Submitted January 8, 2019
from the Court of Appeals for Delaware County, No. 16 CAA 12
Hamilton O'Brien, Delaware County Prosecuting Attorney,
and Douglas N. Dumolt, Assistant Prosecuting Attorney, for
H. Birch, for appellee.
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Christopher D. Schroeder, Assistant Prosecuting
Attorney, urging reversal for amicus curiae Cuyahoga County
Klein, Columbus City Attorney, and Lara N. Baker-Morrish,
Solicitor General, Columbus Department of Law, urging
reversal for amicus curiae Columbus City Attorney Zach Klein.
Russell S. Bensing, urging affirmance for amicus curiae Ohio
Association of Criminal Defense Lawyers.
1} In this discretionary appeal from a judgment of
the Fifth District Court of Appeals, we consider two
propositions of law offered by appellant, the state of Ohio,
related to the scope of appellate sentencing review. One
proposition of law asks us to determine whether a court of
appeals loses jurisdiction over a case for purposes of
addressing the merits of an appeal when a defendant
knowingly, voluntarily, and intelligently waives her right to
appeal. The other proposition of law asks us to determine
whether the appellate criminal-review statute, R.C.
2953.08(G)(2), permits an appellate court to review a
sentencing court's findings under R.C. 2929.11 and
2929.12 consistent with State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231.
2} We conclude that the state forfeits its right to
argue that a court of appeals is barred from reviewing a
sentencing appeal when the state does not timely invoke a
defendant's appeal waiver. We also conclude that
Marcum has no application to consecutive-sentencing
cases that are governed by R.C. 2953.08(G)(2). Accordingly,
we reverse the Fifth District's judgment and remand this
cause to that court to consider appellee Susan Gwynne's
assignment of error on consecutive sentences using the
3} Over the course of approximately eight years,
Gwynne stole thousands of items of jewelry and personal
memorabilia from 46 identified residents of 12 nursing homes
and assisted-living facilities while she was employed as (or
while pretending to be employed as) a nurse's aide.
4} A grand jury returned an indictment charging
Gwynne with 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. The grand
jury also charged Gwynne with 15 first-degree-misdemeanor
counts of receiving stolen property.
5} 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 other 55 counts. She agreed to pay restitution
and waived her right to appeal "including, but not
limited to the grounds listed in [R.C.] 2953.08."
Delaware C.P. No. 16CR-I-06-0271 (Sept. 23, 2016). The trial
court imposed prison terms of three years for each of the
second-degree-burglary convictions, 12 months for each of the
third-degree-theft convictions, 12 months for each of the
fourth-degree-theft convictions, and 180 days for each of the
misdemeanor receiving-stolen-property convictions. The court
then ordered Gwynne to serve the felony sentences
consecutively, for an aggregate sentence of 65 years.
6} Gwynne appealed to the Fifth District Court of
Appeals and argued that the trial court erred by imposing a
sentence that was contrary to Ohio's sentencing statutes
and that her aggregate 65-year sentence amounted to cruel and
unusual punishment in violation of the Eighth Amendment to
the United States Constitution. The court of appeals
determined that the sentencing court considered the
applicable sentencing statutes and made all the required
statutory findings. 2017-Ohio-7570, ¶ 12. Nevertheless,
the court of appeals analyzed Gwynne's 65-year aggregate
sentence under R.C. 2929.11 and 2929.12 and determined that
the aggregate sentence was not supported by the record and
did not comply with the purposes and principles of felony
sentencing. Characterizing the aggregate prison term as a
"life sentence" for the then 55-year-old Gwynne,
id. at ¶ 29, the court of appeals found that
the aggregate sentence was excessive and
"disproportionate to the conduct and the impact on any
and all of the victims either individually or
collectively," id. at ¶ 30. The court of
appeals agreed, however, with "the trial court's
findings relating to the necessity of a prison sentence, and
that consecutive sentences [we]re warranted."
Id. at ¶ 31. It vacated some of Gwynne's
consecutive sentences, resulting in a new aggregate sentence
of 15 years and rendering Gwynne's second assignment of
7} Although Gwynne agreed to plead guilty and to
waive her right to appeal, "including, but not limited
to the grounds listed in [R.C.] 2953.08," the state did
not ask the court of appeals to dismiss Gwynne's direct
appeal on that basis, nor did it mention this aspect of the
plea agreement in its merit brief filed in the court of
appeals. The court of appeals raised the issue on its own,
stating: "Because there was no agreement as to sentence
in this matter, we find [that Gwynne] has not waived her
right to appeal her sentence." 2017-Ohio-7570 at ¶
9, fn. 1. The state maintains that because Gwynne's
waiver of her right to appeal deprived the court of appeals
of subject-matter jurisdiction, the Fifth District's
decision is void.
8} The parties to a plea agreement may neither waive
nor confer subject-matter jurisdiction on a court of appeals.
