State v. Gwynne , 2022 Ohio 4607 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Gwynne, Slip Opinion No. 2022-Ohio-4607.]
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. 2022-OHIO-4607THE 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. 2022-Ohio-4607.]
Criminal law—Sentencing—R.C.2929.14(C)(4)—Consecutive-sentence findings
are not simply threshold findings that, once made, permit any amount of
consecutively stacked individual sentences—Consecutive-sentence findings
must be made in consideration of the aggregate term to be imposed—
Appellate review of consecutive sentences under R.C. 2953.08(G)(2) does
not require an appellate court to defer to a sentencing court’s findings—
Court of appeals’ judgment reversed and cause remanded.
(No. 2021-1033—Submitted June 14, 2022—Decided December 23, 2022.)
APPEAL from the Court of Appeals for Delaware County,
No. 16 CAA12 0056, 2021-Ohio-2378.
__________________
SUPREME COURT OF OHIO
STEWART, J.
{¶ 1} In this discretionary appeal from a judgment of the Fifth District Court
of Appeals, we are asked to determine whether appellant Susan Gwynne’s 65-year
aggregate sentence for numerous nonviolent felonies violates Ohio’s consecutive-
sentencing statute, R.C. 2929.14(C)(4), or the Cruel and Unusual Punishment
Clause of the Eighth Amendment to the United States Constitution. Before we
begin, however, we must decide (1) whether trial courts must consider the overall
aggregate prison term to be imposed when making the consecutive-sentence
findings under R.C. 2929.14(C)(4) and (2) what the scope of an appellate court’s
authority is under R.C. 2953.08(G)(2) to review consecutive sentences. We hold
that based on the language of R.C. 2929.14(C)(4), the consecutive-sentence
findings are not simply threshold findings that, once made, permit any amount of
consecutively stacked individual sentences. Rather, these findings must be made
in consideration of the aggregate term to be imposed. Additionally, we hold that
appellate review of consecutive sentences under R.C. 2953.08(G)(2) does not
require appellate courts to defer to the sentencing court’s findings in any manner.
Instead, the plain language of the statute requires appellate courts to review the
record de novo and decide whether the record clearly and convincingly does not
support the consecutive-sentence findings.
{¶ 2} Because the Fifth District did not have the benefit of this court’s
clarification on how R.C. 2929.14(C)(4) and R.C. 2953.08(G)(2) are to be applied,
we reverse the Fifth District’s judgment affirming Gwynne’s 65-year sentence and
remand this case to the appellate court so that it may consider whether the record
in this case clearly and convincingly does not support the consecutive-sentencing
findings under R.C. 2929.14(C)(4) as they pertain to the sentencing court’s order
of consecutive sentences on each count. We dismiss Gwynne’s second proposition
of law concerning her Eighth Amendment claim as having been improvidently
accepted.
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Facts and Procedural History
{¶ 3} This is the second time this case is before us on appeal. The
underlying facts of the case are detailed at length in our first decision, but will be
summarized below.
{¶ 4} 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.
{¶ 5} 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 completed
before Gwynne’s sentencing hearing. At sentencing, the court imposed the
following terms of imprisonment: three years for each of second-degree-burglary
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.
{¶ 6} 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
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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.
{¶ 7} 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 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).1 We thus reversed the Fifth
District’s judgment and remanded the case to the court of appeals to consider
Gwynne’s consecutive-sentencing 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).
1. This conclusion was later affirmed in State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169
N.E.3d 649, ¶ 39 (holding that “R.C. 2953.08(G)(2)(b) * * * does not provide a basis for an appellate
court to modify or vacate a sentence based on its view that the sentence is not supported by the
record under R.C. 2929.11 and 2929.12”).
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{¶ 8} 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 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.
{¶ 9} 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.
See 165 Ohio St.3d 1449, 2021-Ohio-3908, 175 N.E.3d 1286.
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Analysis
{¶ 10} When a person is sentenced for having committed multiple offenses,
the presumption is that those sentences will be imposed concurrently, not
consecutively. See R.C. 2929.41(A). This is the general rule of law decreed by our
state legislature. See id; see also State v. Polus, 145 Ohio St.3d 266, 2016-Ohio-
655, 48 N.E.3d 553, ¶ 10. There are, however, exceptions. At issue here is the
exception under R.C. 2929.14(C)(4). See Polus at ¶ 10 (“[t]he first sentence of R.C.
