THE STATE OF OHIO, APPELLANT, v. GWYNNE, APPELLEE.
No. 2017-1506
Supreme Court of Ohio
November 21, 2019
Slip Opinion No. 2019-Ohio-4761
STEWART, J.
Submitted January 8, 2019
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. 2019-OHIO-4761
THE STATE OF OHIO, APPELLANT, v. GWYNNE, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Gwynne, Slip Opinion No. 2019-Ohio-4761.]
Criminal law—State forfeits the right to argue that a court of appeals is barred from reviewing a sentencing appeal when the state does not timely invoke a defendant‘s appeal waiver—
(No. 2017-1506—Submitted January 8, 2019—Decided November 21, 2019)
APPEAL from the Court of Appeals for Delaware County, No. 16 CAA 12 0056, 2017-Ohio-7570.
STEWART, J.
{¶ 1} In this discretionary appeal from a judgment of the Fifth District Court of Appeals, we consider two propositions of law offered by appellant, the state of Ohio, related to the scope of appellate sentencing review. One proposition of law
{¶ 2} We conclude that the state forfeits its right to argue that a court of appeals is barred from reviewing a sentencing appeal when the state does not timely invoke a defendant‘s appeal waiver. We also conclude that Marcum has no application to consecutive-sentencing cases that are governed by
I. PROCEDURAL HISTORY
{¶ 3} Over the course of approximately eight years, Gwynne stole thousands of items of jewelry and personal memorabilia from 46 identified residents of 12 nursing homes and assisted-living facilities while she was employed as (or while pretending to be employed as) a nurse‘s aide.
{¶ 4} A grand jury returned an indictment charging Gwynne with 86 felony counts—31 counts of second-degree burglary, 4 counts of third-degree theft, 12 counts of fourth-degree theft, 27 counts of fifth-degree theft, and 12 counts of fifth-degree possessing criminal tools. The grand jury also charged Gwynne with 15 first-degree-misdemeanor counts of receiving stolen property.
{¶ 5} Gwynne entered into a written plea agreement in which she agreed to plead guilty to 17 counts of second-degree burglary, 4 counts of third-degree theft, 10 counts of fourth-degree theft, and the 15 misdemeanor counts of receiving stolen property in exchange for the state dismissing the other 55 counts. She agreed to
{¶ 6} Gwynne appealed to the Fifth District Court of Appeals and argued that the trial court erred by imposing a sentence that was contrary to Ohio‘s sentencing statutes and that her aggregate 65-year sentence amounted to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The court of appeals determined that the sentencing court considered the applicable sentencing statutes and made all the required statutory findings. 2017-Ohio-7570, ¶ 12. Nevertheless, the court of appeals analyzed Gwynne‘s 65-year aggregate sentence under
A. Forfeiture
{¶ 7} Although Gwynne agreed to plead guilty and to waive her right to appeal, “including, but not limited to the grounds listed in [R.C.] 2953.08,” the state did not ask the court of appeals to dismiss Gwynne‘s direct appeal on that basis, nor did it mention this aspect of the plea agreement in its merit brief filed in the court of appeals. The court of appeals raised the issue on its own, stating: “Because there was no agreement as to sentence in this matter, we find [that Gwynne] has not waived her right to appeal her sentence.” 2017-Ohio-7570 at ¶ 9, fn. 1. The state maintains that because Gwynne‘s waiver of her right to appeal deprived the court of appeals оf subject-matter jurisdiction, the Fifth District‘s decision is void.
{¶ 8} The parties to a plea agreement may neither waive nor confer subject-matter jurisdiction on a court of appeals. A court of appeals
shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district, except that courts of appeals shall not have jurisdiction to review on direct appeal a judgment that imposes a sentence of death.
Ohio Constitution, Article IV, Section 3(B)(2); see also In re M.M., 135 Ohio St.3d 375, 2013-Ohio-1495, 987 N.E.2d 652, ¶ 21.
{¶ 9}
{¶ 10} The state forfeited its argument that Gwynne should be held to the terms of the plea bargain because it failed to bring that issue to the attention of the court of appeals. An argument is forfeited when it is not timely asserted. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 21. The purpose of the forfeiture rule is to encourage parties to call the court‘s attention to an error at a time when the error can be “avoided or corrected.” State v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986), quoting State v. Childs, 14 Ohio St.2d 56, 236 N.E.2d 545 (1968), paragraph three of the syllabus. The forfeiture rule is thus one that fosters judicial economy. See State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 23.
