A trial court properly imposed consecutive sentences when it handed down a 65-year prison term on a former nursing home aide who stole personal items from residents of nursing homes and assisted living facilities in Delaware and Franklin counties, the Supreme Court of Ohio ruled today.

In 2016, Susan Gwynne received an extensive prison term after a Delaware County trial court imposed consecutive sentences, ranging from six months to three years, on 46 theft-related charges. After a series of appeals, the Supreme Court ruled in December 2022 that the sentencing was erroneous. Today, the Court reconsidered its decision and upheld Gwynne’s 65-year sentence.

In today’s lead opinion, Chief Justice Sharon L. Kennedy stated that the prior ruling in the case was wrongly decided. She wrote that last year’s decision was based on an issue not raised by Gwynne in her appeal.

Chief Justice Kennedy explained that the law gives appellate courts limited authority to modify a trial court’s decision to impose consecutive sentences, and that can be done only if the appeals court determines that “the trial court’s findings are clearly and convincingly not supported by the record.” She wrote that the Fifth District Court of Appeals properly concluded that the record supported the trial court’s consecutive sentence findings.

Justices R. Patrick DeWine and Joseph T. Deters joined Chief Justice Kennedy’s lead opinion. Justice Patrick F. Fischer concurred in judgment only with a written opinion, stating he agreed not to overturn Gwynne’s sentence, but for a different reason.

Justice Melody Stewart, who wrote the Court’s majority opinion in 2022, dissented in today’s opinion. Justice Jennifer Brunner joined Justice Stewart’s opinion and wrote a separate dissenting opinion. Eleventh District Court of Appeals Judge Mary Jane Trapp, sitting for Justice Michael P. Donnelly, also joined both Justice Stewart’s and Justice Brunner’s opinions.

Long Sentence Leads to Appeals Court Modification
Between 2008 and 2016, Gwynne stole items from residents while working as a nurse’s aide or pretending to be a nurse’s aide. In 2016, she was charged with 86 felony counts  and several misdemeanors. After negotiations with the Delaware County prosecutor, Gwynne, who was then 55 years old, agreed to plead guilty to reduced charges.

As part of the sentencing process, the trial judge issued findings under R.C. 2929.14(C)(4) and imposed consecutive sentences.

The judge stated 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.” The trial court added that the harm committed by the multiple offenses “was so great or unusual that no single prison term” would “adequately reflect the seriousness” of her conduct.

Gwynne appealed her sentence to the Fifth District Court of Appeals, arguing that the trial court’s findings under R.C. 2929.14(C)(4) were not supported by the record and that her sentence constituted cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution.

In 2017, the Fifth District ruled that although Gwynne’s conduct was serious, the sentence was shocking for a 55-year-old woman who was a nonviolent, first-time offender. The Fifth District agreed that some consecutive sentences were appropriate and reduced her sentence to 15 years in prison.

The Delaware County prosecutor appealed that decision to the Supreme Court, and in 2019 the Court reversed the Fifth District’s judgment. The Court ruled that the Fifth District had followed the wrong laws for modifying a consecutive sentence and directed the appeals court to consider Gwynne’s appeal using the standards set in R.C. 2953.08(G)(2).

Case Returned to Appeals Court, Then Reached Supreme Court Again
In 2021, the Fifth District ruled that the trial court’s findings used to impose consecutive sentences were appropriate, but it still disagreed with the number of consecutive sentences. However, the Fifth District 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.” The appeals court also rejected Gwynne’s cruel and unusual punishment argument.

Gwynne appealed to the Supreme Court, which accepted the case. After the 2022 Supreme Court ruling, the prosecutor asked the Court to reconsider the decision. Today, the Court held that the Fifth District's decision properly affirmed Gwynne’s sentence.

Supreme Court Examined Requirements of Reviewing Consecutive Sentences
In her lead opinion, Chief Justice Kennedy explained that the review of criminal sentences is governed by R.C. 2953.08(G)(2), and that law reflects the fact that “[o]rdinarily, appellate courts defer to trial courts’ broad discretion in making sentencing decisions.” She noted that the statute provides that an appellate court can change the trial court’s sentence if it “clearly and convincingly finds” that the “record does not support the sentencing court’s findings.”