A court of appeals
shall have such jurisdiction as may be provided by law to
review and affirm, modify, or reverse judgments or final
orders of the courts of record inferior to the court of
appeals within the district, except that courts of appeals
shall not have jurisdiction to review on direct appeal a
judgment that imposes a sentence of death.
Constitution, Article IV, Section 3(B)(2); see also In re
MM., 135 Ohio St.3d 375, 2013-Ohio-1495, 987 N.E.2d 652,
9} R.C. 2953.08(A) grants a court of appeals
subject-matter jurisdiction to hear a defendant's appeal
of a felony sentence as a matter of right. Only the
legislature may grant or divest the court of appeals of that
jurisdiction,  so the Fifth District's subject-matter
jurisdiction to consider Gwynne's sentence was unaffected
by the terms of the plea bargain.
10} The state forfeited its argument that Gwynne
should be held to the terms of the plea bargain because it
failed to bring that issue to the attention of the court of
appeals. An argument is forfeited when it is not timely
asserted. State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860, ¶ 21. The purpose of the
forfeiture rule is to encourage parties to call the
court's attention to an error at a time when the error
can be" 'avoided or corrected.'" State
v. Awan, 22 Ohio St.3d 120, 122, 489 N.E.2d 277 (1986),
quoting State v. Childs, 14 Ohio St.2d 56, 236
N.E.2d 545 (1968), paragraph three of the syllabus. The
forfeiture rule is thus one that fosters judicial economy.
See State v. Perry, 101 Ohio St.3d 118,
2004-Ohio-297, 802 N.E.2d 643, ¶ 23.
11} The appellate rule of forfeiture applies to any
party claiming error, including the state. See State v.
Jones, 7th Dist. Mahoning No. 10 MA 118, 2011-Ohio-3404,
¶ 23. Had the state filed in the court of appeals a
motion to dismiss Gwynne's appeal before briefing
commenced, a favorable ruling on the motion (and we express
no opinion on the merits of such a motion) would have
prevented the appeal from going forward, thus promoting
12} We also reject the state's assertion that
the court of appeals should have enforced Gwynne's appeal
waiver on its own initiative. The duty to advocate for
enforcing rights arising under the plea agreement belongs to
the state; it was not incumbent on the court of appeals to
raise the issue. Accordingly, we will not consider whether
Gwynne waived her right to appeal.
13} The substantive sentencing issue raised by the
state is whether the court of appeals should have reviewed
Gwynne's consecutive sentences based on the principles
and purposes of felony sentencing set forth in R.C. 2929.11
14} The court of appeals reviewed Gwynne's
sentence under R.C. 2929.11 and 2929.12 based on its reading
of this court's decision in Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23, in
which we stated:
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.
See 2017-Ohio-7570 at ¶ 19-20.
15} Paragraph 23 of Marcum has no
application to this case. Marcum involved a
challenge to the length of a nonmaximum sentence for a
single count. Marcum at ¶ 4. Gwynne
did not challenge the length of any of her felony
sentences-none of which were maximum terms-that she received
for the individual counts. Nor did Gwynne argue that her
consecutive sentences were "contrary to law,"
because, as the court of appeals noted, the sentencing court
made the findings required by R.C.
2929.14(C)(4) before ordering that the sentences be
served consecutively. 2017-Ohio-7570 at ¶ 17; see,
e.g., State v. Bonnell, 140 Ohio St.3d 209,
2014-Ohio-3177, 16 N.E.3d 659, ¶ 37 (failure to make the
findings required by R.C. 2929.14(C)(4) and incorporate them
into a defendant's sentencing entry renders the sentence
contrary to law). Rather, Gwynne challenged the overall
length of her sentence based on the sentencing court's
decision to run the sentences on each individual count
consecutively, as permitted by R.C. 2929.14(C)(4). This
challenge requires an analysis entirely different than the
one used in Marcum for determining whether the
length of an individual sentence is contrary to law.
16} Given the circumstances of this case,
Gwynne's only avenue for relief on appeal was to make an
argument under R.C. 2953.08(G)(2)(a). Under that provision, a
court of appeals may increase, reduce, or otherwise modify a
sentence if it clearly and convincingly finds "[t]hat
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." Because R.C. 2953.08(G)(2)(a)
specifically mentions a sentencing judge's findings made
under R.C. 2929.14(C)(4) as falling within a court of
appeals' review, the General Assembly plainly intended
R.C. 2953.08(G)(2)(a) to be the exclusive means of appellate
review of consecutive sentences. See State v.
Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d
1267, ¶ 7 ("We primarily seek to determine
legislative intent from the plain language of a
17} While R.C. 2953.08(G)(2)(a) clearly applies to
consecutive-sentencing review, R.C. 2929.11 and 2929.12 both
clearly apply only to individual sentences. R.C.
2929.11 speaks in terms of a court imposing "a
sentence" for "a felony." Likewise, R.C.