{¶ 11} The appellate rule of forfeiture applies to any party claiming error, including the state. See State v. Jones, 7th Dist. Mahoning No. 10 MA 118, 2011-Ohio-3404, ¶ 23. Had the state filed in the court of appeals a motion to dismiss Gwynne‘s appeal before briefing commenced, a favorable ruling on the motion (and we express no opinion on the merits of such a motion) would have prevented the appeal from going forward, thus promoting judicial economy.
{¶ 12} We also reject the state‘s assertion that the court of appeals should have enforced Gwynne‘s appeal waiver on its own initiative. The duty to advocate for enforcing rights arising under the plea agreement belongs to the state; it was not incumbent on the court of appeals to raise the issue. Accordingly, we will not consider whether Gwynne waived her right to appeal.
{¶ 13} The substantive sentencing issue raised by the state is whether the court of appeals should have reviewed Gwynne‘s consecutive sentences based on the principles and purposes of felony sentencing set forth in
{¶ 14} The court of appeals reviewed Gwynne‘s sentence under
We note that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
See 2017-Ohio-7570 at ¶ 19-20.
{¶ 15} Paragraph 23 of Marcum has no application to this case. Marcum involved a challenge to the length of a nonmaximum sentence for a single count. Marcum at ¶ 4. Gwynne did not challenge the length of any of her felony sentences—none of which were maximum terms—that she received for the individual counts. Nor did Gwynne argue that her consecutive sentences were “contrary to law,” because, as the court of appeals noted, thе sentencing court made
{¶ 16} Given the circumstances of this case, Gwynne‘s only avenue for relief on appeal was to make an argument under
{¶ 17} While
{¶ 18} The Fifth District erred by reviewing Gwynne‘s consecutive sentences under
{¶ 19} The court of appeals determined that Gwynne‘s consecutive sentences were “appropriate” and “warranted,” but it used the wrong statutory provision to make that determination. When a court of аppeals employs the wrong analysis, we ordinarily remand the cause and instruct the court to use the correct
{¶ 20} We therefore reverse the Fifth District‘s judgment and remand this cause to that court with instructions to cоnsider Gwynne‘s assignment of error on consecutive sentences using the standard of review set forth under
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and FRENCH, J., concur.
KENNEDY, J., concurs in judgment only, with an opinion joined by DEWINE, J.
FISCHER, J., concurs in judgment only.
DONNELLY, J., dissents, with an opinion.
{¶ 21} To get to its result—for no other reason than because it wants to go there—the lead opinion exceeds its authority by ignoring our precedent, going beyond the propositions of law and legal issues before us, purposefully misreading the Fifth District‘s opinion, and allowing the continued propagation of incorrect dicta. Therefore, I write separately.
{¶ 22} I agree with the lead opinion that appellant, the state of Ohio, has forfeited its argument that appellee, Susan Gwynne, waived appellate review of her sentence and that
The lead opinion ignores this court‘s sentencing jurisprudence
{¶ 23} Today‘s lead opinion will neither bring clarity to the law nor provide guidance to lower tribunals because it is at loggerheads with our decision in State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. Indeed, the lead opinion concludes:
We interpret the court of appeals’ decision as stating that while Gwynne had conceded that the sentencing judge made the requisite
R.C. 2929.14(C)(4) findings to order consecutive sentences, she was contesting whether the record supported those findings. We think that this interpretation is warranted given the court of appeals’ statement that Gwynne “argues the trial court‘s findings were
erroneous, and consecutive sentence were not appropriate,” 2017-Ohio-7570 at ¶ 17.
Lead opinion at ¶ 19.
