[Cite as State v. Gwynne , 2021-Ohio-2378.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

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

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

JUDGMENT: Affirmed

DATE OF JUDGMENT: July 9, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant MELISSA SCHIFFEL CRAIG M. JAQUITH MARK SLEEPER 250 East Broad Street 145 North Union Street Suite 1400 3rd Floor Columbus, OH 43215 Delaware, OH 43015 For Amicus Curiae O.A.C.D.L. RUSSEL S. BENSING 600 IMG Building 1360 East Ninth StreetDelaware County, Case No. 16 CAA 12 0056 2
Cleveland, OH 44114 Wise, Earle, J. {¶ 1} This matter is before us on remand from the Supreme Court of Ohio, which in a plurality opinion, reversed our decision in State v. Gwynne , 5th Dist. No. 16 CAA 12 0056, 2017-Ohio-7570 (hereinafter “ Gwynne I ”). The Supreme Court has directed us to address Gwynne's 65-year sentence for compliance with R.C. 2929 .14(C)(4). Facts and Procedural History {¶ 2} On June 15, 2016, Gwynne was charged by indictment with 3 1 counts of burglary in violation of R.C. 2911.12(A)(2), 43 counts of theft in violation of 2913.02(A)(1), 15 counts of receiving stolen property in violation of R.C. 291 3.51(A), and 12 counts of possessing criminal tools in violation of R.C 2923.24(A). The c harges spanned a time period from 2008 to 2016. {¶ 3} Gwynne stole items from nursing home residents in Delawar e and Franklin counties while working as a nurse's aide, and even after she wa s fired from that position, pretending to be an aide to gain access to nursing homes. A se arch warrant executed at her home resulted in the discovery of seven large storage bins and a dresser filled with stolen property – more than 3,000 items. These items included t rinkets, jewelry, credit cards, dog tags, military medals, family photos, baby bracelets , and other mementoes. Detectives were able to link these items to 46 victims and 12 n ursing homes. {¶ 4} Gwynne entered into a written plea agreement in which she agreed to plead guilty to 17 counts of second-degree burglary, 4 counts of thir d-degree theft, 10 counts of fourth-degree theft, and the 15 misdemeanor counts of receiving stolen property in exchange for the state dismissing the remaining 55 counts. She further agreed to pay restitution.Delaware County, Case No. 16 CAA 12 0056 3 {¶ 5} At the sentencing hearing held on November 7, 2016, the t rial court indicated it had reviewed the PSI, sentencing memoranda from th e state and appellant, as well as the victim impact statements. The state recommended 42 years incarceration. Counsel for appellant advocated for intensive supervision commu nity control, and a period of time in a community based correctional facility. {¶ 6} Departing from either of these recommendations, the trial court imposed a sentence of three years for each of the 15 second degree felony burglaries, 12 months for each of the third degree felony thefts, 12 months for each of the fourth degree felony thefts, and 180 days for each first degree misdemeanor receivin g stolen property. The court ordered appellant to serve the felony sentences consecuti vely, and the misdemeanor sentences concurrently for an aggregate total of 65 years incarceration. {¶ 7} Gwynne appealed to this court arguing the trial court had failed to properly consider the seriousness and recidivism factors contained in R. C. 2929.11 and 2929.12 in fashioning her 65-year sentence. We agreed the record did no t support the trial court's sentence under R.C. 2929.11 and 2929.12. Gwynne I , ¶ 17. While we found consecutive sentences appropriate, we nonetheless found a sentence of 65 ye ars for non-violent theft offenses imposed upon a first time felon was unsupported by the record and shocked the conscience. Id . ¶ 30. We therefore modified Gwynne's sentence to an aggregate total of 15 years. {¶ 8} Gwynne's discretionary appeal was accepted by the Supreme Court of Ohio. State v. Gwynne , 158 Ohio St.3d 279, 2019-Ohio-4761, 141 N.E.3d 169. The lead opinion found our analysis erroneously relied upon its opinion in State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, and that R.C. 2 929.11, and 2929.12Delaware County, Case No. 16 CAA 12 0056 4
had no application in the review of consecutive sentences. The court therefore reversed our judgment and remanded the matter " * * * with instructions to consider Gwynne's assignment of error on consecutive sentences using the standard of review set forth under R.C. 2953.08(G)(2)." Id. ¶ 20. {¶ 9} On remand, we granted leave for supplemental briefing in light of the Supreme Court's opinion. Gwynne, amicus curiae Ohio Association of Defense Lawyers in support of Gwynne, and the state each filed supplemental bri efs. Gwynne and amicus filed replies to the state's supplemental brief. Gwynne now rai ses four assignments of error for our consideration as follow:
I {¶ 10} "THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO A PRISON SENTENCE IN CONTRAVENTION OF THE SENTENCING STATUTES. (N OV. 23, 2016, AMENDED JUDGMENT ENTRY ON SENTENCE.)"
II {¶ 11} "THE TRIAL COURT ERRED BY IMPOSING A 65-YEAR SENTENCE IN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION'S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT (NOV. 23, 2016, AMENDED JUDG MENT ENTRY ON SENTENCE.)"
III {¶ 12} "OHIO'S CONSECUTIVE-SENTENCE STATUTE IS UNCONSTITUTIONAL, BECAUSE IT PERMITS TRIAL COURTS TO IMPOSE LIF EWITHOUT-PAROLE-EQUIVALENT SENTENCES THAT SHOCK THE CONSCIENCE,Delaware County, Case No. 16 CAA 12 0056 5 AND THUS CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT. (NOV. 23, 201 6, AMENDED JUDGMENT ENTRY ON SENTENCE.)"

