State v. Gwynne

2017 Ohio 7570

• Court: Ohio Court of Appeals
• Decided: September 11, 2017
• Docket: 16 CAA 12 0056
• Status: Published

Opinion

[Cite as State v. Gwynne, 2017-Ohio-7570.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. Patricia A. Delaney, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, Jr., J -vs- : : SUSAN GWYNNE : Case No. 16 CAA 12 0056 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 16-CR-I-06-0271

JUDGMENT: Reversed and Remanded

DATE OF JUDGMENT: September 11, 2017

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

AMELIA BEAN-DEFLUMER DAVID H. BIRCH 140 North Sandusky Street 286 South Liberty Street Delaware, OH 43015 Powell, OH 43065 Delaware County, Case No. 16 CAA 12 0056 2

Wise, Earle, J.

{¶1} Defendant-Appellant Susan Gwynne appeals the November 8, 2016

judgment of conviction and sentence of the Court of Common Pleas of Delaware County.

Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} In January 2016, Delaware County Sherriff’s Deputies were dispatched to

The Inn at Olentangy Trail, a senior living facility. Three residents reported their rooms

had been entered and items were stolen. Video surveillance showed appellant, dressed

in scrubs, entering the rooms. She began her tour with a large handbag that appeared

empty, and ended with a bulging handbag.

{¶3} Images from the video were released to the public and tips led to the

identification of appellant as the woman in the video.

{¶4} Thereafter, a GPS unit was placed on appellant’s car. The GPS data

revealed appellant traveling to Sunrise of Dublin, another senior living facility. When

appellant traveled to Sunrise of Dublin a second time, Dublin police officers responded to

the scene. They discovered appellant carrying a large empty purse, and wearing scrubs,

displaying a Griswold Home Health badge. She could not identify a patient she was

present to see.

{¶5} As a result of this investigation, a search warrant for appellant’s home was

obtained and executed. Officers executing the search warrant discovered seven large

storage bins and a dresser filled with stolen property – more than 3,000 items. These

items included jewelry, credit cards, dog tags, military medals, family photos, baby

bracelets and other mementos. Delaware County, Case No. 16 CAA 12 0056 3

{¶6} Detectives sorted through the items and were able to identify 46 victims. It

was further determined that the items were stolen from at least 12 different nursing homes

and assisted living facilities in both Delaware and Franklin counties over the course of

eight years. Detectives were unable to connect all of the property to its rightful owners.

{¶7} During part of appellant’s spree, she was employed as a nurse’s aide. After

she was fired for suspicion of theft, however, she continued to dress as a nurse’s aide, in

order to enter nursing homes and steal from residents while appearing to be a legitimate

employee.

{¶8} On June 15, 2016, the Delaware County Grand Jury returned an indictment

charging appellant with 31 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. 2913.51(A), and 12 counts of possessing criminal tools in violation of R.C

2923.24(A). The charges spanned a time period from 2008 to 2016.

{¶9} On September 21, 2016, following negotiations with the state, appellant

elected to enter pleas of guilty to 17 counts of burglary, felonies of the second degree, 4

counts of theft, felonies of the third degree, 10 counts of theft, felonies of the fourth

degree, and 15 counts of receiving stolen property, misdemeanors of the first degree. In

exchange for appellant’s pleas, the state agreed to dismiss the remaining 55 counts and

recommend a presentence investigation (PSI). Appellant agreed to pay restitution and

waive her right to appeal the outcome of the matter.1

1Because there was no agreement as to sentence in this matter, we find appellant has not waived her right to appeal her sentence. State v. Fry, 5th Dist. Delaware No. 10CAA090068, 2011-Ohio-2022 ¶ 8-13. Delaware County, Case No. 16 CAA 12 0056 4

{¶10} At the change of plea hearing, appellant admitted that she had been stealing

from nursing home residents since 2004, four years earlier than the earliest charge in the

indictment. Some residents she knew and worked with, others she did not. She claimed

a cocaine habit was to blame, and that she took cash as well as other items to sell to

support her habit.

{¶11} At the sentencing hearing held on November 7, 2016, the trial court

indicated it had reviewed the PSI, sentencing memoranda from the state and appellant,

as well as the victim impact statements. The state recommended 42 years incarceration.

Counsel for appellant advocated for intensive supervision community control, and a

period of time in a community based correctional facility.

{¶12} After considering all of the applicable sentencing statutes, and making all of

the required findings, 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 receiving stolen property. The court ordered appellant to serve the felony

sentences consecutively, and the misdemeanor sentences concurrently for an aggregate

of 65 years incarceration. Sentencing Judgment Entry filed November 8, 2016. Appellant

did not object to her sentence.

