens expect justice to be fair. Judges are given leeway under the state‘s sentencing laws to ensure that fairness. Because the new, post-reconsideration lead opinion does not consider this, and for the reasons discussed in this dissent and ably discussed in Justice Stewart‘s dissenting opinion, I dissent from the judgment of the post-reconsideration lead opinion that affirms Gwynne‘s original, lengthy sentence.
TRAPP, J., concurs 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.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Daniel T. Van, Assistant Prosecuting Attorney, in support of appellee‘s motion for reconsideration for amicus curiae Cuyahoga County Prosecutor‘s Office.
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.
Notes
To begin, had the author of the opinion concurring in judgment only voted to allow the additional briefing the state requested as part of its request for reconsideration, there would be a majority vote to issue an order granting additional briefing. Problem solved.
Second, that the PSI was not included in the record on appeal is not something that the appellate court appeared to be concerned about, nor did it view it as something that inhibited its ability to review Gwynne‘s sentences under
[A]lthough the PSI has not been included for our review, the trial court at the sentencing hearing indicated appellant‘s prior record contained only misdemeanors and those were “very minor ones,” and “[appellant] had no record of juvenile delinquency activity.” * * * Additionally, the court indicated that “the computerized risk assessment tool,” (presumably in the PSI) “put the Defendant in the low to moderate risk category for likelihood of reoffending.”
(Brackets sic.) Gwynne, 5th Dist. Delaware No. 16 CAA 12 0056, 2017-Ohio-7570, at ¶ 27. In other words, the appellate court appears to have been able to determine enough about the PSI from the remaining record evidence to draw conclusions about what the PSI contains and how it does, or does not, support the sentences imposed. Perhaps the opinion concurring in judgment only is correct that it would be error for an appellate court to conduct its review under
Such inconsistencies aside, the missing PSI is, for all intents and purposes, a nonissue at the moment. That is because this court‘s December 23, 2022 majority opinion in this matter remanded the case to the court of appeals for further consideration.
Lastly, and perhaps most importantly, the author of the opinion concurring in judgment only says that he “reserve[s] judgment” to decide matters raised in the lead and dissenting opinions. Opinion concurring in judgment only at ¶ 44. But if the authoring justice were reserving judgment, and indeed exercising judicial restraint, a vote to reconsider this court‘s December 23, 2022 majority opinion in this case would not be appropriate. Instead, this outcome-driven opinion simply serves to perpetuate confusion in the law and, ultimately, ensure that Susan Gwynne serves the remainder of her life-long sentence without further appellate review. The author of the opinion concurring in judgment only could indeed reserve judgment on the questions of law addressed by the lead and dissenting opinions here, while also exercising judicial restraint, by denying reconsideration in this matter and waiting for State v. Glover, Supreme Court case No. 2023-0654, to answer the relevant questions before the court, see 170 Ohio St.3d 1507, 2023-Ohio-2664, 213 N.E.3d 716.