IV {¶ 13} "MS. GWYNNE'S GUILTY PLEAS WERE NOT MADE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY. (PLEA CHANGE TR. 17-18; CHANGE OF PLEA AND JUDGMENT ENTRY, SEPT. 23, 2016.)"
I {¶ 14} In her first assignment of error, Gwynne argues the tria l court erred by imposing consecutive sentences when none of the offenses involv ed a weapon, actual or threatened physical harm, nor great financial harm. {¶ 15} R.C. 2953.08 governs appeals based on felony sentencing guidelines. Subsection (G)(2) sets forth this court's standard of review as follows:

(2) The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underly ing 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 appella teDelaware County, Case No. 16 CAA 12 0056 6 court may take any action authorized by this division if it cle arly and convincingly finds either of the following: (a) That the record does not support the sentencing court's fin dings 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 o f the Revised Code, whichever, if any, is relevant; (b) That the sentence is otherwise contrary to law.

{¶ 16} “Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to th e extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, a nd which will produce in the mind of the trier of facts a firm belief or conviction as t o the facts sought to be established.” Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. {¶ 17} R.C. 2929.14(C)(4) governs consecutive sentencing and s tates the following: (4) If multiple prison terms are imposed on an offender for con victions of multiple offenses, the court may require the offender to ser ve the prison terms consecutively if the court finds that the consecut ive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct a nd toDelaware County, Case No. 16 CAA 12 0056 7 the danger the offender poses to the public, and if the court a lso finds any of the following: (a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to s ection 2929.16, 2929.17, or 2929. 18 of the Revised Code, or was under post-release control for a pr ior offense. (b) At least two of the multiple offenses were committed as par t 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 unus ual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriou sness of the offender's conduct. (c) The offender's history of criminal conduct demonstrates tha t consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 18} In State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, syllabus, the Supreme Court of Ohio held: “In order to impose consecutive terms of imprisonment, a trial court is required to make the findings ma ndated by R.C. 2929.14(C)(4) at the sentencing hearing and incorporate its fin dings into its sentencing entry, but it has no obligation to state reasons to support its findings.”Delaware County, Case No. 16 CAA 12 0056 8 {¶ 19} We have previously found consecutive sentences were appr opriate and that the trial court made the appropriate findings before i mposing Gwynne's consecutive sentences. Gwynne I ¶ 31. We disagreed, however, with the number of consecutive sentences imposed by the trial court. {¶ 20} Amicus, citing State v. Wallace , 121 Ohio App.3d 494, 499, 700 N.E.2d 367 (10th Dist. Franklin 1997), argues we are not bound by that determination because law of the case has no application where there has been an intervening decision of a superior court. This court discuss ed the doctrine of law of the case in Pillo v. Stricklin , 5th Dist. Stark No. 2004-Ohio-1570 at ¶ 23-24:

