Appellate Review and Consecutive Sentencing: Another Change

“For more than 100 years, the common law- not state statute- controlled the imposition of consecutive sentences in Ohio.”1 Through changes made by either the Ohio General Assembly or interpretation of the statues passed by them, it is now presumed by state statute that prison terms are to be imposed concurrently2 and when a trial court wishes to impose consecutive sentences, that certain findings must be made.3

Gwynne has been back and forth, from the Fifth District Court of Appeals to the Ohio Supreme Court and back again. A majority opinion on this case was issued by the Supreme Court on December 23, 2022, which held “the findings required by R.C. 2929.14(C) (4) to impose consecutive prison sentences on an offender ‘must be made in consideration of the aggregate term to be imposed,’” and that “appellate review of consecutive sentences did not require appellate courts to defer to the sentencing court’s findings” but that the appellate courts could review the record de novo to “decide whether the record clearly and convincingly does not support the consecutivesentence findings.”4 Due to those findings being “contrary to the plain language of R.C. 2953.08(G)(2)”5 the Court granted a motion for reconsideration in early 2023.

Central to the court’s reconsideration is the language of R.C. 2953.08(G)(2), in which it was previously held that an appellate court is to review the record de novo. Now, however, appellate courts “may increase, reduce, or otherwise modify consecutive sentences only if the record does not ‘clearly and convincingly’ support the trial court’s * * * consecutive-sentence findings,” which is a correct expression of the General Assembly’s intent that a deferential standard to the trial court’s findings be followed.6 This now directs an appellate court that it must have a firm belief that the record does not support the trial court’s findings, rather than a firm belief that the record supports the findings, before it may modify consecutive sentences.

In reviewing the language of R.C. 2953.08(G)(2), the first dissent argues that the Court must first answer the question of what is meant in R.C. 2929.14(C)(4) by the terms “consecutive service” and “consecutive sentences,” stating that, as previously held, that there are multiple meanings that could be applied to these terms and one acceptable meaning is to look at the aggregate prison term that results from every count the court imposes.7 The majority opinion, conversely, holds that neither of those terms are synonymous with the term ‘aggregate sentence.’8

To add to this back-and-forth confusion over the issue of what is the standard of review, the concurring opinion points out that the record is not complete for the court to review it as required, regardless of the outcome. In the present case, the trial court reviewed the defendant’s presentence investigation report, however, this report never made it into the appellate record and was never reviewed by an appellate court.9 Thus, requiring the court to make a finding that the record does not not support the trial court’s findings, as the appellate courts are unable to review the record in its entirety. You read that correctly, does not not support the trial court’s findings, as the majority opinion holds that the statutory language does not require that “the appellate court have a firm belief or conviction that the record supports the findings,”10 simply that if it clearly and convincingly does not support the findings, that it may modify or vacate the consecutive sentences.11

The majority opinion acknowledges that should appellate review of consecutive-sentencing be done de novo, “[t]he legislature knows how to express whether a court should conduct a de novo review” and it did not do so in the present statutes.12

To say that this opinion raises more questions than it answers would be an understatement. For starters, there is now an open question as to the standard of review. The majority opinion states that “[t]he clear-and convincing standard for appellate review in R.C. 2953.08(G)(2) is written in the negative”13 and that the court must have a firm belief that the record does not support the trial court’s findings because “[o]rdinarily, appellate courts defer to trial courts’ broad discretion in making sentencing decisions,” and that R.C. 2953.08(G)(2) reflects that deference.14 The dissent, conversely, argues that R.C. 2953.08(G)(2) does not state that any deference must be given to a trial court’s findings.15 It also states that the clear and convincing standard referenced in R.C. 2953.08(G)(2) indicates that the legislature intended for the appellate court to act as a second fact finder when reviewing the trial court’s findings, rather than requiring the finding of a negative as the majority has found, because that standard is an evidentiary standard of proof, rather than a

By Samuel Saul Richardson, Esq. Shelby County Public Defender’s Office & Sinclair Community College SSRLaw@Outlook.com

standard of review.16

Additionally, the second dissent addresses the fact that without looking at the aggregate sentence, that justice is not being done as the defendant’s aggregate sentence is vastly longer than those that are typically imposed for this type of case.17 Further, that “Ohio’s citizens expect justice to be fair. Judge’s are given leeway under the state’s sentencing laws to ensure that fairness[,]”18 and by maintaining the standard of review given by the majority, that public confidence in the judiciary may be shaken.

Lastly, the concurring opinion reminds us that the question of aggregate sentencing and review thereof is far from settled law in Ohio. There is currently a pending case before the Supreme Court, State v. Glover, 19 that “presents an opportunity for this court to address whether an aggregate prison term is a factor in imposing or reviewing consecutive sentences.”20

For now, appellate review of consecutive sentences “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-sentencing findings, the analysis ends there.”21

ENDNOTES:

1. State v. Gwynne (“Gwynne V”), 2023-Ohio-3851 at ¶ 62 (Stewart, J., dissenting).

2. R.C. § 2929.41(A).

3. R.C. § 2929.14(C)(4).

4. Gwynne V at ¶ 2 (quoting State v. Gwynne (“Gwynne IV”), 2022-Ohio-4607 at ¶ 1-2).

5. Id. at ¶ 4.

6. Id. at ¶ 13.

7. Id. at ¶ 56 (Stewart, J., dissenting).

8. Id. at ¶ 21.

9. Id. at ¶ 38 (Fischer, J., concurring in judgment only).

10. Id. at ¶ 15.

11. Id. at ¶ 22.

12. Id. at ¶ 16.

13. Id. at ¶ 13.

14. Id. at ¶ 11 (quoting State v. Rahab, 2017-Ohio-1401 at ¶ 10 (lead opinion)).

15. Id. at ¶ 71 (Stewart, J., dissenting) (quoting Gwynne IV at ¶ 19).

16. Id. at ¶ 71 (Stewart, J., dissenting) (quoting Gwynne IV at ¶ 20), see also Id. at ¶ 73 (Stewart, J., dissenting).

17. Id. at ¶ 89 (Brunner, J., dissenting).

18. Id. at ¶ 95 (Brunner, J., dissenting).

19. Supreme Court Case No. 2023-0654.

20. Gwynne V at ¶ 45 (Fischer, J., concurring in judgment only).

21. Id. at ¶ 24.