2929.41(A) enacts the general rule requiring concurrent sentencing with only
clearly delineated exceptions”); State v. Hitchcock, 157 Ohio St.3d 215, 2019-
Ohio-3246, 134 N.E.3d 164, ¶ 21 (“[t]he general principle set forth in the Revised
Code is that concurrent sentences are the default and consecutive sentences are the
exception”). For the exception under R.C. 2929.14(C)(4) to apply and before the
court imposes consecutive sentences, it must make specific findings which are
delineated in the statute. Specifically, the trial court must find that “the consecutive
service is necessary to protect the public from future crime or to punish the
offender.” Id. It must also 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.” Id. Finally, the court must find at least one 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
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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.
See id.{¶ 11} R.C. 2929.14(C)(4) reflects the General Assembly’s understanding
that while the rule is that a trial court is to impose sentences concurrently, there
may be occasions when it is permissible for the trial court to impose sentences
consecutively. Therefore, the legislature gave trial courts some leeway to impose
sentences consecutively, but only in 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; see also State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165,
793 N.E.2d 473, ¶ 10, abrogated on other grounds by State v. Foster, 109 Ohio
St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. But that is not all. The legislature
provided defendants with the means to challenge their consecutive sentences on
appeal: 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).
{¶ 12} But what exactly must a trial court consider when making the R.C.
2929.14(C)(4) findings? Should these findings be made in the abstract without
reference to or consideration of how many individual sentences the trial court
intends to impose consecutively? Or does R.C. 2929.14(C)(4) require a trial court
to make its findings considering each consecutive term of imprisonment a
defendant will receive and the aggregate term of imprisonment that will result?
And how does R.C. 2953.08(G)(2) instruct appellate courts to review a trial court’s
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findings? Until today, these questions have remained unanswered by this court,
leaving appellate courts to apply the statutes in differing ways. Indeed, the Fifth
District noted its frustration with the impossible position it found itself in due to the
way in which Ohio appellate courts have interpretated R.C. 2929.14(C)(4) and R.C.
2953.08(G)(2) over the years. See Gwynne III, 2021-Ohio-2378, 173 N.E.3d 693,
at ¶ 25. Today, we announce that meaningful appellate review of consecutive
sentences does exist and that it is wholly supported by the language of R.C.
2929.14(C)(4) and R.C. 2953.08(G)(2). We hold that when a sentencing court
makes the statutory findings under R.C. 2929.14(C)(4) for consecutive sentences,
it must consider the number of sentences that it will impose consecutively along
with the defendant’s aggregate sentence that will result. We additionally hold that
upon a de novo review of the record, an appellate court may reverse or modify a
defendant’s consecutive sentences—including the number of consecutive sentences
imposed—when it clearly and convincingly finds that the record does not support
the trial court’s findings.
R.C. 2929.14(C)(4)
{¶ 13} As indicated above, R.C. 2929.14(C)(4) requires a trial court to
make certain findings before imposing consecutive sentences. However, R.C.
2929.14(C)(4) is ambiguous insofar as it does not, on its face, reveal what is meant
by the terms “consecutive service” and “consecutive sentences,” when these terms
are used within the findings. There are two different ways to define these terms.
“Consecutive service” and “consecutive sentences” could mean the abstract
conceptualization of the terms, as in the service of more than one individual
sentence. On the other hand, “consecutive service” and “consecutive sentences”
could also mean 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. Because either of these
definitions is reasonable, the statutory language is ambiguous. Lang v. Dir., Ohio
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January Term, 2022
Dep’t of Job & Family Servs., 134 Ohio St.3d 296, 2012-Ohio-5366, 982 N.E.2d
636, ¶ 14, quoting Clark v. Scarpelli, 91 Ohio St.3d 271, 274, 744 N.E.2d 719(2001) (“ ‘A statute is ambiguous when its language is subject to more than one
reasonable interpretation’ ”). Based on the language of the statute as well as
longstanding principles of statutory interpretation, we interpret R.C. 2929.14(C)(4)
to mean that when the sentencing court makes the consecutive-sentence findings
under R.C. 2929.14(C)(4), it must consider the number of consecutive sentences it
intends to impose and the aggregate sentence that will result from those consecutive
sentences. In other words, the consecutive-sentence findings are not simply
threshold findings that, once made, permit any amount of consecutive-sentence
stacking.
{¶ 14} 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 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.
{¶ 15} 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
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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.2
{¶ 16} 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. Also, R.C. 2901.04(A) 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.”
(Emphasis added.) And R.C. 1.47(C) states that when a statute is enacted, it is
presumed that a “just and reasonable result is intended.”
2. R.C. 2929.14(C)(4)(a) and (b) do not require a trial court to consider the number of consecutive
sentences that it will be imposing or the aggregate sentence that it intends to impose. R.C.
2929.14(C)(4)(a) involves the more-or-less ministerial finding that the defendant committed the
offense or offenses in question while (1) awaiting trial or sentencing, (2) on postrelease control for
a prior offense, or (3) serving a sanction under R.C. 2929.16 (community-residential sanction), R.C.
