State v. Gwynne ( 2023 )

[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-3851THE 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—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.
(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.
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{¶ 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 R.C.
2929.14(C)(4) to impose consecutive prison sentences on an offender “must be
made in consideration of the aggregate term to be imposed.” Gwynne IV at ¶ 1.
Additionally, this court concluded that appellate review of consecutive sentences
did not require appellate courts to defer to the sentencing court’s findings; rather,
this court explained that “appellate courts * * * review the record de novo and
decide whether the record clearly and convincingly does not support the
consecutive-sentence findings.” Id.{¶ 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
deemed to have been made in error.’ ” State v. Aalim, 150 Ohio St.3d 489, 2017-
Ohio-2956, 83 N.E.3d 883, ¶ 1, quoting State ex rel. Huebner v. W. Jefferson
Village Council, 75 Ohio St.3d 381, 383, 662 N.E.2d 339 (1995). In seeking
reconsideration, the state maintains that the majority in Gwynne IV decided the case
on an issue that was not raised by the parties, that the standard of review articulated
by the majority was internally inconsistent and misstates the law, and that the
decision to remand the case to the court of appeals rather than the trial court was
improper.
{¶ 4} Gwynne did not raise a proposition of law asserting that R.C.
2929.14(C)(4) requires both trial and appellate courts to consider a defendant’s
aggregate prison term when imposing or reviewing consecutive sentences. That
issue also was not addressed by Gwynne in her briefs or at oral argument.
Moreover, the standard of review established by the majority in Gwynne IV is
contrary to the plain language of R.C. 2953.08(G)(2). The majority announced a
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de novo standard of review, but the statute requires an appellate court to defer to a
trial court’s consecutive-sentence findings.
{¶ 5} The plain language of R.C. 2953.08(G)(2) requires an appellate court
to defer to a trial court’s consecutive-sentence findings, and the trial court’s
findings must be upheld unless those findings are clearly and convincingly not
supported by the record. Here, the appellate court properly applied that standard
and could not clearly and convincingly find that the record did not support the trial
court’s findings for consecutive sentences. For these reasons, we grant the motion
for reconsideration, vacate this court’s decision in Gwynne IV, and affirm the
judgment of the Fifth District Court of Appeals.
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
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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 consecutive
sentences 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 in R.C. 2929.11 and
2929.12 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
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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 in R.C. 2929.11(A) and (B) and the
seriousness and recidivism factors in R.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 under R.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’s R.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
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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
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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, Article II, Section 1, Ohio Constitution, and it is the province
of the General Assembly to make policy decisions, Groch v. Gen. Motors Corp.,
117 Ohio St.3d 192, 2008-Ohio-546, 883 N.E.2d 377, ¶ 212. It is undisputed that
“[j]udicial policy preferences may not be used to override valid legislative
enactments.” State v. Smorgala, 50 Ohio St.3d 222, 223, 553 N.E.2d 672 (1990),
superseded by statute on other grounds as stated in State v. Mayl, 106 Ohio St.3d
207, 2005-Ohio-4629, 833 N.E.2d 1216, ¶ 54.
{¶ 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 R.C. 2953.08.
This court has recognized that “[o]rdinarily, appellate courts defer to trial courts’
broad discretion in making sentencing decisions,” and R.C. 2953.08(G) reflects that
deference. State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431,
¶ 10 (lead opinion); see also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
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1002, 59 N.E.3d 1231, ¶ 23 (describing the appellate court’s review of whether a
sentence is clearly and convincingly contrary to law under R.C. 2953.08(G) as
being deferential to the sentencing court).
{¶ 12} R.C. 2953.08(G)(2)(a) provides:
(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 R.C. 2953.08(G)(2) mandates that an appellate
court may increase, reduce, or otherwise modify consecutive sentences only if the
record does not “clearly and convincingly” support the trial court’s R.C.
2929.14(C)(4) consecutive-sentence findings. The clear-and-convincing standard
for appellate review in R.C. 2953.08(G)(2) is written in the negative.
{¶ 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
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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. R.C. 2953.08(G)(2) also
ensures that an appellate court does not simply substitute its judgment for that of a
trial court.
{¶ 16} The majority in Gwynne IV, __ Ohio St.3d __, 2022-Ohio-4607, __
N.E.3d __, ¶ 12, 23, concluded that R.C. 2953.08(G)(2) requires an appellate court
to review the record de novo, but that is contrary to the plain language of R.C.
2953.08(G)(2). De novo review requires a court to exercise its independent
judgment. Lincoln Properties, Inc. v. Goldslager, 18 Ohio St.2d 154, 159, 248
N.E.2d 57 (1969). The legislature knows how to express whether a court should
conduct a de novo review. R.C. 2929.05(A), the statute that explains the appellate
standard for reviewing a death-penalty sentence, states:
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
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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 R.C. 2953.08(G)(2). The appellate court may not defer to the trial
court’s consecutive-sentence findings while at the same time exercising an
independent power of review.
Review of Gwynne’s sentence
{¶ 17} At sentencing, the trial court made the required R.C. 2929.14(C)(4)
consecutive-sentence findings:
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
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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 R.C. 2929.14(C)(4) is
unclear because the terms “consecutive service” and “consecutive sentences” are
ambiguous. It asserts that in addition to their so-called “abstract” meaning, these
terms can also refer to the aggregate prison term that results from the imposition of
consecutive sentences. First dissenting opinion at ¶ 56. The first dissenting opinion
fails to prove that this is true.
{¶ 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
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“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. R.C. 2929.14(C)(4) therefore is not ambiguous, and the first dissent
simply reads words into the statute when it suggests that the trial court’s
consecutive-sentence findings must be made and reviewed in consideration of the
aggregate sentence to be imposed. So, even if the first dissent were correct that
determining the meaning of “consecutive service” and “consecutive sentences” is
a threshold question that must be decided before addressing the arguments actually
briefed by the parties, it would not affect the outcome here.
{¶ 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 R.C. 2953.08(G)(2). Again, de novo review requires an
appellate court to exercise its independent judgment. See Lincoln Properties, 18
Ohio St.2d at 159, 248 N.E.2d 57. In contrast, R.C. 2953.08(G)(2)(a) precludes an
appellate court from substituting its judgment for that of the trial court, and instead,
it allows an appellate court to modify or vacate consecutive sentences if it clearly
and convincingly finds that the record does not support the sentencing court’s
consecutive-sentence findings. By imposing this limitation on appellate review of
consecutive sentences, the statute denies appellate courts the unfettered power to
modify or vacate the imposition of consecutive sentences that is posited by the first
dissent.
{¶ 23} Third, the first dissent traces the legislative history of R.C.