Pursuant to the law of the case doctrine, “[a]fter a reviewing court has reversed and remanded a cause for further action in the tri al court, and the unsuccessful party does not prosecute review to the Supreme Court, the pronouncement of the law by the intermediate court becomes the law of the case, and must be followed by the lower court in subsequent proceedings in that case.” Pavlides v. Niles Gun Show, Inc. , (1996), 112 Ohio App.3d 609, 615, 679 N.E.2d 728. This doctrine is necessary, “not only for consistency of result and the termination of litigation, but to preserve the structure of the judiciary as set forth in the Ohio Constitution.” Id . “Absent extraordinary circumstances, such as an intervening decision by the Ohio Supreme Court, an inferior court has no discretion to disregard the mandate of a superior court in a prior appeal in the same case. ” Id .,Delaware County, Case No. 16 CAA 12 0056 9
citing Nolan v. Nolan (1984), 11 Ohio St.3d 1, 462 N.E.2d 410, syllabus. The intervening Supreme Court decision must state a r ule of law in conflict with such mandate. State ex rel. Crandall, Pheils & Wisniewski v. DeCessna (1995), 73 Ohio St.3d 180, 183, 1995-Ohio98, 652 N.E.2d 742. Likewise, the law-of-the-case doctrine is applicable to subsequ ent proceedings in the reviewing court. See Nolan , supra at 4, 462 N.E.2d 410. Thus, the decision of an appellate court in a prior appeal must ordinarily be followed in a subsequent appeal in the same case and court. Id . However, this too is subject to exception. “An appellate court may choose to re-examine the law of the case it has itsel f previously created if that is the only means to avoid injustice .” Pavlides , supra. at 615, 679 N.E.2d 728.

{¶ 21} But even if we are permitted to ignore our previous find ing, our opinion here remains the same – consecutive sentences were appr opriate and warranted under the facts of this case. {¶ 22} We turn then to the record of the sentencing hearing. On the record the trial court found the following:

The felony sentences are imposed consecutively. I find that consecutive sentences are necessary to protect the public from future crime and to punish the Defendant. Consecutive sentencesDelaware County, Case No. 16 CAA 12 0056 10
are not disproportionate to the seriousness of the Defendant’s conduct and the danger she poses to the public, and I find at l east 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 offe nses was so great or unusual that no single prison term for any of t he offenses committed as part of the course of conduct would adequately reflect the seriousness of the defendant’s conduct.

{¶ 23} Transcript of sentencing at 30-31. {¶ 24} This same finding is included in the trial court’s sente ncing judgment entry. The record therefore demonstrates the trial court consid ered the required factors set forth in R.C. 2929.14(C)(4) in imposing consecutive sentences. Indeed, on her initial appeal to this court, Gwynne agreed the trial co urt uttered the appropriate “magic words” to impose consecutive sentences. Appe llant’s Brief at 11. {¶ 25} While we still disagree wit h what we view as a wholly ex cessive sentence for a non-violent first time felony offender, no autho rity exists for this court to vacate some, but not all of Gwynne's consecutive sentences. And, “where a trial court properly makes the findings mandated by R.C. 2929.14(C)(4 ), an appellate court may not reverse the trial court's imposition of consecuti ve sentences unless it first clearly and convincingly finds that the record does no t support the trial court's findings.” State v. Withrow , 2016-Ohio-2884, 64 N.E.3d 553, ¶ 38 (2d Dist.). This is a very deferential standard of review, prohibiting appellate courts fromDelaware County, Case No. 16 CAA 12 0056 11 substituting their judgment for that of trial judges. State v. Venes , 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 21. “[T]he question is no t whether the trial court had clear and convincing evidence to support its fi ndings, but rather, whether we clearly and convincingly find that the record fails to support the trial court's findings.” Id