2929.17 (nonresidential sanction), or R.C. 2929.18 (financial sanction). R.C. 2929.14(C)(4)(b)
requires the court to find that none of the individual sentences it imposed on the defendant
sufficiently reflects the seriousness of the defendant’s conduct because the resulting harm of those
offenses was so great or unusual. Although R.C. 2929.14(C)(4)(b) requires the court to consider
the overall necessity of consecutive sentences by requiring that it consider whether, if all the
sentences were imposed concurrently, the longest individual sentence adequately reflects the
seriousness of the defendant’s conduct, it does not require the court to necessarily consider the
number of consecutive sentences it intends to impose or the defendant’s aggregate sentence when
making this finding.
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{¶ 17} Liberally construing R.C. 2929.14(C)(4) and giving it a more just
and reasonable construction leads this court to determine that sentencing courts
must consider whether the consecutive terms the court intends to impose are
necessary to protect the public and whether those terms are proportionate to the
defendant’s conduct, not whether any hypothetical consecutive sentence might be
necessary or proportionate. Accordingly, authority exists for an appellate court to
vacate some—but not all—of the consecutive sentences that a trial court has
imposed. This authority exists within the language of R.C. 2929.14(C)(4) and R.C.
2953.08(G)(2). All that is required pursuant to R.C. 2953.08(G)(2) is that the
appellate court clearly and convincingly find that the record does not support the
trial court’s necessity or proportionality findings in light of the actual number of
consecutive terms that it imposed and the resulting aggregate sentence.3
The standard of appellate review under R.C. 2953.08(G)(2) of consecutive
sentences
{¶ 18} 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.
3. The dissenting opinion agrees with the majority opinion that each count that a trial court imposes
consecutively and the overall aggregate prison term that results is integral to the necessity and
proportionality findings. Dissenting opinion, ¶ 68, While there are no “magic words” that need to
be made by the trial court, those considerations are integral to the consecutive-sentence findings that
are made, and each stacked prison term and the overall prison term is wholly reviewable under the
standard set forth in R.C. 2953.08(G)(2).
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{¶ 19} 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 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 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.4 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:
4. The “substantial evidence” and “clearly erroneous” standards of review have a reviewing court
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).
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“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.
{¶ 20} It is important to understand that the standards referenced above
have very specific meanings and fall into one of two 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 order of consecutive sentences.
{¶ 21} 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
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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)-(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 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.
{¶ 22} 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).
{¶ 23} 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 order 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 order of consecutive sentences is not deference to the trial court; the
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evidentiary standard is that the appellate court, upon a de novo review of the record
and the 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 Ledford at 477. It is
important to note that although the clear-and-convincing-evidence standard
imposes a higher evidentiary standard for changing a trial court’s order 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.) Ledford at 477, again, it means only a firm
belief or conviction, see id.; see also Marcum at ¶ 22.
Practical guidance for consecutive-sentence review
{¶ 24} The holdings in this case clarify how consecutive sentences are to be
imposed and reviewed and are in accord with the legislature’s intentions. However,
given the complex history of R.C. 2929.14(C) and R.C. 2953.08(G)(2)5—including
this court’s interpretation of these statutes and the confusion that appears to have
resulted from both our decisions and courts of appeals’ decisions—we feel it
necessary to offer some practical guidance on consecutive-sentence review.
{¶ 25} The first step in consecutive-sentence review is to ensure that the
consecutive-sentence findings under R.C. 2929.14(C)(4) have been made—i.e., the
first and second findings regarding necessity and proportionality, as well as the
third required finding under R.C. 2929.14(C)(4)(a), (b), or (c). If the trial court
5. State v. Roberts, 2017-Ohio-9014, 101 N.E.3d 1067, ¶ 24-32 (8th Dist.) (Boyle, J., dissenting),
Marcum at ¶ 12-16, and State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
¶ 16-23, provide a thorough explanation of the two statutes’ convoluted history. The history of these
statutes points out exactly why the dissenting opinion is incorrect in its declarations that this majority
opinion takes liberties with what the legislature intended appellate review of consecutive sentences
to encompass. The legislature enacted the consecutive sentences statute to make it harder for trial
courts to impose consecutive sentences and intended for there to be meaningful review of those
sentences under R.C. 2953.08(G)(2).
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fails to make these findings, and that issue is properly raised on appeal, then the
appellate court must hold that the order of consecutive sentences is contrary to law
and either modify the sentence or vacate it and remand the case for resentencing.