2929.14(C)(4) and 2953.08(G)(2) and argues that the General Assembly intended
to eliminate deference on appeal following a trial court’s imposition of consecutive
sentences. However, the legislature limited the discretion of trial courts to impose
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consecutive sentences in a specific way: by requiring them to make certain findings
before they can impose consecutive sentences. R.C. 2929.14(C)(4). The General
Assembly could also have eliminated the deference traditionally owed to a trial
court’s sentencing decisions. See Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
59 N.E.3d 1231, at ¶ 23. But it did not.
{¶ 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. R.C.
2953.08(G)(2)(a) is plain and unambiguous and permits an appellate court to
modify or vacate consecutive sentences if it clearly and convincingly finds that the
record does not support the trial court’s consecutive-sentence findings. Our
analysis simply applies this standard created by the statute and concludes that the
court of appeals could not clearly and convincingly find that the record does not
support the trial court’s findings. This does not mean that we would impose the
same sentence if we sat in the trial court’s place. But contrary to the assertion in
the first dissent, we may not rely on our own findings of fact (or speculation)—
such as a finding that criminal activity tends to reduce with age, that Gwynne’s
offenses were crimes of opportunity, or that mental-health issues are likely
involved—to second-guess the trial court’s factual findings in support of
consecutive sentences. Even the first dissent recognizes that “ ‘the appellate court
is constrained to considering only the findings in R.C. 2929.14(C)(4) that the trial
court has actually made,’ ” first dissenting opinion at ¶ 71, quoting Gwynne IV,
__Ohio St.3d __, 2022-Ohio-4607, __ N.E.3d __, at ¶ 21. Appellate review turns
on whether the trial court’s findings are clearly and convincingly not supported by
the record, and if the evidence supports the trial court’s consecutive-sentence
findings, the analysis ends there.
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
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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. Article II, Section 1, Ohio Constitution.
{¶ 26} Upon further reflection, we conclude that the Fifth District properly
applied the plain language of R.C. 2953.08(G)(2) and could not clearly and
convincingly find that the record did not support the trial court’s consecutive-
sentence findings. Accordingly, for the reasons set forth above, we grant the
motion for reconsideration, vacate our decision in Gwynne IV, __ Ohio St.3d __,
2022-Ohio-4607, __ N.E.3d __, and affirm the judgment of the court of appeals.
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
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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 for a different reason, I concur in judgment only.
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
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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 and on appeal, we follow the principle of party presentation. That is, we
rely on the parties to frame the issues for decision and assign to courts the role of
neutral arbiter of matters the parties present.” Greenlaw v. United States, 554 U.S.
237, 243, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008). We are certainly not limited to
the analyses presented by the parties or the analysis of the lower court in resolving
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January Term, 2023
an issue before the court, as this court must apply correct legal principles to resolve
legal issues. See Turner v. CertainTeed Corp., 155 Ohio St.3d 149, 2018-Ohio-
3869, 119 N.E.3d 1260, ¶ 11; In re D.R., ___Ohio St.3d____, 2022-Ohio-4493,
___N.E.3d____, ¶ 37, fn. 2 (Fischer, J., dissenting). But this does not mean that
we can address issues that are not before the court simply because they are
tangentially related to the proposition of law presented for review. The parties
decide what issues to raise for review—it is not the role of this court to question
those decisions.
{¶ 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
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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 R.C. 2953.08(G)(2), the appellate
court must review the record and “clearly and convincingly find” that the “record
does not support” the trial court’s consecutive-sentence findings made pursuant to
R.C. 2929.14(C)(4).
{¶ 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 R.C. 2953.08(G)(2). But this is not a question that we
need to resolve in this case, because it is impossible for the appellate court to find
under any standard of review that the record does not support the trial court’s
consecutive-sentence findings in this case, since the Fifth District Court of Appeals
did not have access to the presentence-investigation report that the trial court relied
on to make its sentencing findings.
{¶ 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”).
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January Term, 2023
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 R.C. 2929.14(C)(4) findings, see R.C. 2953.08(G)(2)(a), when a
portion of the record that the trial court used to make its sentencing findings was
not provided for review, see State v. Barnes, __Ohio St.3d___, 2022-Ohio-
4486,___N.E.3d.____, ¶ 54-55 (Fischer, J., dissenting). The lack of Gwynne’s
presentence-investigation report is fatal to this appeal, as its absence effectively
precludes this court from properly reviewing the trial court’s consecutive-sentence
findings.
{¶ 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 R.C.
2953.08(F)(1). It could not do so, however, because the presentence-investigation
report was never transmitted to it, see Gwynne I at ¶ 27.
{¶ 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); App.R. 10(A); S.Ct.Prac.R. 15.01(A). “Any lack of diligence
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on the part of an appellant to secure a portion of the record necessary to [her] appeal
should inure to appellant’s disadvantage.” Rose Chevrolet at 19; see Natl. City
Bank v. Beyer, 89 Ohio St.3d 152, 160, 729 N.E.2d 711 (2000) (appellate courts
must presume the regularity of the proceedings when the document at issue is not
included in the record).
{¶ 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 report is an error that
Gwynne allowed to persist throughout the litigation in Gwynne II, Gwynne III, and
Gwynne IV. And just because this court did not catch this fatal error in Gwynne II
or Gwynne IV does not mean that we should ignore it now, especially when
considering the report is necessary to review the validity of Gwynne’s sentence.
See R.C. 2953.08(F)(1).
{¶ 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.
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January Term, 2023
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 appointment
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and 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. In doing so, however, these justices have not issued an opinion that
comes to an agreement on the law. While the three justices in the lead opinion
granting reconsideration explicitly disagree with this court’s December 23
interpretation of the law on consecutive-sentence review and would affirm the Fifth
District’s judgment on that basis, the justice concurring in judgment only does so
on strictly procedural grounds. This means that although four justices of this court
believe that this case is deserving of the extraordinary measure of reconsideration,1
they leave the law on consecutive sentences unclear, just as it had been for over 25
years until this court issued its December 23, 2022 decision clarifying the law. This
also means that appellant Susan Gwynne’s 65-year sentence—which was
calculated by running consecutively individual one- and three-year terms for
nonviolent theft offenses—remains in place without any further consideration,
despite the Fifth District’s twice acknowledging that Gwynne’s sentence “shocks
the conscience” and “is disproportionate to her conduct,” see 2021-Ohio-2378, 173
N.E.3d 603, ¶ 30; State v. Gwynne, 5th Dist. Delaware No. 16 CAA 12 0056, 2017-
Ohio-7570, ¶ 30.
{¶ 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 ever
1. The standards for reconsideration are purposefully “onerous.” State v. Braden, 158 Ohio St.3d
462, 2019-Ohio-4204, 145 N.E.3d 235, ¶ 33-34 (Kennedy, J., dissenting).
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January Term, 2023
successfully 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 R.C. 2953.08(G)(2), Gwynne’s aggregate 65-
year prison sentence should be reversed or modified—cannot be answered without
first answering the more fundamental, prerequisite question of what exactly is
meant in R.C. 2929.14(C)(4) by the terms “consecutive service” and “consecutive
sentences” in relation to the necessity and proportionality findings the statute
requires that the trial court make. This is because the scope of appellate review
under R.C. 2953.08(G)(2) broadens or narrows depending on how this question is
resolved.
