[Cite as State v. Gwynne,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : SUSAN GWYNNE : Case No. 16 CAA12 0056 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: On Remand from the Supreme Court of Ohio, Case No. 2017-15-06

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 9, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA SCHIFFEL CRAIG M. JAQUITH MARK SLEEPER 250 East Broad Street 145 North Union Street Suite 1400 3rd Floor Columbus, OH 43215 Delaware, OH 43015 For Amicus Curiae O.A.C.D.L.

RUSSEL S. BENSING 600 IMG Building 1360 East Ninth Street Delaware County, Case No. 16 CAA 12 0056 2

Cleveland, OH 44114 Wise, Earle, J.

{¶ 1} This matter is before us on remand from the Supreme Court of Ohio, which

in a plurality opinion, reversed our decision in State v. Gwynne, 5th Dist. No. 16 CAA 12

0056,

(hereinafter “Gwynne I”). The Supreme Court has directed us to

address Gwynne's 65-year sentence for compliance with R.C. 2929.14(C)(4).

Facts and Procedural History

{¶ 2} On June 15, 2016, Gwynne was charged by indictment with 31 counts of

burglary in violation of R.C. 2911.12(A)(2), 43 counts of theft in violation of 2913.02(A)(1),

15 counts of receiving stolen property in violation of R.C. 2913.51(A), and 12 counts of

possessing criminal tools in violation of R.C 2923.24(A). The charges spanned a time

period from 2008 to 2016.

{¶ 3} Gwynne stole items from nursing home residents in Delaware and Franklin

counties while working as a nurse's aide, and even after she was fired from that position,

pretending to be an aide to gain access to nursing homes. A search warrant executed at

her home resulted in the discovery of seven large storage bins and a dresser filled with

stolen property – more than 3,000 items. These items included trinkets, jewelry, credit

cards, dog tags, military medals, family photos, baby bracelets, and other mementoes.

Detectives were able to link these items to 46 victims and 12 nursing homes.

{¶ 4} Gwynne entered into a written plea agreement in which she agreed to plead

guilty to 17 counts of second-degree burglary, 4 counts of third-degree theft, 10 counts of

fourth-degree theft, and the 15 misdemeanor counts of receiving stolen property in

exchange for the state dismissing the remaining 55 counts. She further agreed to pay

restitution. Delaware County, Case No. 16 CAA 12 0056 3

{¶ 5} At the sentencing hearing held on November 7, 2016, the trial court

indicated it had reviewed the PSI, sentencing memoranda from the state and appellant,

as well as the victim impact statements. The state recommended 42 years incarceration.

Counsel for appellant advocated for intensive supervision community control, and a

period of time in a community based correctional facility.

{¶ 6} Departing from either of these recommendations, the trial court imposed a

sentence of three years for each of the 15 second degree felony burglaries, 12 months

for each of the third degree felony thefts, 12 months for each of the fourth degree felony

thefts, and 180 days for each first degree misdemeanor receiving stolen property. The

court ordered appellant to serve the felony sentences consecutively, and the

misdemeanor sentences concurrently for an aggregate total of 65 years incarceration.

{¶ 7} Gwynne appealed to this court arguing the trial court had failed to properly

consider the seriousness and recidivism factors contained in R.C. 2929.11 and 2929.12

in fashioning her 65-year sentence. We agreed the record did not support the trial court's

sentence under R.C. 2929.11 and 2929.12. Gwynne I, ¶ 17. While we found consecutive

sentences appropriate, we nonetheless found a sentence of 65 years for non-violent theft

offenses imposed upon a first time felon was unsupported by the record and shocked the

conscience. Id. ¶ 30. We therefore modified Gwynne's sentence to an aggregate total of

15 years.

{¶ 8} Gwynne's discretionary appeal was accepted by the Supreme Court of

Ohio. State v. Gwynne,

,

,

. The lead

opinion found our analysis erroneously relied upon its opinion in State v. Marcum,

,

,

, and that R.C. 2929.11, and 2929.12 Delaware County, Case No. 16 CAA 12 0056 4

had no application in the review of consecutive sentences. The court therefore reversed

our judgment and remanded the matter " * * * with instructions to consider Gwynne's

assignment of error on consecutive sentences using the standard of review set forth

under R.C. 2953.08(G)(2)." Id. ¶ 20.

{¶ 9} On remand, we granted leave for supplemental briefing in light of the

Supreme Court's opinion. Gwynne, amicus curiae Ohio Association of Defense Lawyers

in support of Gwynne, and the state each filed supplemental briefs. Gwynne and amicus

filed replies to the state's supplemental brief. Gwynne now raises four assignments of

error for our consideration as follow:

I

{¶ 10} "THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO A

PRISON SENTENCE IN CONTRAVENTION OF THE SENTENCING STATUTES. (NOV.