See State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 36-
37; see also State v. Jones, 93 Ohio St.3d 391, 399, 754 N.E.2d 1252 (2001),
abrogated on other grounds by State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856,
845 N.E.2d 470; R.C. 2953.08(G)(2)(b).
{¶ 26} If the appellate court determines that the R.C. 2929.14(C)(4)
consecutive-sentence findings have been made, the appellate court may then
determine whether the record clearly and convincingly supports those findings.
Depending on the appeal and the arguments raised, an appellate court may be asked
to review only one of the trial court’s findings. Or it may be asked to review two
or more of the findings. The point here is that if even one of the consecutive-
sentence findings is found not to be supported by the record under the clear-and-
convincing standard provided by R.C. 2953.08(G)(2), then the trial court’s order of
consecutive sentences must be either modified or vacated by the appellate court.
See R.C. 2953.08(G)(2).
{¶ 27} As we have stated above, the appellate standard of review under R.C.
2953.08(G)(2) is not whether the trial court abused its discretion when it imposed
consecutive sentences and intermediate deference to the trial court’s findings is not
required. An appellate court’s review of the record and findings is de novo with
the ultimate inquiry being whether it clearly and convincingly finds—in other
words, has a firm conviction or belief—that the evidence in the record does not
support the consecutive-sentence findings that the trial court made. To reiterate,
R.C. 2953.08(G)(2)’s clear-and-convincing standard does not permit—much less
require or expect—an appellate court to modify or vacate an order of consecutive
sentences only when it is unequivocally certain that the record does not support the
findings. It requires that the appellate court vacate or modify the order if, upon
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review of the record, the court is left with a firm belief or conviction that the
findings are not supported by the evidence.
{¶ 28} When reviewing the record under the clear-and-convincing standard,
the first core requirement is that there be some evidentiary support in the record for
the consecutive-sentence findings that the trial court made. If after reviewing the
applicable aspects of the record6 and what, if any, evidence it contains, the appellate
court finds that there is no evidence in the record to support the consecutive
sentence findings, then the appellate court must reverse the order of consecutive
sentences. A record that is devoid of evidence simply cannot support the findings
required by R.C. 2929.14(C)(4); there must be an evidentiary basis upon which
these findings rest.
{¶ 29} The second requirement is that whatever evidentiary basis there is,
that it be adequate to fully support the trial court’s consecutive-sentence findings.
This requires the appellate court to focus on both the quantity and quality of the
evidence in the record that either supports or contradicts the consecutive-sentence
findings.7 An appellate court may not, for example, presume that because the
record contains some evidence relevant to and not inconsistent with the
consecutive-sentence findings, that this evidence is enough to fully support the
findings. As stated above, R.C. 2953.08(G)(2) explicitly rejects this type of
6. R.C. 2953.08(F) explains what the “record” entails for purposes of appellate review of
consecutive sentences. Specifically, it entails any of the following that may be applicable: written
presentence, psychiatric, or other investigative reports submitted to the trial court prior to
sentencing; the trial court record in the case in which the sentence was imposed; any oral or written
statements made to or by the court at sentencing; and any written findings the court was required to
make in connection with a grant of judicial release. R.C. 2953.08(F)(1)-(4).
7. We recognize that there may be many occasions, such as in the instance of a guilty or no-contest
plea, in which a record may be slight on appeal. This fact does not change, in any way, the appellate
court’s responsibility under R.C. 2953.08(G)(2). Regardless of the size of the record, there must
still be enough evidence contained within it, in terms of both quantity and quality, to support the
consecutive-sentence findings that the trial court made and satisfy the appellate court that the
standard for reversal or modification outlined in R.C. 2953.08(G)(2) is not met. We find this
consistent with the general rule in Ohio favoring concurrent sentences.
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deference to a trial court’s consecutive-sentence findings. Instead, a de novo
standard of review applies to whether the evidence in the record supports the
findings that were made. Under this standard, the appellate court is, in fact,
authorized to substitute its judgment for the trial court’s judgment if the appellate
court has a firm conviction or belief, after reviewing the entire record, that the
evidence does not support the specific findings made by the trial court to impose
consecutive sentences, which includes the number of consecutive terms and the
aggregate sentence that results.
The dissenting opinion’s unfounded accusations
{¶ 30} Nothing in the dissenting opinion persuasively argues that the
language of the statutes at issue, the history of those statutes, or any case law or
legal doctrine supports a conclusion any different than the one this decision reaches.
The dissenting opinion, which relies more on pejorative labels than on a critical
analysis of the sentencing statutes at issue, ignores the simple fact that in reviewing
Gwynne’s proposition of law No. I, we determined that two questions—each both
highly relevant to, and inescapably intertwined with, that proposition of law—
needed to be answered before we could reach the ultimate issue whether Gwynne’s
consecutive sentences should be reversed or affirmed. The prior interpretations and
applications of those statutes by lower courts and by this court required
clarification.