2929.12(A) speaks in terms of a court imposing "a
sentence" for "a felony." This language is
consistent with our precedent establishing that "[a]
sentence is the sanction or combination of sanctions imposed
for each separate, individual offense"
(Emphasis added.) State v. Saxon, 109 Ohio St.3d
176, 2006-Ohio-1245, 846 N.E.2d 824, paragraph one of the
syllabus. Consecutive service may not be ordered under R.C.
2929.14(C)(4) until the sentencing judge imposes a prison
term for each individual count, and the judge must first
impose a sentence for each count by considering the purposes
and principles of felony sentencing under R.C. 2929.11 and
18} The Fifth District erred by reviewing
Gwynne's consecutive sentences under R.C. 2929.11 and
2929.12. The court should have analyzed Gwynne's
consecutive sentences for compliance with R.C. 2929.14(C)(4).
Any use of the analysis that we provided in Marcum,
146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, is
outside the scope of this appeal.
19} The court of appeals determined that
Gwynne's consecutive sentences were
"appropriate" and "warranted," but it
used the wrong statutory provision to make that
determination. When a court of appeals employs the wrong
analysis, we ordinarily remand the cause and instruct the
court to use the correct analysis. In re Adoption of
P.L.H ., 151 Ohio St.3d 554, 2017-Ohio-5824, 91 N.E.3d
698, ¶ 33 ("Ordinarily, upon a determination that
the courts below applied the wrong legal standard, we would
remand the matter to the * * * court of appeals to consider
the evidence under the correct legal standard"). And
although the court of appeals said that Gwynne does not
"argue the court failed to make the appropriate
findings," it also stated in the same paragraph that she
disagreed with "the trial court's consecutive
sentence findings pursuant to R.C. 2929.14(C)(4)."
2017-Ohio-7570 at ¶ 17. We interpret the court of
appeals' decision as stating that while Gwynne had
conceded that the sentencing judge made the requisite R.C.
2929.14(C)(4) findings to order consecutive sentences, she
was contesting whether the record supported those findings.
We think that this interpretation is warranted given the
court of appeals' statement that Gwynne "argues the
trial court's findings were erroneous, and consecutive
sentences were not appropriate," 2017-Ohio-7570 at
20} We therefore reverse the Fifth District's
judgment and remand this cause to that court 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).
reversed and cause remanded.
O'Connor, C.J., and French, J., concur.
Fischer, J., concurs in judgment only.
Kennedy, J., concurring in judgment only.
21} To get to its result-for no other reason than
because it wants to go there-the lead opinion exceeds its
authority by ignoring our precedent, going beyond the
propositions of law and legal issues before us, purposefully
misreading the Fifth District's opinion, and allowing the
continued propagation of incorrect dicta. Therefore, I write
22} I agree with the lead opinion that appellant,
the state of Ohio, has forfeited its argument that appellee,
Susan Gwynne, waived appellate review of her sentence and
that R.C. 2953.08(G)(2) does not authorize a court of appeals
to use R.C. 2929.11 and 2929.12 for purposes of reviewing a
trial court's consecutive-sentence findings. Having
decided those issues that are properly before us, and with
this court's caselaw supporting those holdings, the
appropriate remand would be to direct the Fifth District to
consider Gwynne's remaining assignment of error that the
court of appeals did not address-i.e., whether Gwynne's
65-year sentence is in violation of the Eighth
Amendment's prohibition against cruel and unusual
punishments, see 2017-Ohio-7570, ¶ 16.
Accordingly, I concur in judgment only.
lead opinion ignores this court's sentencing
23} Today's lead opinion will neither bring
clarity to the law nor provide guidance to lower tribunals
because it is at loggerheads with our decision in State
v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659. Indeed, the lead opinion concludes:
We interpret the court of appeals' decision as stating
that while Gwynne had conceded that the sentencing judge made
the requisite R.C. 2929.14(C)(4) findings to order
consecutive sentences, she was contesting whether the record
supported those findings. We think that this interpretation
is warranted given the court of appeals' statement that
Gwynne "argues the trial court's findings were
erroneous, and consecutive sentence were not
appropriate," 2017-Ohio-7570 at ¶ 17.
Lead opinion at ¶ 19.
24} In Bonnell we considered the issue
whether "the trial court must make the required findings
enumerated in R.C. 2929.14(C)(4) and give reasons supporting
those findings when imposing consecutive sentences on an
offender." Bonnell at ¶ 15. This court
concluded that while a sentencing court is required to make
the factual findings enumerated in R.C. 2929.14(C)(4),
id. at ¶ 23, it is not required to give or
state reasons supporting the decision to impose consecutive
sentences, id. at ¶ 27. Here, the trial court
made the R.C. 2929.14(C)(4) findings and the court of
appeals, after reviewing the record, found that consecutive
sentences were warranted. Therefore, the court of appeals has
already reviewed the imposition of ...