When a judge's sentence is whack
You'd have a hard time mustering much sympathy for Susan Gwynne. She'd started working as a nurse's aide in various nursing homes in 2004, and over the next ten years or so made a habit of going into residents' rooms while they were away and stealing their stuff in order to feed her drug habit. When she was finally caught, the cops found plastic bins of stolen property in her house - everything from jewelry to credit cards to military dog tags. Forty-six different victims of the thefts were identified, and Gwynne ultimately pled out to seventeen counts of burglary, all second-degree felonies, plus fourteen counts of theft and fifteen of receiving stolen property.
So let's play "How Much Time Should She Get?" Her defense attorney valiantly, and vainly, asked for community control sanctions, but let's face it, you steal from old people in nursing homes for over a decade, you're going to prison. Maybe five years, maybe more. (Gwynne had no prior criminal record.) I've run the factual scenario by several dozen people, and the most I've gotten in response to the question is low double digits. Seems a bit much, but I can understand it.
The judge gave Gwynne 65 years.
The 5th District Court of Appeals decided that was ridiculous, and modified the sentence to fifteen years. The State appealed that, and now it's in the Supreme Court, where the case boils down to a simple question: what does a court of appeals do when a trial judge gives an objectively unreasonable sentence?
Because, let's face it, this is an unreasonable sentence. The State didn't think it was reasonable: they asked for a sentence 22 years less than the one the judge gave, and would have been happy to get one-third of what they asked for. There's no way that a person with no prior criminal record should get 65 years for a series of non-violent crimes.
The real question, though, is not what the court of appeals does with an unreasonable sentence, but how it determines whether the sentence is unreasonable. A number of people, including Your Faithful Correspondent, have bemoaned the fact that while everybody agrees that there should be meaningful appellate review of sentences, most everybody agrees that there isn't. There's language in court cases saying a judge has "unfettered discretion" in sentencing, and some courts have gone so far as to say that a sentence within the bounds set by the legislature is virtually immune from review. In Gwynne, the State essentially argues that the appellate court erred by considering the sentencing factors in RC 2929.12; according to the State, that's the trial judge's job, and the appellate court has no business even reviewing those.
I think there's an easy counter to that, and an easy answer to what the court of appeals should do in reviewing a sentence: follow the law. The Ohio legislature has set forth a comprehensive sentencing scheme. RC 2929.11 gives the purposes and principles of sentencing - punishment, deterrence, rehabilitation, and protection of society - and RC 2929.12 gives the factors the judge should use in making that determination: whether the offender's conduct is more or less serious, and whether the offender is more or less likely to recidivate. Walling off the appellate court from considering 2929.12 makes no sense; how is it to determine whether the sentence fulfills the purposes of sentencing if it can't consider the factors the judge is supposed to use in making that decision?
The State's brief in the Supreme Court trots out the customary parade of horribles, claiming that allowing the court of appeals greater review power will lead to appellate court's constant second-guessing of trial judge's sentencing decisions. That seems an empty claim. First, RC 2953.08 gives the court of appeals authority to modify, reverse, or vacate a sentence that it determines is clearly and convincingly unsupported by the record, which is what the 5th District did here. That's about as deferential a standard of review as you can find. Second, certain 2929.12 findings will be virtually immune from appellate review. For example, if a judge determines that a defendant lacks remorse, no appellate court is going to second-guess that: the judge had the opportunity to view the defendant in person.
The 5th District did what it should have done in this case, and it did it the way it should have done it: by looking at what the legislature laid out, and determining whether the judge's sentence comported with that.
There's one wrinkle in the case: as part of the plea, Gwynne agreed to waive her right to appeal the sentence. The 5th District brushed that aside, finding that the absence of any agreement on the sentence voided the waiver.
There's good reason to support that view. The State cites several cases where such a waiver was upheld, but in each one, the defendant received a substantial benefit: in one, the State agreed to drop death penalty specifications, and in the other, it dropped a specification which would have substantially increased the defendant's sentence. The State also relies on several Federal cases, but while a waiver of appellate rights is common there, it's limited to the imposition of a within-guidelines sentence; if the judge goes outside the guidelines, either party has the right to appeal.
Still, finding a valid waiver offers the Supreme Court a chance to avoid dealing how to define the proper role of the appellate court's in sentencing. That would be too bad; such a definition is long overdue.
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Coming Attractions. On Wednesday, we'll get back to the weekly summary of the 8th District's decisions, and on Friday we'll do a roundup of legal news and observations.
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