{¶ 24} In Bonnell, we considered the issue whether “the trial court must make the required findings enumerated in
Consecutive sentences are not before this court
{¶ 25} This court‘s remand order requiring further consideration of Gwynne‘s consecutive sentences is also beyond the authority of this court. We accepted the state‘s appeal on just two propositions of law. The first proposition of law asked this court to determine whether
{¶ 26} Gwynne did not file a cross-appeal challenging the court of appeals’ finding that “consecutive sentences [were] appropriate,” 2017-Ohio-7570 at ¶ 17,
Gwynne‘s assignment of errors before the court of appeals
{¶ 27} In evaluating Gwynne‘s first assignment of error, the court of appeals stated that Gwynne “does not * * * argue the court failed to make the appropriate findings. Instead, she disagrees with the trial court‘s seriousness and recidivism findings pursuant to
{¶ 28} The phrase “as well as” indicates that the court of appeals interpreted Gwynne‘s first assignment of error as asserting two separate arguments. In her first argument, Gwynne asserted that the trial court‘s seriousness and recidivism findings pursuant to
{¶ 29} The court of appeals conducted the
We agree, however, with the trial court‘s findings relating to the necessity of a prison sentence, and that consecutive sentences are warranted.
We therefore modify appellant‘s sentence pursuant to
R.C. 2953.08(G)(2) as follows:In regard to the offenses of burglary in violation of Section
2911.12(A)(2) of the Ohio Revised Code, each being a felony of the second degree as charged in Counts 1, 4, 6, 17, 21, 23, 25, 28, 30, 32, 42, 45, 53, 63, 69, 71, and 88, we order that appellant be sentenced to 3 years on each count as previously ordered by the trial court. However, we order that Counts 1, 4, and 6 be served consecutively to each other and concurrently with Counts 17, 21, 23, 25, 28, 30, 32, 42, 45, 53, 63, 69, 71, and 88 for a term of nine years of incarceration for these counts.In regard to the offenses of theft in violation of Section
2913.02(A)(1) of the Ohio Revised Code, each being a felony of the fourth degree as charged in Counts 10, 13, 16, 20, 35, 40, 48, 50, 52, and 56, we order that appellant be sentenced to 12 months on each count as previously ordered by the trial court. However, we order that Counts 10, 13, and 16 be served consecutively to each other and
concurrently with Counts 20, 35, 40, 48, 50, 52, and 56, for a term of three years of incarceration for these counts.
In regard to the offenses of theft in violation of Section
2913.02(A)(1) of the Ohio Revised Code, each being a felony of the third degree as charged in Counts 37, 58, 61, and 67, we order that appellant be sentenced to 12 months on each count as previously ordered by the trial court. However, we order that Counts 37, 58, and 61 be served consecutively to each other and concurrently with Count 67, for a term of three years of incarceration for these counts.In regard to all misdemeanor counts of receiving stolen property, we make no modification.
Finally, we order that Counts 1, 4, 6, 10, 13, 16, 37, 58, and 61 be served consecutively to each other for an aggregate term of 15 years of incarceration. Given the facts of this case, we find 15 years incarceration consistent with the principles and purрoses of sentencing.
2017-Ohio-7570 at ¶ 31-37.
{¶ 30} Surely, an appellate court need not chew its cabbage twice—particularly once the appellate court has enunciated the appropriate standard of review and expressly stated why it chose to modify a defendant‘s consecutive sentences pursuant to
{¶ 31} Here is how the Fifth District got to its conclusion that it was permitted to vacate some of the “warranted” consecutively imposed sentences. In reviewing felony sentences, the court of appeals stated that it applies the standard of review set forth in
That section specifies that an appellate court may increase, reduce, modify, or vacate and remand a challenged felony sentence if the court clearly and convincingly finds that “the record does not suppоrt the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant” or “the sentence is otherwise contrary to law.”
(Emphasis added.) 2017-Ohio-7570 at ¶ 18, quoting
{¶ 32} Thereafter, the Fifth District relied on the following superfluous paragraph from this court‘s decision in State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231:
“We note that some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the
appellate court finds by clear and convincing evidence that the record does not support the sentence.”
2017-Ohio-7570 at ¶ 19, quoting Marcum at ¶ 23.