23, 2016, AMENDED JUDGMENT ENTRY ON SENTENCE.)"

II

{¶ 11} "THE TRIAL COURT ERRED BY IMPOSING A 65-YEAR SENTENCE IN

VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES

CONSTITUTION'S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT

(NOV. 23, 2016, AMENDED JUDGMENT ENTRY ON SENTENCE.)"

III

{¶ 12} "OHIO'S CONSECUTIVE-SENTENCE STATUTE IS

UNCONSTITUTIONAL, BECAUSE IT PERMITS TRIAL COURTS TO IMPOSE LIFE-

WITHOUT-PAROLE-EQUIVALENT SENTENCES THAT SHOCK THE CONSCIENCE, Delaware County, Case No. 16 CAA 12 0056 5

AND THUS CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT. (NOV. 23, 2016,

AMENDED JUDGMENT ENTRY ON SENTENCE.)"

IV

{¶ 13} "MS. GWYNNE'S GUILTY PLEAS WERE NOT MADE KNOWINGLY,

INTELLIGENTLY, AND VOLUNTARILY. (PLEA CHANGE TR. 17-18; CHANGE OF PLEA

AND JUDGMENT ENTRY, SEPT. 23, 2016.)"

I

{¶ 14} In her first assignment of error, Gwynne argues the trial court erred by

imposing consecutive sentences when none of the offenses involved a weapon, actual or

threatened physical harm, nor great financial harm.

{¶ 15} R.C. 2953.08 governs appeals based on felony sentencing guidelines.

Subsection (G)(2) sets forth this court's standard of review as follows:

(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 Delaware County, Case No. 16 CAA 12 0056 6

court may take any action authorized by this division if it clearly and

convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings

under division (B) or (D) of section 2929.13, division (B)(2)(e) or

(C)(4) of section 2929.14, or division (I) of section 2929.20 of the

Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶ 16} “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.” Cross v. Ledford,

,

(1954), paragraph three

of the syllabus.

{¶ 17} R.C. 2929.14(C)(4) governs consecutive sentencing and states the

following:

(4) 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 Delaware County, Case No. 16 CAA 12 0056 7

the danger the offender poses to the public, and if the court also finds

any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a

sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18

of the Revised Code, or was under post-release control for a prior

offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or

more of the multiple offenses so committed was so great or unusual

that no single prison term for any of the offenses committed as part

of any of the courses of conduct adequately reflects the seriousness

of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶ 18} In State v. Bonnell,

,

, syllabus,

the Supreme Court of Ohio held: “In order to impose consecutive terms of

imprisonment, a trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its

sentencing entry, but it has no obligation to state reasons to support its findings.” Delaware County, Case No. 16 CAA 12 0056 8

{¶ 19} We have previously found consecutive sentences were appropriate

and that the trial court made the appropriate findings before imposing Gwynne's

consecutive sentences. Gwynne I ¶ 31. We disagreed, however, with the number

of consecutive sentences imposed by the trial court.

{¶ 20} Amicus, citing State v. Wallace,

,

(10th Dist. Franklin 1997), argues we are not bound by that

determination because law of the case has no application where there has been

an intervening decision of a superior court. This court discussed the doctrine of

law of the case in Pillo v. Stricklin, 5th Dist. Stark No.

at ¶ 23-24:

Pursuant to the law of the case doctrine, “[a]fter a reviewing court

has reversed and remanded a cause for further action in the trial

court, and the unsuccessful party does not prosecute review to the

Supreme Court, the pronouncement of the law by the intermediate

court becomes the law of the case, and must be followed by the lower

court in subsequent proceedings in that case.” Pavlides v. Niles Gun

Show, Inc., (1996),

,

. This

doctrine is necessary, “not only for consistency of result and the

termination of litigation, but to preserve the structure of the judiciary

as set forth in the Ohio Constitution.”

“Absent extraordinary

circumstances, such as an intervening decision by the Ohio

Supreme Court, an inferior court has no discretion to disregard the

mandate of a superior court in a prior appeal in the same case.”

Delaware County, Case No. 16 CAA 12 0056 9

citing Nolan v. Nolan (1984),

,

,

syllabus. The intervening Supreme Court decision must state a rule

of law in conflict with such mandate. State ex rel. Crandall, Pheils &

Wisniewski v. DeCessna (1995),

, 1995-Ohio-

98,

.

Likewise, the law-of-the-case doctrine is applicable to subsequent

proceedings in the reviewing court. See

,

. Thus, the decision of an appellate court in a prior appeal

must ordinarily be followed in a subsequent appeal in the same case

and court.

However, this too is subject to exception. “An appellate

court may choose to re-examine the law of the case it has itself

previously created if that is the only means to avoid injustice.”

,

.