. {¶ 26} Because we find the record supports the imposition of co nsecutive sentences, and because the trial court made the appropriate fin dings both on the record and in its sentencing judgment entry, we have no choice other than to overrule Gwynne's first assignment of error.

II {¶ 27} In her second assignment of error, Gwynne argues the tri al court erred in imposing a 65-year sentence in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. We disagree. {¶ 28} The Eighth Amendment to the United States Constitution s tates: “Excessive bail shall not be required, nor excessive fines impo sed, nor cruel and unusual punishments inflicted.” Accord Article I, Section 9, Oh io Constitution. The Eighth Amendment “prohibits not only barbaric punishments, but also sentences that are disproportionate to the crime committed.” Solem v. Helm , 463 U.S. 277, 284, 103 S.Ct. 3001, 77 L.Ed.2d 637. It is well established tha t sentences do not violate the constitutional provisions against cruel and unusual punishment unless the sentences are “so disproportionate to the offense as to sho ck the moral sense of the community.” McDougle v. Maxwell , 1 Ohio St.2d 68, 69, 282 N.E.2d 46Delaware County, Case No. 16 CAA 12 0056 12 (1972). Nonetheless, “[a]s a general rule, a sentence that fall s within the terms of a valid statute cannot amount to a cruel and unusual punishment .” Id . Accord State v. Stevens , 5th Dist. Stark No. 2017CA00024, 2017-Ohio-8692, ¶ 10. {¶ 29} In regard to consecutively imposed sentences, in State v. Hairston , 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, syllabus, the Supreme Court of Ohio held: “Where none of the individual sentences imp osed on an offender are grossly disproportionate to their respective offen ses, an aggregate prison term resulting from consecutive imposition of those sent ences does not constitute cruel and unusual punishment.” {¶ 30} None of Gwynne's individual sentences are disproportiona te to their respective sentences, nor does she argue they are. Thus, althou gh Gwynne can absolutely distinguish appellant Hairston's career criminal beh avior from her own, the fact remains that we are bound by this precedent and must e xamine the individual sentences imposed rather than the aggregate. Althoug h we maintain Gwynne's aggregate sentence is disproportionate to her conduct and shocks the conscience, each of Gwynne's individual sentences are within th e range authorized under R.C. 2929.14. We must therefore reach the same conclusion the Hairston court did at ¶ 23: “Because the individual sentences imposed b y 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 c ommunity's sense of justice and do not constitute cruel and unusual punishment.”Delaware County, Case No. 16 CAA 12 0056 13 {¶ 31} The second assignment of error is denied. III, IV {¶ 32} In her third assignment of error Gwynne argues Ohio's co nsecutive sentencing statute is unconstitutional. In her fourth assignmen t of error, she argues her guilty pleas were not knowingly, intelligently and voluntar ily made. These arguments were neither raised in the trial court, nor in Gwynne I . We therefore agree with the state that these arguments are not properly befo re us. Rather, an App.R. 26(B) application to reopen and/or a motion to withdraw her guilty plea provide the appropriate vehicle. {¶ 33} The third and fourth assignments of error are denied. {¶ 34} The judgment of the Delaware County Court of Common Plea s is affirmed.

By Wise, Earle, J. Delaney, P.J. and Baldwin, J. concur.

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