{¶ 33} The Fifth District then held that “‘an appellate court may increase, reduce, or otherwise modify a sentence * * * if the record does not support the sentencing court‘s findings under * * *
{¶ 34} After defining and applying the clear-and-convincing-evidence standard, the court of aрpeals found Gwynne‘s 65-year aggregate sentence to be contrary to law. Id. at ¶ 21. Using as guideposts for its analysis the principles and purposes of felony sentencing as set forth in
{¶ 35} The court of appeals did not lose its way when reviewing Gwynne‘s consecutive sentences pursuant to
{¶ 37} As explained above, the court of appeals held that although running some of Gwynne‘s sentences consecutively was appropriate, “the record [did] not support the trial court‘s sentence under
Marcum is dictum
{¶ 38} The problem with the court of appeals’ reliance on paragraph 23 in Marcum, in support of its ability to review the trial court‘s application of the purposes and principles of sentencing in
{¶ 39} Marcum focused on a certified-conflict question that asked, “[D]oes the test outlined by the [c]ourt in State v. Kalish, [120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124] apply in reviewing felony sentences after the passage of
{¶ 40} In reaching that decision, this court described the history of
{¶ 41} After we declared in Marcum that
{¶ 42} Beyond the lead opinion‘s attempt to distinguish Marcum is its radical step to discredit the entire authority of Marcum under these facts. The lead opinion concludes that “[a]ny use of the analysis that we provided in Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 123, is outside the scope of this appeal.” (Emphasis added.) Lead opinion at ¶ 18. Really? What about our determination that ”
{¶ 43} If the lead opinion would simply acknowledge that the language in paragraph 23 of Marcum is dictum and instruct the court of appeals that it should not follow that paragraph of Marcum, we could make the expedient determination that
Conclusion
{¶ 44} To bring clarity to the law and aid Ohio‘s trial courts and courts of appeals, I would (1) hold that paragraph 23 in Marcum is dictum, (2) hold that
DEWINE, J., concurs in the foregoing opinion.
DONNELLY, J., dissenting.
{¶ 45} I respectfully dissent. There is only one thing that informs the public that our criminal-justice system is not driven by blind vengeance, and that is a meaningful and lawful criminal sentence: a sentence that is clearly and convincingly supported by the record, proportional to a defendant‘s conduct, and carefully weighed in accordance with all relevant law.
I. Appellate Review under R.C. 2953.08(G)(2)
{¶ 46} Today‘s lead and concurring opinions conclude that
A. Statutory Principles
{47} Before imposing a sentence on a defendant, a trial court must consider the purposes of felony sentencing set forth in
{48} The lead and concurring opinions appear to be fixated on State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, and what that decision does and does not say. Yet, Marcum simply acknowledged that a court of appeals has the authority to review whether a felony sentence comports with the purposes of fеlony sentencing, see
{49} The
{50}
{51}
Upon the hearing of an appeal other than an appeal from a mayor‘s court, the appellate court may affirm the judgmеnt or reverse it, in whole or in part, or modify it, and order the accused to be discharged or grant a new trial. The appellate court may remand the accused for the sole purpose of correcting a sentence imposed contrary to law, provided that, on an appeal of a sentence imposed upon a person who is convicted of or pleads guilty to a felony that is brought under section 2953.08 of the Revised Code, division (G) of that section applies to the court.
{52} Under
{53} In this case, Gwynne argued on appeal that her sentence was contrary to law because it was imposed in contravention of Ohio‘s sentencing statutes, specifically
{54}
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 appealеd under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
(Emphasis added.)
{55} In State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 21, we acknowledged that “[b]oth the state and the defendant have an appeal as of right if a sentence is ‘contrary to law.‘”
{56} Nothing in
{57} And the sentencing considerations prescribed by
{58} When Gwynne was sentenced,
{59} Separately,
{60} If a felony sentence fails to comport with the sentencing purposes set forth in
{61} Indeed,
{62} Nothing in the text of
B. Appellate Review of Consecutive Sentences under R.C. 2953.08
{63} The lead opinion concludes that when a court of appeals is reviewing an appeal of consecutive sentences, the appellate court may not consider
{64} The lead opinion states that although Gwynne did not challenge her consecutive sentences for being contrary to law, she “challenged the overall length of her sentence based on the sentencing court‘s decision to run the sentences on each individual count consecutively, as permitted by
{65} But nothing in the text of
{66} The lead opinion suggests that
{67} We have repeatedly held that felony-sentencing statutes must be read as a whole. State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, 17 N.E.3d 528, ¶ 12. R.C. Chapter 2929 spеcifies which criminal offenses are subject to mandatory sentences and which criminal offenses are subject to discretionary sentences and what a trial court must do before imposing consecutive sentences. And
{68} Beyond that, in my view, the lead opinion‘s suggestion that the legislature intended for
{69} In particular,
If the sentencing court was required to make the findings required by division (B) or (D) of section 2929.13 or division (I) of section 2929.20 of the Revised Code, or to state the findings of the trier of fact required by division (B)(2)(e) of section 2929.14 of the Revised Code, relative to the imposition or modification of the sentence, and if the sentencing court failed to state the required findings on the record, the court hearing an appeal under division (A), (B), or (C) of this section shall remand the case to the sentencing court and instruct the sentencing court to state, on the record, the required findings.