Conclusion
{¶ 31} For the foregoing reasons, we hold that R.C. 2929.14(C)(4) requires
trial courts to consider the overall number of consecutive sentences and the
aggregate sentence to be imposed when making the necessity and proportionality
findings required for the imposition of consecutive sentences. We also hold that
appellate review of consecutive sentences under R.C. 2953.08(G)(2) does not
require deference to the trial court’s findings under R.C. 2929.14(C)(4). We
therefore reverse the judgment of the Fifth District Court of Appeals and remand
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this case to that court so it may consider whether the record in this case clearly and
convincingly does not support the consecutive-sentencing findings under R.C.
2929.14(C)(4) as they pertain to the sentencing court’s order of consecutive
sentences on each count. We dismiss Gwynne’s Eighth Amendment claim as
having been improvidently accepted.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and TRAPP and BRUNNER, JJ., concur.
KENNEDY, J., dissents, with an opinion joined by FISCHER and DEWINE, JJ.
MARY JANE TRAPP, J., of the Eleventh District Court of Appeals, sitting for
DONNELLY, J.
_________________
KENNEDY, J., dissenting.
{¶ 32} This is the second time we have considered whether the trial court
properly imposed consecutive sentences. While we can debate the wisdom of the
sentences imposed and whether the sentences imposed were prudent, the trial court
followed the law and the appellate court properly reviewed and affirmed the trial
court’s judgment. So once again, I dissent.
{¶ 33} The only issue before this court is whether the plain language of R.C.
2953.08(G)(2) requires an appellate court to defer to a trial court’s consecutive-
sentence findings. It does unless those findings are clearly unsupported by the
record. Here, the appellate court applied that standard and could not clearly and
convincingly find that the record did not support the trial court’s findings for
consecutive sentences. But the majority decides this case on other issues to achieve
the outcome it wants.
{¶ 34} First, the majority holds that R.C. 2953.08(G)(2) requires an
appellate court to review a trial court’s consecutive-sentence findings de novo,
which is just contrary to the plain language of the statute. Second, it holds that R.C.
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2929.14(C)(4) requires the trial court to consider the aggregate prison term it will
impose when making necessity and proportionality findings and that when the
appellate court reviews those consecutive sentences, it must consider whether the
trial court considered the aggregate prison term. But R.C. 2929.14(C)(4) does not
say that. And appellant, Susan Gwynne, never argued as part of proposition of law
No. I 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. Therefore, the majority is beyond the scope of this appeal. See Ayers v.
Cleveland, 160 Ohio St.3d 288, 2020-Ohio-1047, 156 N.E.3d 848, ¶ 27.
{¶ 35} Because the appellate court followed the law by applying the correct
standard of review and affirmed the trial court’s imposition of consecutive
sentences, this court should affirm the judgment of the Fifth District Court of
Appeals. Because the majority does otherwise, I dissent.
FACTS AND PROCEDURAL HISTORY
{¶ 36} As set forth above, this is the second time this matter has come
before this court. See State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, 141
N.E.3d 169 (“Gwynne I”). I agree with the facts and procedural history as set forth
in the majority opinion and rely on them. However, to understand why the majority
is wrong and is itself creating an issue that is not properly before this court, it is
necessary to develop in greater detail Gwynne’s arguments in Gwynne I and State
v. Gwynne, 2021-Ohio-2378, 173 N.E.3d 603 (5th Dist.) (“Gwynne II”).
Gwynne I
{¶ 37} In her first appeal to the Fifth District Court of Appeals, Gwynne
advanced two assignments of error. See State v. Gwynne, 5th Dist. Delaware No.
16-CAA-12 0056, 2017-Ohio-7570: (1) “[t]he trial court erred by sentencing
[Gwynne] to a prison sentence in contravention of the sentencing statutes,” id. at
¶ 15, and (2) “[t]he trial court erred by imposing a sixty five year sentence in
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violation of the Eighth Amendment to the United Sates Constitution’s prohibition
against cruel and unusual punishment,” id. at ¶ 16.
{¶ 38} In support of her first assignment of error, Gwynne argued that the
trial court’s seriousness and recidivism findings pursuant to R.C. 2929.12 were not
supported by the record and that her sentence did not comport with the purposes
and principles of felony sentencing pursuant to R.C. 2929.11. She also disagreed
with the trial court’s consecutive-sentence findings pursuant to R.C. 2929.14(C)(4).
{¶ 39} In support of her second assignment of error, Gwynne argued that
her 65-year sentence was shocking to the sense of justice in the community for a
first-time, nonviolent offender. 2017-Ohio-7570 at ¶ 30. Therefore, she argued,
her sentence was grossly disproportionate to the offenses she committed and was
unconstitutional.
