State v. Chapman ( 2016 )

[Cite as State v. Chapman, 2016-Ohio-8151.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104379
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LITRELL CHAPMAN
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART; REVERSED IN PART AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-96-345622-A
BEFORE: Jones, A.J., Kilbane, J., and E.T. Gallagher, J.
RELEASED AND JOURNALIZED: December 15, 2016
FOR APPELLANT
Litrell Chapman, pro se
Inmate No. 334-875
P.O. Box 901
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., A.J.:
{¶1} Defendant-appellant Litrell Chapman appeals the sentence on his convictions
for aggravated murder, aggravated burglary, and aggravated robbery. For the reasons
that follow, we affirm in part, reverse in part, and remand.
{¶2} Chapman was convicted of aggravated murder, aggravated burglary, and
aggravated robbery in the May 30, 1996 shooting death of David White. On April 11,
1997, he was sentenced to life imprisonment without parole eligibility for twenty years on
the aggravated murder conviction, consecutive to concurrent terms of ten to twenty-five
years on the aggravated burglary and aggravated robbery convictions. His convictions
were affirmed on appeal, but this court remanded the case for resentencing on the
aggravated burglary and aggravated robbery counts in accordance with S.B. 2. State v.
Chapman, 8th Dist. Cuyahoga No. 72532, 1998 Ohio App. LEXIS 3042, * 15 - * 16 (July
2, 1998) (“Chapman I”). In Chapman I, this court noted that it was bound to follow its
own precedent, established in the en banc decision of State v. Delgado, 8th Dist.
Cuyahoga No. 71497, 1998 Ohio App. LEXIS 1615 (Apr. 9, 1998), that a defendant who
commits an offense prior to the July 1, 1996 effective date of S.B. 2, but is sentenced
after that date to a term of incarceration, is entitled to be sentenced in accordance with
S.B. 2. Chapman I at *15.
{¶3} On remand, the trial court resentenced Chapman to life imprisonment without
parole eligibility for twenty years on the aggravated murder conviction, consecutive to
concurrent terms of ten years on the aggravated burglary and aggravated robbery
convictions. From 2001 to 2011, Chapman filed numerous motions for new trials and
postconviction relief, all of which the trial court denied. His various appeals were
dismissed by this court. See State v. Chapman, 8th Dist. Cuyahoga Nos. 79812, 80787,
89416, and 96580.
{¶4} In 2016, Chapman filed a motion for resentencing. The trial court denied
his motion. He filed a timely notice of appeal, but subsequently moved to dismiss his
appeal for lack of subject matter jurisdiction. This court denied his motion.
{¶5} In his pro se appeal, Chapman raises one assignment of error in which he
claims the trial court erred when it denied his motion for resentencing. Chapman claims
that he is entitled to a de novo resentencing on all of the counts.
{¶6} Subsequent to this court’s decision in Chapman I, the Ohio Supreme Court
decided State v. Rush, 83 Ohio St. 3d 53, 697 N.E.2d 634 (1998). In Rush, the court held
that the sentencing provisions of S.B. 2 apply only to those crimes committed on or after
July 1, 1996. Id. at paragraph two of the syllabus. Chapman committed his crimes on
May 30, 1996.
{¶7} The trial court initially properly sentenced Chapman under the pre-S.B. 2
sentencing scheme, but, upon remand from this court, vacated that sentence, and
sentenced him to a definite term. Thus, because Chapman committed the crimes prior to
the effective date of S.B. 2, the pre-S.B. 2 sentencing scheme should have controlled the
trial court’s imposition of sentence. See State v. Gates, 8th Dist. Cuyahoga No. 93789,
2010-Ohio-5348, ¶ 6. The state concedes the error.
{¶8} Chapman’s sentence, however, is not void and he is not entitled to a de novo
resentencing. R.C. 5145.01 provides that
[i]f, through oversight or otherwise, a person is sentenced to a state
correctional institution under a definite term for an offense for which a
definite term of imprisonment is not provided by statute, the sentence shall
not thereby become void, but the person shall be subject to the liabilities of
such sections and receive the benefits thereof, as if the person had been
sentenced in the manner required by this section.
{¶9} Under this statute, if a determinate sentence is imposed instead of a statutorily
required indeterminate sentence, the determinate sentence is treated as an indeterminate
one. State v. Lauharn, 2d Dist. Miami No. 2010-CA-35, 2011-Ohio-4292, *4; see also
Gates at ¶ 8 (concluding that the definite-term sentence imposed for a pre-S.B. 2 offense
was not void but deemed an indefinite sentence under R.C. 5145.01); State v. Whitehead,
10th Dist. Franklin No. 90AP-260, 1991 Ohio App. LEXIS 1324 (Mar. 28, 1991) (after
finding no error with the defendant being resentenced to an indeterminate sentence from a
determinate one, the court noted that “it is at least arguable that the proper [indeterminate]
sentence * * * would be applied as a matter of law pursuant to R.C. 5145.01.”).
{¶10} In Gates, the defendant was sentenced to a term of ten to 25 years for two
counts of rape. The defendant requested a definite sentence under S.B. 2 and the trial
court vacated his original sentence and resentenced him to ten years on the counts, to be
served concurrently. He then filed a motion for resentencing based on postrelease
control and was resentenced to an indefinitie term of ten to 25 years on the two counts of
rape, to be served concurrently. This court held that pursuant to R.C. 5145.01, his
definite term sentence on the two counts of rape was to be deemed under the statute as an
indefinite sentence. Id. at ¶ 8.
{¶11} Chapman’s convictions for aggravated burglary and aggravated robbery,
under former law, carry minimum terms of five to ten years and a statutorily mandated
maximum term of 25 years in prison. See former R.C. 2929.11(B)(1)(a). Though the
trial court erred when it resentenced Chapman to a definite term on the aggravated
burglary and aggravated robbery counts, the sentences on those counts may be deemed to
be indeterminate sentences, as required by R.C. 2929.11(B)(1)(a), with the ten-year term
as the minimum indefinite term and 25 years as the maximum indefinite term.
{¶12} In light of the above, the sole assignment of error is sustained in part.
{¶13} The judgment of the trial court is reversed and remanded only for the trial
court to correct its sentencing entry with respect to the aggravated robbery and aggravated
burglary counts to reflect that the sentences, by operation of R.C. 5145.01, are
indeterminate sentences with ten-year definite terms as the minimum and 25 years the
maximum consecutive to Chapman’s 20-years-to-life sentence for aggravated murder.
It is ordered that appellant and appellee split the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., ADMINISTRATIVE JUDGE
MARY EILEEN KILBANE, J., and
EILEEN T. GALLAGHER, J., CONCUR