(Emphasis added.)
{70} Closely tracking that language,
{71} In short,
{72} I am further mystified by this court‘s decision to remand this case to the court of appeals to apply the correct standard of review for consecutive sentencing, lead opinion at ¶ 19. The court of appeals in fact upheld the trial court‘s consecutive-sentence findings under
{73} I regret to say that the lead opinion‘s approaсh to this case will not give Ohio‘s trial or appellate courts the clear and focused guidance that should be provided to every court that has the solemn duty to impose and review criminal sentences in this state.
II. Gwynne‘s Sentence is Contrary to Law
{74} If you are interested in this case, and I am assuming you are to have read this far, then a review of the lead and concurring opinions causes me to fear that in a shortsighted rush to reach a copasetic result, we have turned a blind eye and a deaf ear to the issue before us as presented by the facts of this case.
{75} Gwynne‘s crimes caused pain and anguish to her vulnerable, elderly victims and their families. Sentimental items were stolen. Gwynne‘s crimes did not occur on one isolated date or at one isolated location. Her criminal conduct occurred over the span of approximately eight years. And the police were able to
{76} Certainly, the number of victims is material, and the extent of material harm that was suffered by those victims is likewise relevant.
{77} For the most part, according to the record, Gwynne did not sell or destroy her victims’ possessions. Insteаd, she accumulated over 3,000 articles of stolen property and kept them in seven large storage bins and an overflowing dresser in her home. The items that Gwynne stole—i.e., mementos such as dog tags, military medals, family photos, and baby bracelets—are not items commonly targeted by thieves for monetary gain. Additionally, for the property that could not be recovered, Gwynne agreed to pay restitution in the amount of $9,610. While Gwynne may very well have been a hoarder or suffering from some serious mental illness, she hardly strikes me as a hardened criminal who needs to stay in prison until she is 120 years old in order to protect the public and that a 65-year prison term is the best use of our limited state and local resources.
{78} Accepting responsibility for her crimes, Gwynne entered the sometimes opaque process of plea bargaining, and in exchange for pleading guilty, the state offered to reduce the number of charges for which she was indicted. At Gwynne‘s plea hearing, although the trial court stated, “I can sentence you to whatever penalty I wish within the range spelled out in Ohio law for these various offenses,” its colloquy was peppered with the phrases “if sent to prison by me” and “[i]f I did send you to prison,” and the trial court took great care to discuss judicial release, postrelease control, and restitution. This language, combined with the state‘s acquiescence to the preparation of a presentence-investigation report, certainly implied the prospect of a community-control sanction being on the table as well as a lesser prison sentence. In light of what ultimately occurred to Gwynne, those representations most certainly offered false hope to her.
{79} Gwynne pleaded guilty to 17 counts of burglary (felonies of the second degree), 4 counts of theft (felonies of the third degree), 10 additional counts of theft (felonies of the fourth degree), and 15 counts of receiving stolen property (misdemeanors of the first degree).
{80} The state and Gwynne could not agree to a jointly recommended sentence. During the oral argument before this court, Gwynne‘s trial counsel indicated that in the course of pretrial negotiations, he asked the state to agree to recommend an aggregate prison sentence of three to four years but that the state wanted a sentence in the range of 10 to 15 years. If this is true, in its sentencing memorandum, the state inexplicably recommended two wildly divergent sentences: a 42-year sentence (“the minimum prison term on each felony conviction, all served consecutive[ly] to each other“) or two years (“[a]t the very least, [Gwynne] should be sentenced to the minimum sentences on each felony, to be served concurrently“). In contrast, defense counsel advocated for community control or, if a prison term was imposed, concurrent sentences.