{¶ 40} The Fifth District reversed the judgment of the trial court. While
recognizing the seriousness of Gwynne’s conduct, it determined that a 65-year
sentence did not comply with the purposes and principals of felony sentencing as
set forth in R.C. 2929.11 and 2929.12. It concluded that while consecutive
sentences were warranted, it reduced Gwynne’s aggregate prison term from 65
years to 15 years.
{¶ 41} This court accepted the state’s appeal and reversed the judgment of
the court of appeals. Gwynne I, 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d
169, at ¶ 20. This court held that a court of appeals may not review a trial court’s
imposition of consecutive sentences under R.C. 2929.11 and 2929.12, but a court
of appeals may review a trial court’s imposition of consecutive sentences for
compliance with R.C. 2929.14(C)(4). Gwynne I at ¶ 18 (lead opinion). This court
then remanded the case to the court of appeals 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. at ¶ 20.
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Gwynne II
{¶ 42} After this court remanded Gwynne’s case to the Fifth District, she
was granted leave to file supplemental briefing. Her supplemental brief advanced
the following assignments of error and issues presented for review:
Assignment of Error I: The trial court erred by sentencing
[Gwynne] to a prison sentence in contravention of the sentencing
statutes. (Nov. 23, 2016, Amended Judgment Entry on Sentence.)
Issue presented for review: Does the record support the
imposition of consecutive sentences upon * * * Gwynne for
offenses that involved neither a weapon, nor actual or threatened
physical harm to any individual, nor great financial harm?
Assignment of Error II: 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.)
Issue presented for review: Does a prison sentence of 65
years for offenses that involved neither a weapon, nor actual or
threatened physical harm to any individual, nor great financial harm
constitute cruel and unusual punishment?
Assignment of error III: Ohio’s consecutive-sentence statute
is unconstitutional, because it permits trial courts to impose life-
without-parole-equivalent sentences that shock the conscience, and
thus constitute cruel and unusual punishment. (Nov. 23, 2016,
Amended Judgment Entry on Sentence.)
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Issue presented for review: Is Ohio’s consecutive-sentence
statute unconstitutional, due to its failure to prevent trial courts from
imposing sentences that violate the Eighth Amendment?
Assignment of Error IV: * * * 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.)
Issue presented for review: When the trial court did not
inform * * * Gwynne of the maximum penalty she faced before she
entered her guilty pleas, were those pleas made knowingly,
intelligently, and voluntarily?
{¶ 43} After consideration of the assignments of error and issues presented
for review, the Fifth District affirmed Gwynne’s 65-year sentence. Gwynne II,
2021-Ohio-2378, 173 N.E.3d 603, at ¶ 19-25. While the court of appeals still
considered the sentence “wholly excessive” for a nonviolent, first-time felony
offender, it concluded that “no authority exists for this court to vacate some, but
not all of Gwynne’s consecutive sentences.” Id. at ¶ 25. Applying the standard set
forth in R.C. 2953.08(G)(2), the court of appeals could not clearly and convincingly
find that the record failed to support the trial court’s consecutive-sentence findings.
Gwynne II at ¶ 25-26.
{¶ 44} Gwynne appealed to this court, and we accepted the following two
propositions of law:
Proposition of law No. I: 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.
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Proposition of law No. II: A sentence that shocks the
conscience violates the Eighth Amendment’s prohibition against
cruel and unusual punishment, and is thus contrary to law.
See 165 Ohio St.3d 1449, 2021-Ohio-3908, 175 N.E.3d 128.
{¶ 45} Because the majority has dismissed Gwynne’s proposition of law
No. II as having been improvidently accepted, this dissent is limited to Gwynne’s
proposition of law No. I.
{¶ 46} In support of proposition of law No. I, Gwynne argues that the
imposition of consecutive sentences, totaling 65 years, was clearly and
convincingly not supported by the record because
• no weapons were involved,
• no individual was physically harmed or threatened with
physical harm,
• the total amount of restitution ordered was less than $10,000,
• * * * Gwynne has no prior felony record,
• * * * Gwynne accepted responsibility and expressed remorse
for her actions, and
• she is in the low to moderate risk category for likelihood of
reoffending.
{¶ 47} In other words, because she did not have a weapon, inflict or threaten
physical harm, took responsibility for her crimes, expressed remorse, and was
ordered to pay an amount of restitution under $10,000, the trial court could not
impose consecutive sentences. But that is just not what the law says.
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LAW AND ANALYSIS
Standard of review—statutory construction
{¶ 48} Gwynne’s proposition of law No. I 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.