{¶13} Appellant was 55 years old at the time of her sentencing. Sent. Tr. 20.

{¶14} Appellant subsequently filed this appeal, and the matter is now before this

court for consideration. Assignments of error is are follows: Delaware County, Case No. 16 CAA 12 0056 5

I

{¶15} “THE TRIAL COURT ERRED BY SENTENCING THE APPELLANT TO A

PRISON SENTENCE IN CONTRAVENTION OF THE SENTENCING STATUTES.”

II

{¶16} “THE TRIAL COURT ERRED BY IMPOSING A SIXTY FIVE YEAR

SENTENCE IN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES

CONSTITUTIONS PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT.”

{¶17} In her first assignment of error, appellant argues the trial court sentenced

her in contravention of sentencing statutes. Appellant does not, however, argue the court

failed to make the appropriate findings. Instead, she disagrees with the trial court’s

seriousness and recidivism findings pursuant to R.C. 2929.11 and 2929.12, as well as

the trial court’s consecutive sentence findings pursuant to R.C. 2929.14(C)(4). Appellant

argues the trial court’s findings were erroneous, and consecutive sentences were not

appropriate. While we find consecutive sentences appropriate, we agree that the record

does not support the trial court’s sentence under R.C. 2929.11 and 2929.12.

{¶18} When reviewing felony sentences we apply the standard of review set forth

in R.C. 2953.08(G)(2). That section specifies that an appellate court may increase,

reduce, modify, or vacate and remand a challenged felony sentence if the court clearly

and convincingly finds that “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” or Delaware County, Case No. 16 CAA 12 0056 6

“the sentence is otherwise contrary to law.” See State v. Velazquez, 5th Dist. Muskingum

No. CT2015-0043, 2016-Ohio-5203, ¶ 20.

{¶19} R.C. 2953.08(G)(2)(a) specifically mentions R.C. 2929.13, 2929.14(B)(2)(e)

and (C)(4), and R.C. 2929.20(I), but is silent as to R.C. 2929.11 and 2929.12, the

seriousness and recidivism factors. Recently, in State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23, the Supreme Court of Ohio addressed R.C.

2953.08(G)(2)'s omission of the factors under R.C. 2929.11 and 2929.12 as follows:

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.

{¶20} Thus “Marcum found an appellate court may increase, reduce, or otherwise

modify a sentence, or vacate the sentence and remand the matter to the sentencing court

for resentencing if the record does not support the sentencing court's findings under the

revised code sections enumerated in R.C. 2953.08(G)(2), as well as under R.C. 2929.11

and 2929.12.” State v. Jones, 8th Dist. Cuyahoga Nos. 103290, 103302, 2016-Ohio-7702,

¶ 102. Delaware County, Case No. 16 CAA 12 0056 7

{¶21} “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.” Velazquez, supra, at ¶ 21, citing Cross v. Ledford, 161 Ohio St. 469, 120

N.E.2d 118 (1954), paragraph three of the syllabus. In the instant matter, we find by clear

and convincing evidence the sentences herein are contrary to law.

{¶22} R.C. 2929.11(A) provides:

The overriding purposes of felony sentencing are to protect the public

from future crime by the offender and others and to punish the offender

using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local

government resources. To achieve those purposes, the sentencing court

shall consider the need for incapacitating the offender, deterring the

offender and others from future crime, rehabilitating the offender, and

making restitution to the victim of the offense, the public, or both.

{¶23} R.C. 2929.11(B) states:

A sentence imposed for a felony shall be reasonably calculated to

achieve the two overriding purposes of felony sentencing set forth in division

(A) of this section, commensurate with and not demeaning to the Delaware County, Case No. 16 CAA 12 0056 8

seriousness of the offender's conduct and its impact upon the victim, similar

offenders.

{¶24} R.C. 2929.12 outlines the seriousness and recidivism factors to be

considered by the sentencing court when fashioning a sentence that comports with the

goals of R.C. 2929.11.

{¶25} We do not minimize the seriousness of appellant's conduct. On this record,

however, we find the stated prison term of 65 years does not comply with the purposes

and principals of felony sentencing.

{¶26} Under R.C. 2929.12(B), relevant factors indicating appellant’s conduct is

“more serious,” three of nine factors apply. Under R.C. 2929.12(C) “less serious,” one of

four factors apply in that appellant did not cause or threaten physically harm to any person

or property.

{¶27} Under R.C. 2929.12(D) “likely to commit future crimes,” we find none of the

five factors apply. Under R.C 2929.12(E), “not likely” to commit future crimes, although

the PSI has not been included for our review, the trial court at the sentencing hearing

indicated appellant’s prior record contained only misdemeanors and those were “very

minor ones,” and “[appellant] had no record of juvenile delinquency activity.” Sent. Tr. 23-

25. Additionally, the court indicated that “the computerized risk assessment tool,”

(presumably in the PSI) “put the Defendant in the low to moderate risk category for

likelihood of reoffending.” Sent. Tr. 26.