{¶ 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 R.C. 2953.08(G)(2), is whether it clearly and
convincingly finds that the record does not support the trial court’s findings under
R.C. 2929.14(C)(4) that consecutive service of more than one individual sentence
“is necessary to protect the public from future crime or to punish the offender” and
that the imposition of more than one individual sentence is “not disproportionate to
the seriousness of the offender’s conduct and to the danger the offender poses to
the public.” Should the abstract concept apply, the scope of appellate review under
R.C. 2953.08(G)(2) would be limited to whether the record clearly and
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convincingly does not support the imposition of consecutive sentences as a general
matter because only concurrent sentences are warranted.
{¶ 51} On the other hand, if in making R.C. 2929.14(C)(4)’s necessity and
proportionality findings, a trial court is required to consider each individual prison
term that it chooses to run consecutively to another and, by extension, the aggregate
prison term that results from that determination, then the question is much different.
Using this case as an example, the question an appellate court must ask itself is
whether it clearly and convincingly finds that the record does not support the trial
court’s findings that consecutive service of the three-year prison terms on each
burglary count combined with consecutive service of the 12-month prison terms on
each theft count “is necessary to protect the public from future crime or to punish
the offender” and that these consecutive sentences “are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the
public.” R.C. 2929.14(C)(4). Under this more definite understanding of
“consecutive service” and “consecutive sentence,” which reflects the consecutive
terms that the court actually imposed, the scope of appellate review broadens to
encompass review of the necessity and proportionality of each individually stacked
consecutive sentence. The inquiry is no longer whether consecutive sentences may
be imposed at all but, rather, whether each individual consecutive sentence is
warranted considering R.C. 2953.08(G)(2)’s appellate-review standard.
{¶ 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.
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January Term, 2023
Delaware No. 16 CAA 12 0056, 2017-Ohio-7570, at ¶ 30. The lead opinion on
reconsideration says that here, the appellate court “properly applied [R.C.
2953.08(G)(2)] and could not clearly and convincingly find that the record did not
support the trial court’s findings for consecutive sentences.” (Emphasis added.)
Lead opinion, ¶ 5. But without actually addressing the issue of what R.C.
2929.14(C)(4) means in the context of a trial court’s decision to order consecutive
service of multiple sentences, the lead opinion cannot reach the conclusion that the
appellate court acted “properly.” Indeed, just as an appellate court cannot
determine whether a conviction for a given offense is against the manifest weight
of the evidence without first knowing the elements of the offense, an appellate court
cannot determine whether a given record clearly and convincingly does not support
a trial court’s findings without first understanding what those findings require and
concern. This is the reason the December 23, 2022 majority opinion found it
necessary to address the prerequisite question of what “consecutive service” and
“consecutive sentences” mean in the context of R.C. 2929.14(C)(4).
{¶ 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 at ¶ 4. But the mere fact that
the original majority addressed an unbriefed question is by no means cause for
reconsideration of that opinion. Indeed, the decision by the original majority to
address the underlying questions to Gwynne’s first proposition of law is supported
by this court’s precedent. In the recent past, when this court has encountered a
predicate question that, as a practical matter, should be answered before the
question presented by the proposition of law is considered, we have addressed the
predicate question. See State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159
N.E.3d 248 (Kennedy, J., majority opinion) (overruling our void-sentence case law
even though the parties did not raise a facial challenge to the void-sentence doctrine
on appeal). Furthermore, the author of the lead opinion has seen fit to answer
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unbriefed questions under far more concerning circumstances when the unbriefed
questions involved issues of constitutional magnitude. See State ex rel. Maxcy v.
Saferin, 155 Ohio St.3d 496, 2018-Ohio-4035, 122 N.E.3d 1165, ¶ 14 (Kennedy,
J., majority opinion, joined by O’Donnell, French, and DeWine, JJ.).
{¶ 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 the
2. The author of the opinion concurring in judgment only states “that it is only on rare occasions
that [he] votes[s] to grant motions for reconsideration, and [he has] done so in only a handful of
cases.” Opinion concurring in judgment only, ¶ 35. While this may be true, it raises the curious
question of why this case should represent one of those rare occasions worthy of the author’s
reconsideration. The opinion concurring in judgment only attempts to explain the author’s decision
to vote in favor of reconsideration as one that is necessitated by two different concerns: (1) that the
December 23, 2022 majority opinion answered unbriefed questions, id. at ¶ 34, and (2) that
regardless of the positions of the lead opinion and dissenting opinions in this matter, the appellate
court had no choice but to affirm the trial court’s order of consecutive sentences because Gwynne’s
praecipe did not request that the presentence-investigation report (PSI) be transmitted as part of the
record on appeal, id. at ¶ 40. Without the PSI, according to the opinion concurring in judgment
only, it was impossible for the appellate court to reach the substantive question of whether it clearly
and convincingly found that the record did not support the consecutive-sentence findings. Id. at
¶ 37-38. There is reason to doubt both of these concerns.
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 R.C. 2953.08(G)(2). Indeed, in the decision presently
on review, the appellate court never mentioned the lack of a PSI as a factor limiting its ability to
review the consecutive-sentence findings made by the trial court. See 2021-Ohio-2378, 173 N.E.3d
603. And in an earlier decision in the same matter, the appellate court had only this to say about the
missing PSI:
[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
26
January Term, 2023
state’s request for additional briefing on the prerequisite question, as part of its
motion for reconsideration. Notably, although the justices joining this dissent
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 R.C. 2953.08(G)(2) without
a copy of the PSI in the record, and perhaps the decision of the court of appeals upholding Gwynne’s
sentence should have been affirmed on that basis alone. However, the state has not raised this
argument on appeal to this court, and the issue has not been briefed. Indeed, the author of the
opinion concurring in judgment only never mentioned the missing PSI as an alternative reason for
affirming the appellate court’s judgment when he joined the opinion dissenting from this court’s
original majority opinion, nor did this justice advocate for additional briefing on the matter prior to
the release of that decision or even now on reconsideration—assuming it is a prerequisite question
that must be resolved. If judicial restraint and adherence to the doctrines of forfeiture and waiver
are in fact the guiding principles on which the author of the opinion concurring in judgment only
feels compelled to grant reconsideration in this matter, see opinion concurring in judgment only at
¶ 32-34, it is bewildering that this justice would choose to grant reconsideration based on his
analysis of an unbriefed question of law, an approach that is inconsistent with his earlier position in
this very case.