And when a court is interpreting a statute, its main objective is to give effect to the
legislative intent. State ex rel. Solomon v. Police & Firemen’s Disability & Pension
Fund Bd. of Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995). “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 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
{¶ 49} 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.
{¶ 50} 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
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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, citing Griffin & Katz, Ohio Felony Sentencing Law, Section 1:3, at 4, fn. 1
(2008), overruled on other grounds by State v. Harper, 160 Ohio St.3d 480, 2020-
Ohio-2913, 159 N.E.3d 248.
{¶ 51} Gwynne’s proposition of law No. I brings R.C. 2953.08(G)(2)
squarely into review.
R.C. 2953.08(G)(2) is unambiguous and provides appellate courts with limited
authority to review consecutive sentences
{¶ 52} 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). 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 * * *.
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(Emphasis added).
{¶ 53} 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.
2929.19(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.
{¶ 54} 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. It 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.
{¶ 55} We have 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 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.
{¶ 56} Because the Fifth District correctly applied this deferential standard
and did not find that the record did not support the consecutive-sentence findings
of the trial court, Gwynne’s consecutive sentences must be affirmed. But the
majority interjects, without any supporting authority, that R.C. 2953.08(G)(2)
requires the appellate court to review the record de novo, but that is contrary to the
plain language of the statute set forth above.
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{¶ 57} 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), which is contrary to the plain language of R.C. 2958.03(G)(2).
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
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.
Gwynne’s sentence should be affirmed
{¶ 58} As stated above, this court addresses only one proposition of law.
That proposition of law asserts that the trial court erred when it sentenced Gwynne
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to consecutive terms of imprisonment when such a sentence is “clearly and
convincingly not supported by the record.”
{¶ 59} The plain language of R.C. 2953.08(G)(2) expresses that an
appellate court must defer to a trial court’s R.C. 2929.14(C)(4) consecutive-
sentence findings unless the record does not support those findings. The Fifth
District properly conducted that review. Gwynne II, 2021-Ohio-2378, 173 N.E.3d
603, at ¶ 22-26.
{¶ 60} 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.
{¶ 61} The record in this case does not clearly and convincing 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
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
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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 wrong.
{¶ 62} While this determination should end the case, the majority goes on
to make holdings that are not argued by Gwynne as part of proposition of law No.
I: aggregate prison terms. It holds that R.C. 2929.14(C)(4) requires a trial court to
consider the aggregate prison term it will impose when making necessity and
proportionality findings and that when an appellate court reviews the trial court’s
order of consecutive sentences, the appellate court must consider whether the trial
court considered the aggregate term imposed. But R.C. 2929.14(C)(4) does not
really say that, and that is not part of Gwynne’s argument in proposition of law No.
I.
R.C. 2929.14(C)(4) does not require consideration
of the aggregate prison term
{¶ 63} To find that R.C. 2929(C)(4) requires a trial court to consider a
defendant’s aggregate prison term it plans to impose and that an appellate court
must consider the aggregate sentence on de novo review, the majority does a little
“ambiguous” magic. It states that R.C. 2929.14(C)(4) is ambiguous because, as
used in the statute, the terms “consecutive service” and “consecutive sentences”
allegedly have two reasonable meanings. No, they do not. Here is the language in
the statute at issue:
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
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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 * * *.
(Emphasis added). R.C. 2929.14(C)(4).
{¶ 64} There is only one reasonable meaning of that language. The words
“serve” and “service” and the phrase “consecutive sentences” all relate to the same
type of prison term the court can impose: consecutive—one after the other.
Whether this language is read in isolation or in conjunction with the statutory
scheme, it is not ambiguous.
{¶ 65} R.C. 2929.14(A) provides the prison terms a court may impose for
felony offenses. R.C. 2929.14(B) establishes the prison terms a court may impose
for felony offenses that also have a specification. And R.C. 2929.14(C) provides
for when a court must impose consecutive prison terms and the conditions under
which a judge may impose consecutive prison terms. As set forth above, R.C.
2929.14(C)(4) establishes the findings that a trial court must make when imposing
consecutive sentences. The additional finding that the court must make, which is
issue here, is:
(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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{¶ 66} A statute is unambiguous when its text lends itself to one apparent
interpretation (even if others are reasonable). A statute is ambiguous when its text
supports “two equally persuasive and competing interpretations of the law.”
(Emphasis added.) Ferrara v. Trumbull Cty. Bd. of Elections, 166 Ohio St.3d 64,
2021-Ohio-3156, 182 N.E.3d 1142, ¶ 21. Moreover, 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.
{¶ 67} 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.
