An Ohio appeals court used the wrong state laws to guide its decision to reduce the prison
sentence of a Delaware County woman from 65 years to 15 years for stealing thousands of items from nursing home and assisted-living residents, the Ohio Supreme Court ruled today.

In a split decision, the Supreme Court reversed the Fifth District Court of Appeals’ modified sentence it imposed on Susan Gwynne, and remanded the case to the court of appeals to use the “correct analysis.”

Writing the Court’s lead opinion, Justice Melody J. Stewart stated the appeals court followed laws to determine the appropriate length of a single sentence when it was reviewing consecutive sentences imposed by the trial court. It should have used a different law that instructs appeals courts on how to evaluate consecutive sentences, the Court determined.

Chief Justice Maureen O’Connor and Justice Judith L. French joined Justice Stewart’s opinion.

Justice Sharon L. Kennedy concurred in judgment only, writing that the appeals court, under the state laws it cited, had no authority to overrule the trial court’s sentence. However, the appeals court still could consider Gwynne’s argument that her sentence violated her constitutional right against cruel and unusual punishment. Justice R. Patrick DeWine joined Justice Kennedy’s decision.

Justice Patrick F. Fischer concurred in judgment only without a written opinion.

Justice Michael P. Donnelly dissented, stating the majority of the Court overlooked a provision in state law that allows the appeals court to proceed as it did. He stated he feared today’s decision will have the unintended consequence of limiting appellate review of “excessive and disproportionate sentences” levied by trial courts.

Former Nurse’s Aide Steals Items
Over the course of eight years, Gwynne stole jewelry and personal memorabilia from 46 residents of nursing homes and assisted living facilities while she was employed as a nurse’s aide, or pretended to be employed as an aide.

A grand jury indicted her on 86 felony counts, including 31 counts of second-degree burglary, and 15 misdemeanor counts of receiving stolen property. Gwynne and Delaware County prosecutors entered a plea agreement in which Gwynne agreed to plead guilty to 31 felony burglary and theft counts and the 15 misdemeanors. The remaining 55 felony counts were dismissed. She agreed to pay restitution and waived her right to appeal.

The trial court imposed prison sentences ranging from one to three years for each felony count and ordered the sentences to run consecutively for a total 65-year sentence.

Despite stating in the plea agreement that she would not appeal, Gwynne, who was 55 years old at the time of sentencing, appealed to Fifth District Court of Appeals. She argued two points: the trial court’s sentence was contrary to Ohio’s sentencing law, and it violated the Eighth Amendment to the U.S. Constitution’s ban on cruel and unusual punishment.

The appeals court determined the sentence did not comply with the purposes and principles of Ohio’s felony sentencing law and characterized the prison term as a “life sentence.” It vacated some of the consecutive sentences, resulting in a reduced 15-year sentence. The appeals court did not address her constitutional rights violation argument.

The Delaware County Prosecuting Attorney’s Office appealed the decision to the Supreme Court, arguing the Fifth District had no jurisdiction to consider Gwynne’s appeal because she agreed not to appeal as part of her plea bargain. The prosecutors also argued the appellate court could not adjust the trial court sentence because the trial court made the appropriate findings to impose the 65-year term.

Court Can Decide Case, but Followed Wrong Laws
When Gwynne appealed her sentence, the prosecutors did not ask the Fifth District to dismiss the appeal based on the plea agreement and it did not mention the agreement in the merit brief it filed with the court. The Supreme Court ruled that a plea agreement cannot waive the appeals court’s jurisdiction to hear the case, and only the legislature can determine which cases the appeals court can consider. Because the prosecutors failed to raise the issue at the appeals court level, the Supreme Court ruled the state forfeited its chance to argue that the appeals waiver in the plea agreement should be enforced.

Justice Stewart explained that when the Fifth District considered Gwynne’s appeal, it relied on the Supreme Court’s 2014 State v. Marcum decision for how to analyze the case. The Marcum decision stated that an appellate court should use the factors in R.C. 2929.11 and R.C. 2929.12 to determine if the trial court issued the appropriate sentence and whether to vacate or modify the sentence.

The lead opinion noted those two statutes apply to a “single count” felony sentence and those laws are used to determine whether the trial court examined all the appropriate factors. Gwynne did not receive a maximum sentence for any of the 31 felonies, but she argued that running her sentences consecutively was “contrary to law.” The Court stated the Marcum decision does not apply to Gwynne’s circumstances and that the Fifth District was wrong to use it to guide the decision to change her sentence.

Other Laws Consider Consecutive-Sentence Challenges
Gwynne cited R.C. 2929.14(C)(4) when challenging the overall length of her sentence. That provision allows for offenders to serve multiple prison terms consecutively if the trial court “finds that the consecutive service is necessary to protect the public” and that the sentences “are not disproportionate to the seriousness of the offender’s conduct.”