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. App.R. 9(E) gives courts of
appeals the ability to grant a motion to supplement the record on appeal or to sua sponte order such
supplementation, at any time, should a necessary document be missing. See State v. Brandon, 2nd
Dist. Clark Nos. 2014-CA-143, 2014-CA-144, 2014-CA-145, 2016-Ohio-227, ¶ 7, fn. 1 (explaining
that “[a]lthough the PSI report was not in the record, we sua sponte ordered that the record be
supplemented with the report and we have reviewed it”). Therefore, on remand, the court of appeals
has the ability to obtain and review Gwynne’s PSI. Again, problem solved.
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.
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disagree with the decision to grant reconsideration in this matter, we nevertheless
voted to grant the state’s request for additional briefing should this case be
reconsidered. However, because the request for additional briefing does not garner
a four-justice majority, that request has been denied. Despite not having this
additional briefing and despite the fact that one of the purported bases for granting
reconsideration of the December 23, 2022 majority opinion was that an analysis
was conducted without allowing the parties to submit additional briefing, the three
justices in the lead opinion nevertheless choose to answer the prerequisite question
anyway. Lead opinion at ¶ 19-21. In doing so, the three justices in the lead opinion
have determined that the terms “consecutive service” and “consecutive sentences”
are not ambiguous and that they “have only one relevant meaning: the running of
two or more sentences one right after the other.” Id. In other words, it is the opinion
of those three justices that when a trial court is considering whether to impose
sentences on individual counts consecutively—and thereby overcome the general
rule established by the legislature that multiple sentences are to be served
concurrently—the trial court need not consider the effect of each consecutive
sentence that will be imposed when it comes to determining 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. See R.C. 2929.14(C)(4). That conclusion is
astonishing.
{¶ 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 majority
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January Term, 2023
opinion did not deviate from these principles when interpreting R.C. 2929.14(C)(4),
but the lead opinion’s analysis does.
{¶ 56} As meticulously explained in the December 23 majority opinion, the
terms “consecutive service” and “consecutive sentences” are not explicitly defined
by R.C. 2929.14(C)(4) and could mean either (1) “the abstract conceptualization of
the terms, as in the service of more than one individual sentence,” or (2) “the
consecutive sentence that the trial court actually imposes—that is, the individual
prison term on each count that the trial court decides to impose consecutively and
the aggregate prison term that results” from the stacking of each of those sentences.
Gwynne, __ Ohio St.3d __, 2022-Ohio-4607, __ N.E.3d __, at ¶ 13. The December
23 majority opinion then went on to examine these terms within the context of R.C.
2929.14(C)(4) and determined that the best reading of these terms—and the only
one that actually makes sense given the surrounding language in the statute—was
that “consecutive service” and “consecutive sentences” do not reflect their abstract
meaning but instead refer to the sentence to actually be imposed. Id. at ¶ 17.
Specifically, the majority opinion stated:
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 that R.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 aggregate
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term 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
of R.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” in R.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 eminently
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logical. Furthermore, the analysis applied sound and tested principles of statutory
interpretation—including the rule of lenity found in R.C. 2901.04(A), which states
that “sections of the Revised Code defining offenses or penalties shall be strictly
construed against the state, and liberally construed in favor of the accused.”
Gwynne, __ Ohio St.3d __, 2022-Ohio-4607, __ N.E.3d __, at ¶ 16-17. It was only
after conducting this analysis that the December 23 majority opinion concluded that
R.C. 2929.14(C)(4) requires that when a trial court makes its necessity and
proportionality findings, it must consider the individual sentences on each count
that it intends to have the defendant serve consecutively and the aggregate prison
term that will result. Id. at ¶ 14. No other rational conclusion exists.
{¶ 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 dictionary will, as a matter of
course, provide the broadest applicable definition of a legal term, but—as the lead
opinion concedes, lead opinion at ¶ 20—ultimately, it will always be the context in
which that term appears that gives the term its significance and determines its
meaning. Because a dictionary cannot provide all possible definitions of a term for
3. The lead opinion disingenuously attempts to reframe what the December 23, 2022 majority
opinion said in this case. The December 23 opinion never concluded, as the lead opinion suggests,
that the terms “consecutive service” and “consecutive sentences” are synonymous with the term
“aggregate sentence.” See lead opinion at ¶ 21. Instead, the majority opinion concluded that when
these terms are used in R.C. 2929.14(C)(4), they refer to the consecutive sentences that the court
actually imposes—that is, the specific sentences that the court chooses to stack and their cumulative
effect in terms of the aggregate total sentence. See Gwynne, __ Ohio St.3d __, 2022-Ohio-4607, __
N.E.3d __, at ¶ 12-17.
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every conceivable context in which it may appear, it is an unsatisfactory tool for
legal interpretation when used alone.
{¶ 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).
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(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 R.C. 2929.14(C)(4)’s requirement that a court make
certain findings before imposing consecutive sentences essentially has no real
meaning, serves no real purpose, and requires nothing more from a trial court than
the rote recitation of the required statutory findings. Specifically, the dissenting
opinion stated:
The only reasonable interpretation of R.C. 2929.12(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.
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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
R.C. 2953.08(G)(2) requires appellate courts to give broad deference to trial-court
consecutive-sentence findings. Lead opinion at ¶ 15. However, this conclusion
could not be further from what the General Assembly intended. A review of the
legislative history of R.C. 2929.14(C)(4) and 2953.08(G)(2), as well as our case
law concerning the two statutes, provides a clear understanding as to why.
{¶ 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-
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January Term, 2023
law presumption in favor of consecutive sentences by enacting R.C. 2929.41. See
Lett at ¶ 35; Am.Sub.H.B. No. 511, 134 Ohio Laws, Part II, 1866, 1985-1986.
Contrary to the common-law presumption, the newly enacted law directed that
multiple prison terms would be served concurrently, not consecutively, unless the
trial court specified otherwise or another statutory exception applied. Specifically,
at the time R.C. 2929.41 was enacted, it stated:
(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 R.C. 2929.41 reversed the presumption in favor of consecutive service
of multiple prison terms, the statute did nothing to guide a trial court’s
determination or limit the court’s discretion to impose consecutive sentences other
than to require that the court do so explicitly. Additionally, the statute did not
provide for any meaningful appellate review of consecutive sentences. Indeed, so
long as a trial court complied with R.C. 2929.41(B) by specifying that the sentences
were to be served consecutively, the order imposing consecutive sentences was
effectively irreversible. See, e.g., State v. Johnson, 40 Ohio St.3d 130, 133-134,
532 N.E.2d 1295 (1988) (“the decision of whether the criminal defendant is to serve
the sentences for all his crimes consecutively or concurrently is a matter of
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sentencing discretion, the exercise of which is committed to the trial court”); State
v. Shryock, 1st Dist. Hamilton No. C-961111, 1997 WL 1008672, *2 (Aug. 1, 1997)
(“[prior to S.B. 2,] sentencing decisions were generally subjected to an abuse-of-
discretion standard, and appellate courts rarely disturbed a sentence imposed within
statutory limits”). That all changed in August 1995, when Am.Sub.S.B. No. 2
(“S.B. 2”) was signed into law. See S.B. 2, 146 Ohio Laws, Part IV, 7136.