{¶ 68} The majority is simply reading words into R.C. 2929.12(C)(4) that
do not exist when it holds that “findings must be made in consideration of the
aggregate term to be imposed.” Majority opinion, ¶ 1. To reach that determination,
the statute would have to provide (additions are indicated by underlining):
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
aggregate consecutive service of the multiple prison terms is
necessary to protect the public from future crime or to punish the
offender and that aggregate consecutive sentences of the multiple
prison terms are not disproportionate to the seriousness of the
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January Term, 2022
offender’s conduct and to the danger the offender poses to the
public, and if the court also finds any of the following * * *.
{¶ 69} Had the General Assembly intended for a trial court to make these
findings on the record at the time that the court imposes consecutive sentences, the
General Assembly would have included this language. In fact, as the majority
notes, the General Assembly uses the term “aggregate” in R.C. 2929.14(C)(9):
“[w]hen consecutive prison terms are imposed pursuant to division * * * [(C)](4)
* * * the term to be served is the aggregate of all of the terms so imposed.” See
majority opinion at ¶ 16. But the legislature did not use the word “aggregate” in
R.C. 2929.14(C)(4).
{¶ 70} Moreover, what exactly does the majority’s holding mean? 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. So do trial
courts now have to say magical words?
{¶ 71} The legislature is vested with the authority to prescribe punishment
for offenses, Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, at ¶ 12,
and judicial policy preferences cannot override it, Smorgala, 50 Ohio St.3d at 223,
553 N.E.2d 672. This court is tasked with applying unambiguous laws, not
rewriting them to suit judicial preferences. By enlarging the language of the statute,
the majority becomes the legislature, which violates the separation-of-powers
doctrine. See id.The majority improperly raises and resolves issues that are not before the court
{¶ 72} Gwynne’s single-minded focus during both Gwynne I, 158 Ohio
St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169, and Gwynne II, 2021-Ohio-2378, 173
N.E.3d 603, has been that “the imposition of consecutive sentences is clearly and
convincingly not supported by the record.” But that is not the issue that the majority
has decided.
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SUPREME COURT OF OHIO
{¶ 73} Instead, the majority has decided “what the scope of an appellate
court’s authority is under R.C. 2953.08(G)(2) to review consecutive sentences” and
“whether trial courts must consider the overall aggregate prison term to be imposed
when making the consecutive-sentence findings under R.C. 2929.14(C)(4) and
(2).” Majority opinion at ¶ 1. These issues were not raised in Gwynne’s
proposition of law No. I.
{¶ 74} “It has long been the policy of this court not to address issues not
raised by the parties. * * * This court should be hesitant to decide such matters for
the reason that justice is far better served when it has the benefit of briefing,
arguing, and lower court consideration before making a final determination.”
Sizemore v. Smith, 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2. An
appellate court relies on the parties in a case to determine the issues and to argue
the applicable law:
“The premise of our adversarial system is that appellate
courts do not sit as self-directed boards of legal inquiry and research,
but [preside] essentially as arbiters of legal questions presented and
argued by the parties before them.” Carducci v. Regan
(C.A.D.C.1983), 714 F.2d 171, 177. Proceeding to decide an issue
not briefed by the parties creates “ ‘the risk “of an improvident or
ill-advised opinion, given [the court’s] dependence * * * on the
adversarial process for sharpening the issues for decision.” ’ ”
Carbino v. West (C.A.Fed.1999), 168 F.3d 32, 35, quoting Headrick
v. Rockwell Internatl. Corp. (C.A.10, 1994), 24 F.3d 1272, 1278,
quoting Herbert v. Natl. Academy of Sciences (C.A.D.C.1992), 974
F.2d 192, 196.
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January Term, 2022
(Ellipsis and Brackets sic.) State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424,
933 N.E.2d 753, ¶ 78 (O’Donnell, J., concurring in part and dissenting in part).
{¶ 75} Perhaps what is most disturbing about the majority answering
unraised, unbriefed issues regarding Ohio’s sentencing statutes is that appellee, the
state of Ohio, has had no ability to weigh in on those questions. Rather than deny
the parties notice and an opportunity to be heard, this court should exercise a
modicum of judicial restraint and refrain from announcing new standards for
consecutive sentences that no party has asked this court to adopt, and the state has
had no opportunity to weigh in on.
CONCLUSION
{¶ 76} “[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
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, ¶ 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.
{¶ 77} The only proposition of law properly before this court is what the
plain language of R.C. 2953.08(G)(2) requires an appellate court to do when
reviewing the imposition of consecutive prison terms. Because the Fifth District
properly applied that standard and could not find that the record did not support the
trial court’s consecutive-sentence findings, the judgment of the court of appeals
should be affirmed. Because the majority holds otherwise, I dissent.
FISCHER and DEWINE, JJ., concur in the foregoing opinion.
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SUPREME COURT OF OHIO
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.
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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