{¶28} In this case the appellant was charged with an inordinate number of theft

offenses, over one hundred counts. She reached an agreement with the state to plead Delaware County, Case No. 16 CAA 12 0056 9

guilty to 31 felony counts and 15 misdemeanor counts. Plea Hearing Tr. 3-28. There was

no agreement reached with the state as to a joint recommendation on sentence. Appellant

had no prior felony offenses and only a minor adult misdemeanor record. She took

responsibility for her actions and pled guilty. At her plea hearing appellant admitted her

guilt. In fact she was truthful with the court to such a degree that she told the court about

previously unknown and uncharged theft offenses dating back to 2004. The earliest

indicted offense was count 50, which occurred sometime between the dates of April 1,

2008, and September 17, 2015. There is no indication anywhere in the record that any

victim was physically harmed, threatened with harm, or even ever present during the

offenses.

{¶29} A sentence of 65 is plainly excessive. It can be affirmatively stated that a 65

year sentence is a life sentence for appellant. Even a sentence of 20 years, considering

the purposes and principles of sentencing and weighed against the factual circumstances

of this case, would seem excessive.

{¶30} The sentence is an emotional response to very serious and reprehensible

conduct. However, the understandably strong feelings must be tempered by a sanction

clearly and convincingly based upon the record to effectuate the purposes of sentencing.

The sentence imposed here does not do so. It is disproportionate to the conduct and the

impact on any and all of the victims either individually or collectively. It runs the risk of

lessening public respect for the judicial system. The imposition of a 65 year sentence for

a series of non-violent theft offenses for a first-time felon shocks the consciousness. We

therefore find by clear and convincing evidence that the record does not support the

sentence. Delaware County, Case No. 16 CAA 12 0056 10

{¶31} We agree, however, with the trial court’s findings relating to the necessity

of a prison sentence, and that consecutive sentences are warranted.

{¶32} We therefore modify appellant’s sentence pursuant to R.C. 2953.08(G)(2)

as follows:

{¶33} In regard to the offenses of burglary in violation of Section 2911.12(A)(2) of

the Ohio Revised Code, each being a felony of the second degree as charged in Counts

1, 4, 6, 17, 21, 23, 25, 28, 30, 32, 42, 45, 53, 63, 69, 71, and 88, we order that appellant

be sentenced to 3 years on each count as previously ordered by the trial court. However,

we order that Counts 1, 4, and 6 be served consecutively to each other and concurrently

with Counts 17, 21, 23, 25, 28, 30, 32, 42, 45, 53, 63, 69, 71, and 88, for a term of nine

years of incarceration for these counts.

{¶34} In regard to the offenses of theft in violation of Section 2913.02(A)(1) of the

Ohio Revised Code, each being a felony of the fourth degree as charged in Counts 10,

13, 16, 20, 35, 40, 48, 50, 52, and 56, we order that appellant be sentenced to 12 months

on each count as previously ordered by the trial court. However, we order that Counts 10,

13, and 16 be served consecutively to each other and concurrently with Counts 20, 35,

40, 48, 50, 52, and 56, for a term of three years of incarceration for these counts.

{¶35} In regard to the offenses of theft in violation of Section 2913.02(A)(1) of the

Ohio Revised Code, each being a felony of the third degree as charged in Counts 37, 58,

61, and 67, we order that appellant be sentenced to 12 months on each count as

previously ordered by the trial court. However, we order that Counts 37, 58, and 61 be

served consecutively to each other and concurrently with Count 67, for a term of three

years of incarceration for these counts. Delaware County, Case No. 16 CAA 12 0056 11

{¶36} In regard to all misdemeanor counts of receiving stolen property, we make

no modification.

{¶37} Finally, we order that Counts 1, 4, 6, 10, 13, 16, 37, 58, and 61 be served

consecutively to each other for an aggregate term of 15 years of incarceration. Given the

facts of this case, we find 15 years incarceration consistent with the principles and

purposes of sentencing.

{¶38} In her second assignment of error, appellant argues her sentence

constitutes cruel and unusual punishment in violation of her Eighth Amendment

protections. Given our disposition of her first assignment of error, we do not reach the

merits of this assignment of error as it is moot. Delaware County, Case No. 16 CAA 12 0056 12

III

{¶39} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby reversed, and the matter is remanded to said court for the purpose of

resentencing, with instructions to modify appellant’s sentence in accordance with this

opinion.

By Wise, Earle J.

Delaney, P.J. and

Baldwin, J. concur.