{¶ 63} S.B. 2 reflected the General Assembly’s “first comprehensive
revision of Ohio’s criminal code since 1974,” when R.C. 2929.41 was originally
enacted. Griffin & Katz, Ohio Felony Sentencing Law, Section 1:1, at 1 (2008).
One of the most notable aspects of S.B. 2 was its overhaul of the state’s criminal-
sentencing system. See State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845
N.E.2d 470, ¶ 34, abrogated in part by Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711,
172 L.Ed.2d 517 (2009); Woods v. Telb, 89 Ohio St.3d 504, 507-508, 733 N.E.2d
1103 (2000). Indeed, R.C. 2929.14(C)(4)4 and 2953.08(G)(2) originate from S.B.
2’s sentencing reforms. See S.B. 2, 146 Ohio Laws, Part IV, 7469, 7564-7565. In
the few years following their enactment, this court broadly described the effect of
these two statutory reforms as follows:
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 through 2929.19, the trial court must follow an
4. When S.B. 2 first took effect, the consecutive-sentencing-findings provision was in division
(E)(3) of R.C. 2929.14. See S.B. 2, 146 Ohio Laws, Part IV, at 7469; see also Am.Sub.S.B. No.
269, 146 Ohio Laws, Part IV, 10752, 10938. As a result of later legislative enactments, the
consecutive-sentence-findings provision is now in division (C)(4) of R.C. 2929.14. For ease and
clarity of discussion, this opinion refers to R.C. 2929.14(C)(4) for the findings provision, with the
understanding that the provision used to be contained in a different division of the statute.
36
January Term, 2023
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 R.C. 2929.41 as
part of S.B. 2’s sentencing-law overhaul. Relevant to the present appeal, the
legislature modified the language in R.C. 2929.41(B) that permitted a trial court to
overcome R.C. 2929.41(A)’s presumption of concurrent sentences for felony
offenses by merely specifying its intent to impose consecutive terms in the
sentencing entry.5 S.B. 2, 146 Ohio Laws, Part IV, at 7502-7503. After the S.B. 2
5. Immediately prior to S.B. 2’s amendments, R.C. 2929.41(B) stated, “[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[.]” (Emphasis added.)
Former R.C. 2929.41(B), Am.Sub.H.B. No. 571, 45 Ohio Laws, Part IV, 6342, 6396. As it existed
prior to the S.B. 2 amendments, the discretion given by R.C. 2929.41(B) to trial-court judges to
impose consecutives sentences by simply expressing an intent to do so applied broadly to both
felony and misdemeanor sentences, because the statute did not distinguish between the two and
instead used the broad phrase “a sentence of imprisonment.” After the S.B. 2 amendments, however,
R.C. 2929.41(B) stated: “(1) A sentence of imprisonment for a misdemeanor shall be served
consecutively to any other sentence of imprisonment when the trial court specifies that it is to be
served consecutively * * * .” (Emphasis added.) S.B. 2, 146 Ohio Laws, Part IV, at 7502. The
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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 R.C.
2929.41(A) to reflect its adoption of the consecutive-sentence findings in R.C.
2929.14(C), which, for the first time, significantly limited trial courts’ discretion to
impose consecutive sentences for multiple felony offenses. R.C. 2929.41(A) now
reads: “Except as provided in [R.C. 2929.14(C)], a prison term * * * shall be served
concurrently with any other prison term * * * .”
{¶ 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 R.C. 2929.41(B)—which allowed courts to impose consecutive sentences
with nothing more than the stroke of a pen—and toward a system that requires
careful consideration of whether consecutive sentences are indeed necessary to
protect the public and whether they are proportionate to the severity of the offenses.
R.C. 2929.14(C)(4) reflects the legislature’s understanding that while the default
rule is that imposed sentences run concurrently, there may be occasions when it is
permissible for the trial court to impose consecutive sentences. Therefore, the
General Assembly gave trial courts some leeway to impose consecutive sentences,
but only in the specified circumstances set forth in R.C. 2929.14(C)(4). See State
v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 15-16; Comer at
¶ 10, 13. Although the lead opinion would like to stop here, giving trial courts some
leeway to impose consecutive sentences is not all S.B. 2 accomplished.
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.
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{¶ 66} The legislature also recognized that the limitations placed on a trial
court’s discretion to impose consecutive sentences under R.C. 2929.14(C)(4) were
not enough on their own to ensure that concurrent sentences remain the norm in
Ohio and that consecutive sentences remain the exception. Accordingly, and
indeed as this court has acknowledged in past opinions, the legislature made sure
to provide meaningful appellate review of a trial court’s decision to impose
consecutive sentences. See Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, 793
N.E.2d 473, at ¶ 10. R.C. 2953.08(G)(2)(a) states that an appellate court may
increase, reduce, or otherwise modify a sentence or that it may vacate the sentence
and remand the case for resentencing when it clearly and convincingly finds that
the record does not support the sentencing court’s findings under R.C.
2929.14(C)(4).
{¶ 67} Regarding appellate review of consecutive sentences under R.C.
2953.08(G)(2), the lead opinion takes the position that this statute—despite the
obvious steps the legislature took to significantly limit trial-court discretion in this
area—requires that appellate courts nevertheless accord broad deference to the trial
court’s consecutive-sentence findings. This position, in and of itself, is illogical
and unreasoned. But things get worse when considering the lead opinion’s “plain
language” rationale for its holding, lead opinion at ¶ 5.
{¶ 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 R.C. 2953.08(G) reflects that deference.” (Second
brackets added in lead opinion.) Lead opinion at ¶ 11, quoting State v. Rahab, 150
Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 10 (plurality opinion). The
plurality opinion in Rahab, however, falls short and does not evince what this court
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recognizes to be the law.6 That the lead opinion must, from the start, rely on a
plurality opinion to support its argument undermines its persuasiveness. Then there
is also the fact that the sentencing issue in Rahab has little to no relation to the issue
presented in this case.
{¶ 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, R.C. 2929.14(C)(4) was never mentioned, nor was R.C.
2953.08(G)(2) discussed within the context of appellate review of a trial court’s
limited discretion to impose consecutive sentences. Rahab at ¶ 19-31.
Accordingly, Rahab offers no support for the lead opinion’s contention that
appellate courts must give broad deference to trial-court consecutive-sentence
findings when reviewing those findings under R.C. 2953.08(G)(2).
{¶ 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:
6. A plurality opinion is “[a]n opinion lacking enough judges’ votes to constitute a majority, but
receiving more votes than any other opinion.” Black’s Law Dictionary 1125 (8th Ed.2004). A
plurality opinion from this court has “questionable precedential value inasmuch as it * * * fail[s] to
receive the requisite support of four justices * * * in order to constitute controlling law.” Kraly v.
Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994).
