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State v. Gwynne

Supreme Court of Ohio

November 21, 2019

The State of Ohio, Appellant,
v.
Gwynne, Appellee.

          Submitted January 8, 2019

          Appeal from the Court of Appeals for Delaware County, No. 16 CAA 12 0056, 2017-Ohio-7570.

          Carol Hamilton O'Brien, Delaware County Prosecuting Attorney, and Douglas N. Dumolt, Assistant Prosecuting Attorney, for appellant.

          David 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 Prosecutor's Office.

          Zach 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.

          Stewart, J.

         {¶ 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 correct analysis.

         I. PROCEDURAL HISTORY

         {¶ 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 error moot.

         II. ANALYSIS

         A. Forfeiture

         {¶ 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.

         Ohio 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, ¶ 21.

         {¶ 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, [1] 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 judicial economy.

         {¶ 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.

         B. Sentencing

         {¶ 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 and 2929.12.

         {¶ 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)[2] 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 statute").

         {¶ 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 2929.12.

         {¶ 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 ¶ 17.

         {¶ 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).

         Judgment 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 separately.

         {¶ 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.

         The lead opinion ignores this court's sentencing jurisprudence

         {¶ 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 ΒΆ 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 ...


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