Background Facts
For approximately eight years, Susan 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.
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 the second-degree-burglary offenses, 12 months for each
of the third-degree-theft 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.
Gwynne appealed, arguing that her sentence is clearly and convincingly not supported by the record and that her sentence shocks the conscience and therefore violates the Eighth Amendment’s prohibition against cruel and unusual punishment, and is thus contrary to law.
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 * * *.
In its Opinion filed on October 25, 2023, the Ohio Supreme Court stated, “Appellate review turns on whether the trial court’s findings are clearly and convincingly not supported by the record, and if the evidence supports the trial court’s consecutive-sentence findings, the analysis ends there … we conclude that the Fifth District properly applied the plain language of R.C. 2953.08(G)(2) and could not clearly and convincingly find that the record did not support the trial court’s consecutive sentence findings.”
Source State v. Gwynne, Slip Opinion No. 2023-Ohio-3851.
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