40
January Term, 2023
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 in R.C. 2929.11 and
2929.12 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.
(Emphasis added.) Id. at ¶ 23. Notably, Marcum does not say what level of
deference the clear-and-convincing-evidence standard in R.C. 2953.08(G)(2)
requires. It just uses the term “equally deferential” before echoing the language of
the statute. Furthermore, this aspect of the Marcum decision was dicta and has
since been repudiated by this court’s more recent decision in State v. Jones, 163
Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 13, 27-29.
{¶ 71} The lead opinion’s analysis of R.C. 2953.08(G)(2)’s language also
does not support its contention that the statute requires that broad discretion be
given to the trial court’s findings under R.C. 2929.14(C)(4). The lead opinion
contends that R.C. 2953.08(G)(2) requires an appellate court to have “a firm belief
or conviction that the record does not support the trial court’s findings” in order to
reverse or modify the trial court’s order of consecutive sentences, lead opinion at
¶ 15, and further, that the statute’s “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,” id. But requiring a
“firm belief or conviction” that a record does not support a finding does not compel
or even suggest a deferential standard of review of the findings. Indeed, this
language does not speak to a standard of review at all. As the December 23, 2022
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majority opinion explained in detail, a plain reading of R.C. 2953.08(G)(2) reflects
only a clear-and-convincing-evidence standard of proof. As this court explained:
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 under R.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. See R.C. 2953.08(G)(2) (“[t]he appellate court’s standard
42
January Term, 2023
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 what R.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
7. The “substantial evidence” and “clearly erroneous” standards of review require a reviewing court
to apply intermediate to minimal deference to a trial court’s findings—in other words, these
standards of review are between a de novo and an abuse-of-discretion review. A trial court’s finding
is “clearly erroneous” when, even though there is some evidence to support the finding, the
reviewing court, in considering the entire body of evidence, is left with the definite and firm
conviction that a mistake had been committed. Ancheta v. Daly, 77 Wash.2d 255, 259, 461 P.2d
531 (1969). The United States Supreme Court has defined “substantial evidence” as “more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Consolidated Edison Co. of New York v. Natl. Labor Relations Bd., 305 U.S.
197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938); see also State Emp. Relations Bd. v. Pickaway Cty.
Dept. of Human Servs., 108 Ohio App.3d 322, 326, 670 N.E.2d 1010 (4th Dist.1995).
43
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categories—either a standard of review or an evidentiary standard
of proof. “Abuse of discretion,” “clearly erroneous,” and
“substantial evidence” are traditional forms of appellate-court
deference that are applied to a trial court’s decisions. They are
standards of review that are applied by a reviewing court to certain
decisions that are made by a fact-finder. They are, in essence,
screens through which reviewing courts must view the original fact-
finder’s decision. In contrast, “preponderance,” “clear and
convincing,” and “beyond a reasonable doubt” are evidentiary
standards of proof. These standards apply to a fact-finder’s
consideration of the evidence. R.C. 2953.08(G)(2)’s requirement
that appellate courts apply the clear-and-convincing standard on
review indicates that the legislature did not intend for appellate
courts to defer to a trial court’s findings but to act as a second fact-
finder in reviewing the trial court’s imposition of consecutive
sentences.
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 R.C. 2953.08(G)(2), is that the appellate court is
constrained to considering only the findings in R.C. 2929.14(C)(4)
that the trial court has actually made. In other words, a reviewing
court cannot determine for itself which of the three permissible
findings within R.C. 2929.14(C)(4)(a) through (c) might apply to
satisfy the third required finding for imposing consecutive
sentences, as the trial court is permitted to do. The second difference
involves the standard of proof. Whereas the trial court’s standard of
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proof under R.C. 2929.14(C)(4) is a preponderance of the
evidence—i.e., that when considered as a whole, the evidence
demonstrates that the proposition of fact represented by the finding
is more likely true, or more probable, than not—an appellate court
applies a clear-and-convincing-evidence standard of proof. And the
third difference is the inversion of the ultimate question before the
court. Whereas the trial court is tasked with determining whether
the proposition of fact represented by each finding is more likely—
or more probably—true than not, an appellate court’s task is to
determine whether it has a firm belief or conviction that the
proposition of fact represented by each finding is not true on
consideration of the evidence in the record.
Thus, when viewed in its proper context, the deference that
a trial court’s consecutive-sentence findings receive comes from the
language of R.C. 2953.08(G)(2), which imposes a higher
evidentiary standard to reverse or modify consecutive sentences. It
does not stem from any statutory requirement that the appellate court
defer to the trial court’s findings when considering whether reversal
or modification is appropriate under R.C. 2953.08(G)(2).
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 R.C. 2953.08(G)(2), the
appellate court can reverse or modify the trial court’s imposition of
consecutive sentences if it clearly and convincingly finds that the
record does not support the findings. The evidentiary standard for
changing the trial court’s imposition of consecutive sentences is not
deference to the trial court; the evidentiary standard is that the
appellate court, upon a de novo review of the record and the
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findings, has a “firm belief” or “conviction” that the findings—the
criteria mandated by the legislature to be met before the exception
to concurrent sentences can apply—are not supported by the
evidence in the record. See Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, at ¶ 22; see also Cross, 161 Ohio St.
at 477, 120 N.E.2d 118. It is important to note that although the
clear-and-convincing-evidence standard imposes a higher
evidentiary standard for changing a trial court’s imposition of
consecutive sentences, the level of certainty required to reverse or
modify an order of consecutive sentences under the clear-and-
convincing standard “does not mean clear and unequivocal,”
(emphasis sic) Cross at 477, again, it means only a firm belief or
conviction, see id.; see also Marcum at ¶ 22.
(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 R.C.
2953.08(G)(2)’s language requires appellate-court deference to the trial court’s
findings when it agrees that the clear-and-convincing-evidence standard in R.C.
2953.08(G)(2) necessarily requires that an appellate court serve in a role as a trier
of fact and not in the traditional role of a reviewing court. The lead opinion states
that “this court has defined ‘clear and convincing evidence’ as ‘that measure or
degree of proof * * * which will produce in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established.’ ” (Ellipsis sic;
emphasis added.) Lead opinion at ¶ 14, quoting Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. It further states,
“[T]herefore, 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
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increase, reduce, or otherwise modify consecutive sentences.” Id. at ¶ 15. R.C.
2953.08(G)(2)’s standard requires the appellate court to act as a trier of fact on
appeal, and the majority’s own explanation of the standard affirms this fact. But
an appellate court cannot act as a trier of fact while also deferring to the factual
findings of another—in this case, the trial court. The two roles are incompatible.
{¶ 73} The lead opinion also disagrees with the December 23, 2022
majority opinion’s determination that R.C. 2953.08(G)(2) requires a de novo
review of the record and findings. Lead opinion at ¶ 16. The lead opinion states
that de novo review requires a court to exercise independent judgment, which it
claims is “incongruous with the deference that the legislature stated an appellate
court must give [consecutive-sentence] findings in the statutory language of R.C.