The lead opinion stated that given Gwynne’s circumstances, her only avenue for appeal was to make an argument under R.C. 2953.08(G)(2)(a). That law allows a court of appeals to increase, reduce, or modify a sentence if it finds the “record does not support” the trial court’s findings made using R.C. 2929.14(C)(4) — the law that Gwynne cited in her appeal.

“While R.C. 2953.08(G)(2)(a) clearly applied to consecutive-sentencing review, R.C. 2929.11 and R.C. 2929.12 both clearly apply only to individual sentences,” the opinion stated.

The Fifth District determined that Gwynne’s consecutive sentences were “appropriate” and “warranted,” but it used the wrong statutory provision to make that determination, the Court stated.

The Supreme Court directed the Fifth District to analyze Gwynne’s consecutive sentences under R.C. 2953.08(G)(2).

“When a court of appeals employs the wrong analysis, we ordinarily remand the cause and instruct the court to use the correct analysis,” the opinion concluded.

Concurrence Asserts Ruling Confuses Lower Courts
In her concurring opinion, Justice Kennedy maintained the lead opinion wrongly directed the Fifth District to analyze Gwynne’s consecutive sentences for compliance with R.C. 2929.14(C)(4). She wrote that the issue of the imposition of consecutive sentences was not before the Court and to remand “to review Gwynne’s consecutive sentences is nothing more than an ‘exercise of raw judicial power.’”

The concurring opinion also noted that the Fifth District had conducted the R.C. 2929.14(C)(4) consecutive sentence review that is required by R.C. 2953.08(G)(2) and found that consecutive sentences were appropriate and warranted and imposed consecutive sentences itself. She stated that the lead opinion’s decision to review consecutive sentences was at loggerheads with the Court’s jurisprudence and “will create confusion within and among Ohio’s trial courts and courts of appeals.”

Justice Kennedy wrote that the Fifth District’s error was in vacating some of the consecutively imposed sentences and ordering Gwynne to serve them concurrently. She stated that the Fifth District thought it had the authority to conduct an independent review of the record, and use R.C. 2929.11 and R.C. 2929.12 to modify the consecutively imposed sentences based on a statement from Marcum that is dictum. She wrote that the lead opinion’s failure to recognize the misstatement as dictum will “muddy the waters of Ohio’s sentencing jurisprudence even more.”

However, Justice Kennedy noted that the Fifth District did not rule on Gwynne’s contention that her sentence violated her Eighth Amendment rights, and the concurrence would remand the case to the appeals court to consider only this argument.

Court Majority Eviscerates Meaningful Appellate Review, Dissent States
The one thing that informs the public that “our criminal-justice system is not driven by blind vengeance” is a meaningful and lawful criminal sentence that is proportional to the offender’s conduct, supported by the record, and carefully weighed by complying with all relevant laws, Justice Donnelly stated in his dissent.

The dissent noted that R.C. 2929.11 and R.C. 2929.12 “are the cornerstones of Ohio’s sentencing law and relevant to every criminal sentence imposed by a trial court.” While the lead opinion stated that the court of appeals under R.C. 2953.08(G)(2)(a) could analyze the appropriateness of consecutive sentences, the dissent stated the next section — R.C. 2953.08(G)(2)(b) — allows the appeals court to use R.C. 2929.11 and R.C. 2929.12, which is what the Fifth District did.

The dissent explained that state lawmakers crafted R.C. 2929.11 to ensure the trial court considers the purpose of a felony sentence before imposing a sentence, and that trial courts must consider the factors of the seriousness of the offenses and likely recidivism of the offender presented in R.C. 2929.12 when determining the sentence.

The dissent noted that R.C. 2953.08(G)(2)(b) allows an appeals court to modify a sentence if it finds “that the sentence is otherwise contrary to law.” Because R.C. 2929.11 and R.C. 2929.12 are laws, and Gwynne’s sentence was contrary to those laws, the appeals court had the right to rely on them to reduce Gwynne’s sentence, Justice Donnelly wrote.

The dissent pointed out the absurdity involved in the manner in which Gwynne wound up with her sentence. The prosecutors never indicated at her plea hearing what sentence they would be seeking. At the sentencing hearing, the state asked the court to sentence her for 42 years or at least 2 years. Gwynne’s defense counsel advocated for community control supervised by the probation department. The trial court ended up sentencing her more severely than even the prosecutor requested, issuing her a 65-year sentence.   

The dissent stated today’s decision strips the appellate courts from using R.C. 2929.11 and R.C. 2929.12 to consider a trial court sentence, “essentially eliminating meaningful review of sentences” and taking away “an important check that the General Assembly intended for Ohio’s criminal-justice system.”

2017-1506. State v. Gwynne, Slip Opinion No. 2019-Ohio-4761.

View oral argument video of this case.

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