The lead opinion pointed out that in the Court’s 2022 opinion, the majority ruled that the appellate court could do its own independent review of the trial court’s decision rather than deferring to the trial court. The lead opinion today disagreed with that assessment.

The lead opinion examined the trial judge’s statements when imposing consecutive sentences on Gwynne and determined that the Fifth District was correct in not modifying the prison term.

“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,” the lead opinion explained.

The lead opinion stated that Gwynne had engaged in “an approximately eight-year life of crime, stealing countless items of both financial and personal value for some of the most vulnerable members of society – the elderly who were residing in nursing homes and assisted-living facilities.”

The lead opinion concluded that the sentencing law does not require the trial judge to consider the total sentence when imposing consecutive sentences. The chief justice wrote that does not mean the justices joining the lead opinion would impose the same sentence, but the Court cannot rely on its own facts or findings to “second-guess the trial court’s factual findings in support of consecutive sentences.”

Record of Case Incomplete, Concurrence Maintained
In his concurrence, Justice Fischer explained that the court must affirm Gwynne’s sentence because Gwynne never provided the Fifth District with the presentence investigation report, which the trial court relied on to make its findings. He stated the Supreme Court also did not have access to the report, and the parties in the case did not act to supplement the record.

Neither reviewing court could say that “the record does not support” the trial court findings without having the full record, the concurrence stated.

Justice Fischer suggested the Court address the issue of reviewing consecutive sentences through another case – State v. Glover – that is pending before the Court.

Revised Code Gives Appeals Court Authority to Alter Trial Court’s Sentence, Dissent Maintained
In her dissent, Justice Stewart wrote that R.C. 2953.08(G)(2) does not require the appeals court to defer to a trial court’s sentencing findings. She noted that critical to determining how an appeals court reviews a sentence is first to address what is required by trial judges when imposing consecutive sentences under R.C. 2929.14(C)(4). Justice Stewart stated that the lead opinion found the trial court need not determine “whether all of the consecutive sentences are necessary to protect the public or punish the offender and are not disproportionate to the seriousness of the offender’s conduct and the danger the offender poses to the public.”

“That conclusion is astonishing,” Justice Stewart wrote.

She wrote that when the law is read in context with the other portions of the sentencing statutes, the trial court must do more than just find that it is appropriate to impose more than one sentence to run consecutively. It also has to consider the “the sentence to actually be imposed,” she maintained. An appeals court can assess whether the total length of the trial court’s sentence is supported by the record and is authorized to modify the sentence if the court clearly and convincingly finds that the aggregate term is not supported by the record, the dissent stated.

The dissenting opinion noted the trial judge recited materials from the presentence investigation when making its findings, which might be why the appeals court never believed it needed to see the report before making its decision. Based on that report, the trial court indicated that Gwynne presented a low risk of reoffending. Justice Stewart wrote that it’s hard to understand how the trial court could conclude that a 65-year sentence was warranted under such circumstances, particularly since Gwynne was 55 years old when sentenced.

Justice Stewart noted that since no four justices agreed on the reasoning for overturning last year’s decision, it “leaves the law on consecutive sentences unclear, just as it had been for over 25 years.”

Sentence Harms Integrity of Courts, Dissent Asserted
In a separate dissenting opinion, Justice Brunner listed a number of sentences imposed on offenders who committed crimes similar to Gwynne’s and received drastically lesser amounts of prison time. She also noted that trial courts must consider the entire sentence to determine if the punishment is proportional to the crime. She maintained that imprisoning Gwynne for 65 years is “disproportionate to the seriousness of her conduct and any threat she poses to the public.”

“When a judge stacks sentences in a manner that shocks the conscience of the community rather than works to heal it, justice is not demonstrated, and public confidence in the judiciary may be shaken,” Justice Brunner wrote.

2021-1033. State v. Gwynne, Slip Opinion No. 2023-Ohio-3851.

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