2953.08(G)(2).” Id. at ¶ 16. As explained above, R.C. 2953.08(G)(2)’s language
imposes an evidentiary standard, not a standard of review. Although the
evidentiary standard might be higher and slightly different on appeal than it is for
the trial court—such that reversal or modification of the imposition of consecutive
sentences may not be warranted in many cases—nothing about R.C.
2953.08(G)(2)’s standard for reversal or modification requires appellate-court
deference to the trial court’s findings. De novo review of the record and findings
under a different evidentiary standard is not incongruous with the statute’s
language; it is in fact what the statute demands.
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 R.C. 2953.08(G)(2) and
2929.14(C)(4)—for further consideration of whether Gwynne’s 65-year prison
sentence should be affirmed. Given this posture, it is disappointing, to say the least,
that the lead opinion gives short shrift to such an important criminal-sentencing
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issue confronting trial courts and courts of appeals every day. In fact, the lead
opinion spends more time quoting black-letter law about how to interpret statutes
and how it is the legislature, and not this court, that has the authority to prescribe
punishments than it does analyzing the law in relation to the question before the
court. When the lead opinion finally does address the central issue before the
court—whether the record does not support the trial court’s findings—it provides
only a single paragraph of analysis before concluding that Gwynne’s sentence
should be affirmed. See lead opinion at ¶ 18.
{¶ 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 R.C. 2929.14(C)(4), or how they show that the standard for
reversal or modification under R.C. 2953.08(G)(2) has not been met. The
paragraph is little more than an appeal to emotion. There is no considered
application of the law to the facts or evidence, and under no circumstances can it
be said that this analysis considers whether the record clearly and convincingly does
not support the trial court’s R.C. 2929.14(C)(4) findings.
{¶ 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
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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 criminal history prior to this
time and, because of this, it is unknown what effect rehabilitation efforts might have
had on her behavior. If the lead opinion is going to reverse our previous judgment
ordering a remand, then it should at least attempt an honest analysis of the question
before the court.
{¶ 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 R.C. 2953.08(G)(2) when it determines that Gwynne’s 65-year sentence
should be affirmed on the basis that the record does not “overwhelmingly support
a contrary result,”8 lead opinion at ¶ 18. This expression is not present in R.C.
2953.08(G)(2) or any of our prior case law interpreting the statute. The clear-and-
convincing-evidence standard of proof is, however, reflected in the language of
R.C. 2953.08(G)(2) and requires only that the appellate court find by clear and
8. The dissent from the original majority opinion also used new standards without any attempt at
explaining their origin. Specifically, the dissent stated: “The record in this case does not clearly and
convincing[ly] 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, __ Ohio
St.3d __, 2022-Ohio-4607, __ N.E.3d __, at ¶ 61 (Kennedy, J., dissenting). It further stated, “The
trial court’s imposition of consecutive sentences was not clearly wrong.” Id.49
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convincing evidence—which is “that measure or degree of proof * * * which will
produce in the mind of the trier of facts a firm belief or conviction,” (emphasis
added) Cross, 161 Ohio St. at 477, 120 N.E.2d 118—that the record does not
support the consecutive-sentence findings. Clear and convincing “does not mean
clear and unequivocal.” (Emphasis sic.) Id. It is entirely possible for an appellate
court to firmly believe or be convinced that the record does not support the trial
court’s findings, without determining that the record “overwhelmingly support[s] a
contrary result concerning the imposition of consecutive sentences.” Lead opinion
at ¶ 18.
{¶ 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 R.C. 2929.14(C)(4). An appellate court could firmly
believe that because the evidence in the record shows that Gwynne already had a
low-to-moderate risk of reoffending and was 55 years old at the time she was
prosecuted for her offenses (she is now 62) and, since criminal activity tends to
reduce with age,9 the record does not support the finding that consecutive sentences
are necessary to protect the public from future crime. Similarly, an appellate court
could firmly believe that consecutive sentences are not necessary to protect the
public based on evidence in the record indicating that Gwynne’s offenses were
crimes of opportunity, in which she used her position as a nurse’s aide to gain access
to her victims, and further, that because her convictions will show up on a
background check going forward, she is not likely to regain the access needed to
9. See, e.g., Nazgol Ghandnoosh, Emma Stammen & Connie Budaci, Felony Murder: An On Ramp
for Extreme Sentencing, 7 (Mar. 2022), https://www.sentencingproject.org/reports/felony-murder-
an-on-ramp-for-extreme-sentencing/ (accessed Aug. 23, 2023) (“Extreme sentences imprison
people who have aged out of their crime-prone years. The age-crime curve is a longstanding and
well-tested concept in criminology, depicting the proportions of individuals in various age groups
who are engaged in criminalized activity”).
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commit similar crimes in the future. It would also be reasonable for an appellate
court to have a firm belief that the record does not support the finding that
consecutive sentences are necessary to punish Gwynne for her crimes in light of
the following facts and evidence: (1) she accepted responsibility for her actions by
pleading guilty rather than requiring government time and resources to convict her
and subjecting the victims to a trial, (2) she was contrite at sentencing and agreed
to pay restitution to her victims, and (3) the unusual nature and circumstances
surrounding Gwynne’s criminal actions suggest that there might have been a
mental-health component to her behavior or at any rate, that her behavior does not
reflect the behavior of the worst of the worst offenders deserving of consecutive-
sentence punishment.10 In any of the above-mentioned circumstances, it does not
matter that there might be some or even many facts tending to support the trial
court’s consecutive-sentence findings; what matters is that there is evidence in the
record that could leave the appellate court with the “firm belief” that the record
does not support one or more of the trial court’s findings. The lead opinion’s
insistence that the record must “overwhelmingly support a contrary result”
concerning the imposition of consecutive sentences before an appellate court may
take action to reduce or modify the sentence, lead opinion at ¶ 18, impermissibly
grafts a “quantity of the evidence” component onto the statute where none exists.
{¶ 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 R.C. 2953.08(G)(2)
and how, in practical effect, it should work. Prior decisions from this court, as well
10. The record before this court shows that Gwynne, for the most part, did not sell or destroy or
attempt to sell or destroy the items she stole. Instead, she kept the approximately 3,000 stolen items
in several large storage containers in her home. The objects themselves do not reflect the kind of
items that would be stolen for selfish motives, like financial gain or a desire to make personal use
of them. Rather, the items stolen were mostly objects of sentimental value—e.g., dog tags, military
medals, family photos, and baby bracelets.