{¶ 21} But even if we are permitted to ignore our previous finding, our

opinion here remains the same – consecutive sentences were appropriate and

warranted under the facts of this case.

{¶ 22} We turn then to the record of the sentencing hearing. On the record

the trial court found the following:

The felony sentences are imposed consecutively. I find that

consecutive sentences are necessary to protect the public from

future crime and to punish the Defendant. Consecutive sentences Delaware County, Case No. 16 CAA 12 0056 10

are not disproportionate to the seriousness of the Defendant’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 the defendant’s conduct.

{¶ 23} Transcript of sentencing at 30-31.

{¶ 24} This same finding is included in the trial court’s sentencing judgment

entry. The record therefore demonstrates the trial court considered the required

factors set forth in R.C. 2929.14(C)(4) in imposing consecutive sentences. Indeed,

on her initial appeal to this court, Gwynne agreed the trial court uttered the

appropriate “magic words” to impose consecutive sentences. Appellant’s Brief at

11.

{¶ 25} While we still disagree with what we view as a wholly excessive

sentence for a non-violent first time felony offender, no authority exists for this court

to vacate some, but not all of Gwynne's consecutive sentences. And, “where a trial

court properly makes the findings mandated by R.C. 2929.14(C)(4), an appellate

court may not reverse the trial court's imposition of consecutive sentences unless

it first clearly and convincingly finds that the record does not support the trial court's

findings.” State v. Withrow,

,

, ¶ 38 (2d Dist.). This

is a very deferential standard of review, prohibiting appellate courts from Delaware County, Case No. 16 CAA 12 0056 11

substituting their judgment for that of trial judges. State v. Venes, 8th Dist.

Cuyahoga No. 98682,

. “[T]he question is not whether the

trial court had clear and convincing evidence to support its findings, but rather,

whether we clearly and convincingly find that the record fails to support the trial

court's findings.”

{¶ 26} Because we find the record supports the imposition of consecutive

sentences, and because the trial court made the appropriate findings both on the

record and in its sentencing judgment entry, we have no choice other than to

overrule Gwynne's first assignment of error.

II

{¶ 27} In her second assignment of error, Gwynne argues the trial court

erred in imposing a 65-year sentence in violation of the Eighth Amendment's

prohibition against cruel and unusual punishment. We disagree.

{¶ 28} The Eighth Amendment to the United States Constitution states:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” Accord Article I, Section 9, Ohio Constitution. The

Eighth Amendment “prohibits not only barbaric punishments, but also sentences

that are disproportionate to the crime committed.” Solem v. Helm,

,

,

. It is well established that sentences do not

violate the constitutional provisions against cruel and unusual punishment unless

the sentences are “so disproportionate to the offense as to shock the moral sense

of the community.” McDougle v. Maxwell,

,

Delaware County, Case No. 16 CAA 12 0056 12

(1972). Nonetheless, “[a]s a general rule, a sentence that falls within the terms of

a valid statute cannot amount to a cruel and unusual punishment.”

Accord State

v. Stevens, 5th Dist. Stark No. 2017CA00024,

.

{¶ 29} In regard to consecutively imposed sentences, in State v. Hairston,

,

,

, syllabus, the Supreme

Court of Ohio held: “Where none of the individual sentences imposed on an

offender are grossly disproportionate to their respective offenses, an aggregate

prison term resulting from consecutive imposition of those sentences does not

constitute cruel and unusual punishment.”

{¶ 30} None of Gwynne's individual sentences are disproportionate to their

respective sentences, nor does she argue they are. Thus, although Gwynne can

absolutely distinguish appellant Hairston's career criminal behavior from her own,

the fact remains that we are bound by this precedent and must examine the

individual sentences imposed rather than the aggregate. Although we maintain

Gwynne's aggregate sentence is disproportionate to her conduct and shocks the

conscience, each of Gwynne's individual sentences are within the range

authorized under R.C. 2929.14. We must therefore reach the same conclusion the

Hairston court did at ¶ 23: “Because 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.” Delaware County, Case No. 16 CAA 12 0056 13

{¶ 31} The second assignment of error is denied.

III, IV

{¶ 32} In her third assignment of error Gwynne argues Ohio's consecutive

sentencing statute is unconstitutional. In her fourth assignment of error, she argues

her guilty pleas were not knowingly, intelligently and voluntarily made. These

arguments were neither raised in the trial court, nor in Gwynne I. We therefore

agree with the state that these arguments are not properly before us. Rather, an

App.R. 26(B) application to reopen and/or a motion to withdraw her guilty plea

provide the appropriate vehicle.

{¶ 33} The third and fourth assignments of error are denied.

{¶ 34} The judgment of the Delaware County Court of Common Pleas is

affirmed.

By Wise, Earle, J.

Delaney, P.J. and

Baldwin, J. concur.

EEW/rw