{81} Thus, on the date of sentencing, Gwynne arrived in court having no idea whether she would go home that day or die in prison. With no certainty as to what sentence she would receive, Gwynne was like a lamb led to slaughter. Gwynne wound up with a 65-year prison sentence—a 23-year increase over what even the state had recommended—a sentence the court of appeals aptly described as a life sentence for Gwynne, who was 55 at the time of sentencing.4 Gwynne left her sentencing hearing knowing that she would die in prison. Some bargain.
{82} When exactly did this sentence go off the tracks? When did it become acceptable in a “fair and just” legal system that a defendant, who enters into a plea agreement with a reasonable expectation of receiving some kind of
{83} The General Assembly wisely enacted
{84} Taking factors like these into account, the court of appeals determined that “the understandably strong feelings must be tempered by a sanction clearly and convincingly based upon the record to effectuate the purposes of sentencing.” 2017-Ohio-7570, ¶ 30. And the court concluded that the 65-year sentence that the trial court imposed did not do so. In fact, the appellate court found the sentence “disproportionate to the conduct and the impact on any and all of the victims either individually or collectively” and that the sentence “runs the risk of lessening public respect for the judicial system.” Id. The court also stated that “[t]he imposition of a 65 year sentence for a series of non-violent theft offenses for a first-time felon shocks the consciousness. We therefore find by clear and convincing evidence that the record does not support the sentence.” Id.
{85} I agree with the appellate court that a 65-year sentence for a series of nonviolent theft offenses for a first-time felon shocks the conscience and runs the risk of lessening the public‘s respect for Ohio‘s judicial system.
{86} It is unfathomable to me how anyone could conclude that Gwynne‘s sentence was proportional to her conduct. Any attorney practicing criminal law in this state could cite countless examples of defendants who have committed murder or rape and have received far less time in prison. For Gwynne to serve her full sentence, she must live to the age of 120. Her criminal record consisted of a few misdemeanor offenses. None of Gwynne‘s convictions were first-degree felonies. And although her 17 convictions for burglary were second-degree felonies and carried a presumption in favor of a prison term,
{87} I fear for the unintended consequences that today‘s decision will have on defendants who, like Gwynne, receive excessive and disproportionate sentences. Without appellate review of felony sentences in accordance with
{88} We have missed the opportunity to provide clear guidance to the lower courts. Although an individual sentence for an individual offense may not fall outside the statutory range for the offense, the sentence may still be contrary to law if the record does not support the findings the trial court made pursuant to
{89} Today‘s decision vests sentencing courts with complete and unrestrained discretion. It vitiates the General Assembly‘s intent to provide courts with precise guidance for criminal sentencing within clearly defined constraints and for meaningful appellate review of trial courts’ sentencing decisions, see, e.g., Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, at ¶ 10 (when enacting Am.Sub.S.B. No. 2, 146 Ohio Laws, Part IV, 7136 (“S.B. 2“), the legislature accorded meaningful review of sentencing decisions to the appellate courts, which included modifying or vacating sentences that were not clearly and convincingly supported by lower-court records).5 I am keenly aware of the natural state of antagonism that sometimes exists between trial courts and appellate courts. Rarely, if ever, will someone encounter a trial-court judge who enjoys the prospect of having his or her decision scrutinized and possibly reversed. However, every conscientious trial-court judge appreciates the fact that appellate courts have more time to contemplate the record and correct any legal or factual errors that are determined to exist on appeal.
{90} I do not believe that Ohio law precludes appellate courts from reviewing felony prison sentences for compliance with
{91} Regrettably, today‘s decision is not just a defeat for Gwynne‘s appeal, but a defeat for the constitutional right to appellate review as provided by the Ohio Constitution. Contrary to the state‘s position, Gwynne‘s guilty plea did not surrender her right to appellate review. We have. I dissent.
Carol Hamilton O‘Brien, Delaware County Prosecuting Attorney, and Douglas N. Dumolt, Assistant Prosecuting Attorney, for appellant.
David H. Birch, for appellee.
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Christopher D. Schroeder, Assistant Prosecuting Attorney, urging reversal for amicus curiae Cuyahoga County Prosecutor‘s Office.
Zach Klein, Columbus City Attorney, and Lara N. Baker-Morrish, Solicitor General, Columbus Department of Law, urging reversal for amicus curiae Columbus City Attorney Zach Klein.
Russell S. Bensing, urging affirmance for amicus curiae Ohio Association of Criminal Defense Lawyers.
Notes
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, or 2929.18 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.