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as those from the courts of appeals, have lacked clarity on this issue, which means
that appellate courts lack needed guidance on what their role is in consecutive-
sentence review. That this case has come before the court for the second time is
certainly evidence of that concern. Far from providing clear guidance to courts of
appeals on how to conduct appellate review of consecutive sentences, however, the
four justices granting reconsideration have muddied the waters even further, and
the lead opinion fails to conduct any reasoned analysis and fails to apply any
consistent or even coherent standard to its review. This is the result of granting
reconsideration after this court had established clear guidelines—based firmly in
the language of the statutes involved, the legislature’s intent behind those statutes,
and this court’s prior case law—for appellate review of consecutive sentences in
the December 23, 2022 majority opinion. For these reasons, I dissent.
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—R.C. 2929.14(C)(4) requires a proportionality analysis,
meaning that a sentencing court must consider the aggregate term of imprisonment
to be imposed because, without such consideration, there is no coherent way to
evaluate whether multiple, consecutive sentences are proportional to an offender’s
overall conduct for which the sentences have been imposed. In other words, I
would continue to hold that R.C. 2929.14(C)(4)’s command that sentencing courts
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” means that
sentencing courts must be able to articulate that the consecutive sentences, in the
aggregate and as they will actually be imposed, are not disproportionate to the
seriousness of the conduct and the danger to the public. Because the new, post-
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reconsideration lead opinion concludes otherwise, and for the reasons discussed in
Justice Stewart’s dissenting opinion, I dissent as well.
ANALYSIS
{¶ 82} In Ohio, it is presumed by statute that prison terms are to be imposed
concurrently, see R.C. 2929.41(A), absent specified circumstances that are not
applicable here, see, e.g., R.C. 2929.14(C)(1) through (3). And when a trial court
exercises its discretion to impose consecutive sentences, it must make certain
findings:
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.
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(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.) R.C. 2929.14(C)(4).
{¶ 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 R.C. 2929.14(C)(4), and it does so by finding that “[t]he terms
‘consecutive service’ and ‘consecutive sentences’ each have only one relevant
meaning: the running of two or more sentences one right after the other.” Lead
opinion, ¶ 21. However, while justice is to be blind to outside influences, it must
not be blind to the whole of the law and ignore the rest of the requirements of R.C.
2929.14(C)(4).
{¶ 84} There is no dispute that here, the trial court recited the statutory
findings in R.C. 2929.14(C)(4)—more or less verbatim—during Gwynne’s
sentencing hearing and again in its written judgment entry. Thus, no one can argue
that the trial court failed to make the necessary findings. The more difficult
question, however, is whether the record actually supports those findings. My first
query is whether the Fifth District Court of Appeals should have found that the
record “clearly and convincingly” did “not support the sentencing court’s findings
under [R.C. 2929.14(C)(4)],” see R.C. 2953.08(G)(2). Particularly relevant here is
that R.C. 2929.14(C)(4) requires, among other factors, consideration of whether
“consecutive sentences are not disproportionate to the seriousness of the offender’s
conduct and to the danger the offender poses to the public.”
{¶ 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
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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, 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. 6th Dist. Erie No. E-18-053, 2019-Ohio-2949, ¶ 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, 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. 2d Dist.
Montgomery No. 25774, 2015-Ohio-4198, ¶ 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, 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. 12th Dist. Butler No. CA2017-12-182, 2018-
Ohio-3849, ¶ 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.
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{¶ 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
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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
11. Even the dissent in Gwynne IV tacitly admitted this fact: “When a trial court orders a defendant
to serve multiple consecutive prison terms, of course it knows the amount of time that it has
sentenced the defendant to serve.” State v. Gwynne, ___ Ohio St.3d ___, 2022-Ohio-4607, ___
N.E.3d ___, ¶ 70 (Kennedy, J., dissenting) (“Gwynne IV”).
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sentence of 65 years is disproportionate to both the seriousness of her conduct and
any threat she poses to the public. R.C. 2929.14(C)(4). The very fact that R.C.
2929.14(C)(4) requires proportionality balancing (albeit in the negative—“not
disproportionate”) means that, along with following statutes and criminal rules,
courts must apply judicial discretion to ensure basic fairness in this proportionality
analysis.
{¶ 91} The sentences that a trial judge imposes for crimes must be fully
within the guidelines mandated by the legislature. But the overriding purposes of
felony sentencing are to (1) “protect the public from future crime by the offender
and others” (i.e., general and specific deterrence), (2) “to punish the offender,” and
(3) “to promote the effective rehabilitation of the offender using the minimum
sanctions that the court determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources.” R.C. 2929.11(A). For
that reason, the trial judge must choose with care the sentence to be imposed, first
taking into account the law and its required considerations but also the notion that
a criminal sentence has an effect on the conscience of the community where the
crimes occurred. A wise judge will, through love of service and the community,
carefully use the power of judicial discretion to balance the many competing
interests at play in felony sentencing. By their very nature, felonies are considered
serious offenses, for which incarceration is overwhelmingly more likely than not to
result in placement in the state prison system (as opposed to the county jail). See,
e.g., R.C. 2929.13. A felony offender almost always carries the consequences of
her crime(s) for many years, if not for life. See R.C. 2953.32 (discussing which
records of criminal offenses may be sealed and which may not). So, when
exercising the power to incarcerate an offender, a wise judge will impose
incarceration in proportion to the degree that the offender’s actions have pierced
the community’s conscience, considering the overall sentence in relation to how
deeply the offender’s conduct has caused a collective wound to the community’s
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sense of well-being. When a judge stacks sentences in a manner that shocks the
conscience of the community rather than in a way that works to heal it, justice is
not demonstrated, and public confidence in the judiciary may be shaken.
{¶ 92} Finally, it should be noted that R.C. 2953.08(F) requires district
courts of appeals to consider the entire record when reviewing a sentence under
R.C. 2953.08, and R.C. 2953.08(G)(2)(a) reiterates that reviewing courts are to use
the entire record to consider whether it supports a trial court’s findings made under
R.C. 2929.14(C)(4). And as an overarching principle to this analysis, R.C. 1.47(C)
establishes that we must presume that the General Assembly intended a “just and
reasonable result” when it enacted these statutes. What is just, reasonable, and
sensible, given the text of R.C. 2929.14(C)(4) and the nature of sentencing, is for
the trial court to consider whether the consecutive terms it actually intends to
impose are disproportionate to the seriousness of the offender’s conduct and also
the danger the offender poses to the public, not whether any hypothetical
consecutive sentence might or might not be disproportionate. That is what a
majority of this court determined in Gwynne IV. That finding is supportable under
the law, as it is neither erroneous nor inappropriate. Thus, we should not be
reconsidering it now.
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
short term of imprisonment, the imposition of some number of consecutive
sentences may be appropriate, but overall, excessive stacking is inconsistent with
the proportionality determination required by R.C. 2929.14(C)(4).
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{¶ 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 R.C. 2929.14(C)(4)’s command that sentencing courts must 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” means that those courts
must be able to articulate why the consecutive sentences that will actually be
imposed, taken in the aggregate, are not disproportionate to the seriousness of the
conduct and the danger to the public.
{¶ 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.
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January Term, 2023
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.
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