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September 21, 2017

Ohio intermediate appeals court, finding functional LWOP sentence excessive for multiple burglaries, cuts 50 years off term

A helpful former student alerted me to an interesting state appeals court ruling in my own backyard handed down last week. Even though the ruling in State v. Gwynne, 2017-Ohio-7570 (5th Dist. Sept. 11, 2017) (available here), is pretty brief, the issues raised by both the case facts and the state appeals ruling could occupy an entire modern sentencing course. Here are some snippets that should prompt sentencing fans to check out the full opinion:

Defendant-Appellant [stole] 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. 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....

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.

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.

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....

Appellant was 55 years old at the time of her sentencing....

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....  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.

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.....

We agree, however, with the trial court’s findings relating to the necessity of a prison sentence, and that consecutive sentences are warranted.  We therefore modify appellant’s sentence pursuant to R.C. 2953.08(G)(2) ... [to reach] 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.

Though much can be said about this case, the scope of imprisonment considered at every level of this case startles me and yet I fear startles few others. Prosecutors, even after getting a plea, claimed that this woman at age 55 needed to be subject to 42 years incarceration, at the end of which she would be 97 years old.  The judge apparently decided that was not harsh enough, and thus imposed a sentence that would run until this woman was 130!  Thanks to an unusual appeals court ruling, this defendant now has to be grateful she will only be imprisoned until age 70.  Wowsa.

September 21, 2017 at 11:13 AM | Permalink


Assume she was 25, and will be released at 40.

Should collateral consequences of her conviction be stopped? Should future employers be forced to Ban the Box? Should future employers not be able to look up her criminal record? Should employers be prohibited from asking what she was doing between jobs for 15 years? Should the state not be allowed to report, "Sealed Record" and forced to report, "No Record?"

Should she be allowed to work in nursing homes? Should she be allowed to work at the unrelated job of cashier? Should she be allowed a cleaning job at hotels, at private homes, at business offices, at pharmacies?

Maybe Prof. Berman can ask those questions at his pro-criminal, hug-a-thug conference in October.

Posted by: David Behar | Sep 22, 2017 2:23:22 AM

D. Berman, C&C, 18 Sep 17: "I have not studied every federal capital case, but if the majority of folks on federal death row are like Roof, it is a travesty that it is taking decades to carry out their sentences."

1) "like Roof": Do you mean clearly guilty of pre-meditated murder? Yes, there are plenty I can show you like that.

2) "a travesty": Would I be passing the buck to say that you, as a law professor at "The" OSU, an energetic and cogitative
professional, might be the very one to tackle this?

2) a] As a moderate with more access to those left-of-center abolitionists who effect the "decades" of delay in justice
for convicted murders, could you not address them?

2) b] Consider Alan Dershowitz's honest activism. As a self-avowed Hillary voter, and a center-left Zionist, he nonetheless
directly contests Obama Admin. spying, Antifa violence and free-speech suppression, etc. He seems to make a great
impact! Might not you accomplish the same?

~~ http://www.newsmax.com/Headline/alan-dershowitz-dzokhar-tsarnaev-death-sentence/2015/05/15/id/644964/

Posted by: James Randall Adamakis | Sep 22, 2017 10:03:07 AM

Adamakis, though off topic, I will briefly respond by saying "like Roof" here means no doubt of guilt concerning premeditated killing of multiple people driven by a heinous motive and with no signs of regret or remorse even years later.

I would appreciate an accounting of how many of the roughly 60 folks on federal death row fit this description, especially one who have been on row 15 or more years. McVeigh did, and he got executed. Tsanarev seems to, but he has been on row only a few years. How many other fit? Would like to know.

Posted by: Doug B | Sep 22, 2017 11:42:31 AM

There are various "travesties" going on in the country these days, but the select group of heinous murderers that we sentenced to die [often with the clear realization that just what is happening would happen -- they wouldn't actually be executed; surely looking at the execution numbers of those on federal death row in the last fifty years gave us fair warning about this upfront when someone was sentenced let's say in 2002] not being executed is pretty far down there. I reckon this is true for many even if they support the death penalty. A young child, e.g., suffering is much more a 'travesty' in various cases.

Take someone like Roof. If he actually was executed in five years, to his appreciation fairly likely [would likely love to be a "martyr" & probably will soon find prison very tedious], how grand will it really be? Will the victims suddenly come back? Their families split over what should be done to him. So, can't merely appeal to them either. I also am not inclined to think Roof would harm someone in prison, at least to the degree the death penalty is so much clearly necessary for safety reasons either.

This doesn't even mean that the delay of execution lacks any problems. I'll be agnostic about that for the same of discussion. As to the lead article, obviously the woman is not going to live until she's 130. What is the real meaning of such extreme sentencing other than symbolism? Perhaps, Inspector Gadget knows. Also, does the state have parole? Is the final 15 years fixed?

Posted by: Joe | Sep 22, 2017 12:23:21 PM

“Those who would abolish capital punishment are not urging British to embark upon a new and hazardous experiment, or traverse uncharted seas, but merely to follow the lead of the many other countries where the death penalty as already dispensed with.”
Calvert Roy. Capital Punishment in the Twentieth Century. Putnam. London. 1927 p 45

Posted by: Claudio Giusti | Sep 22, 2017 2:16:44 PM

The Italian Death Penalty is a travesty.

Posted by: David Behar | Sep 22, 2017 3:37:37 PM

Think to the 1.500 persons killed EVERY YEAR by American police

Posted by: Claudio Giusti | Sep 23, 2017 2:22:01 PM

“Indeed, it would have been odd if it had transpired that Englishmen alone are so peculiarly brutal by nature that they require some special deterrent from murder which nearly all the civilised countries of the world have found unnecessary in practice - in many cases for generations.”
Gerald Gardiner, Capital Punishment as a Deterrent, London, Gollanz, 1956. p 56

Posted by: Claudio Giusti | Sep 23, 2017 2:23:47 PM

Claudio, police homicide is part of the Italian Death Penalty method.

Whites are over-represented among those killed lawfully by the police, when compared to their low crime rate vs. blacks. The police is committing genocide against white people in the US.

I live where Bill Otis was raised. It is 4 miles from a FAllujah like high crime area. Very little crime here. Shoplifting makes the local paper. Every couple of years, some kid does not get the memo. He comes to this area and pulls a gun at a convenience store. Within 2 minutes, 3 police cars arrive. The college educated police come out blasting, and the death penalty takes place at the scene. Meanwhile, a mile away, back in Philly, the police arrive 3 hours later to the same scenario, with their note pads out to take reports.

What is the difference? I live where the lawyers live, not where they work. We have a lower crime rate here than in Japan. The Italian Death Penalty really works for the lawyer and his family.

Posted by: David Behar | Sep 24, 2017 11:06:06 AM

I agree that 65 years for that, or even 30 years, is too much. I disagree with the idea that the defendant's age should be a consideration. If a 30-year-old were to receive a 30-year sentence for the same conduct, that would also be excessive.

Posted by: William Jockusch | Sep 26, 2017 1:25:07 AM

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