State v. Leegrand

[Cite as State v. Leegrand, 2020-Ohio-3179.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108626
v. :
TYRONE LEEGRAND, II, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: June 4, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-17-623531-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Katherine E. Mullin and Brad Meyer,
Assistant Prosecuting Attorneys, for appellee.
Thomas Rein, for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant Tyrone Leegrand, II, appeals his convictions.
He raises five assignments of error for our review:
1. The trial court erred by failing to grant a judgment of acquittal,
pursuant to Crim.R. 29[A], on the charges, and thereafter entering a
judgment of conviction of that offense as those charges were not
supported by sufficient evidence, in violation of defendant’s right to
due process of law, as guaranteed by the Fourteenth Amendment to the
United States Constitution.
2. Appellant’s convictions are against the manifest weight of the
evidence.
3. The trial court erred in the admission of hearsay evidence and
testimonial statements, in violation of Appellant’s right to confront his
accusers, as protected by the Sixth Amendment of the United States
Constitution.
4. The trial court erred by ordering Appellant to serve a consecutive
sentence without making the appropriate findings required by R.C.
2929.14 and HB 86.
5. The trial court erred by ordering Appellant to serve an improper
sentence.
Finding merit to his final assignment of error, we affirm Leegrand’s
convictions but vacate his sentence and remand to the trial court for resentencing.
I. Procedural History and Factual Background
The charges in the case arose from events that took place on June 10,
2013. At 11:13 p.m. that night, Nunzio’s Pizza on Lorain Avenue received a call for a
pizza order to be delivered to 5822 Bridge Avenue. In the early morning of June 11,
2015, Nunzio’s driver, Michael Prock, drove to 5822 Bridge Avenue with the pizza
order in his green Buick. Witnesses saw Prock get out of his car, speak with
someone, get back in his car, and, with the pizza order still in his vehicle, start to
drive away. He turned onto West 59th Street and drove toward Ellen Avenue. As
he drove down West 59th Street, someone shot at his vehicle from behind. One
witness who knew Leegrand testified that she saw him shoot at Prock’s vehicle. She
described his gun as “black and clunky * * * like a Hi-Point.” One of the bullets
struck Prock. Prock turned left onto Ellen Avenue, crashed into a parked silver
Pontiac, and came to a stop near the sidewalk in front of a home located at 6110
Ellen Avenue. Prock passed away within seconds or minutes after he was shot. The
shooter fled. Police found a broken cell phone and four spent shell casings near 5822
Bridge Avenue. The cell phone had been stolen on June 6, 2015, and someone used
it to order the pizza from Nunzio’s on June 10. The spent shell casings were later
connected to a Hi-Point 9 mm semiautomatic pistol found in the oven of an Akron
townhome that Leegrand had visited in June 2015. Leegrand’s girlfriend and friend
both testified that Leegrand told them that he was responsible for the pizza delivery
homicide.
In December 2017, over two years after Prock’s death, Leegrand was
indicted on ten counts as follows:
Count 1: Aggravated murder in violation of R.C. 2903.01(A), an
unclassified felony, with one- and three-year firearm
specifications;
Count 2: Aggravated murder in violation of R.C. 2903.01(B), an
unclassified felony, with one- and three-year firearm
specifications;
Count 3: Murder in violation of R.C. 2903.02(B), an unclassified
felony, with one- and three-year firearm specifications;
Count 4: Felonious assault in violation of R.C. 2903.11(A)(1), a
second-degree felony, with one- and three-year firearm
specifications;
Count 5: Felonious assault in violation of R.C. 2903.11(A)(2), a
second-degree felony, with one- and three-year firearm
specifications;
Count 6: Aggravated robbery in violation in R.C. 2911.01(A)(1), a
first-degree felony, with one- and three-year firearm
specifications;
Count 7: Aggravated robbery in violation in R.C. 2911.01(A)(3), a
first-degree felony, with one- and three-year firearm
specifications;
Count 8: Carrying a concealed weapon in violation of R.C.
2923.12(A)(2), a fourth-degree felony;
Count 9: Tampering with evidence in violation of R.C.
2921.12(A)(1), a third-degree felony; and
Count 10: Having weapons while under disability in violation of R.C.
2923.13(A)(2), a third-degree felony.
In January 2018, Leegrand pleaded not guilty to all ten counts. In
March 2019, Leegrand waived his right to a jury trial as to Count 10, having weapons
while under a disability, which was tried to the bench. On March 4, 2019, an eight-
day jury trial ensued on the remaining nine counts.
A. The State’s Evidence Presented at Trial
1. The Crime Scenes on Bridge and Ellen Avenues
Tanika Givhan testified that on June 11, 2015, she parked her red
Chrysler on Ellen Avenue and walked with her friend Trell to Bridge Avenue to wait
for her girlfriend to arrive home. Givhan testified that while on Bridge Avenue, she
saw and spoke with Leegrand and her friend Chris. Givhan said that she had known
Leegrand for “a few years” as “T.Y.” She said that Leegrand was wearing dark
clothing.
Givhan testified that she saw a vehicle pull up to the corner of Bridge
Avenue and West 59th Street, which she described as an ally, and Leegrand crossed
Bridge Avenue to meet the driver. She said that the driver exited the car, Leegrand
and the driver talked, and the driver got back in his car, turned onto West 59th
Street, and started to drive toward Ellen Avenue. She then saw Leegrand shoot “at
the car” once, wait about three seconds, and then fire seven to eight more shots. She
stated that Leegrand then “disappeared.” She testified that she saw Leegrand’s gun
as he was firing it and described it as “black and chunky * * * like a Hi-Point.”
Givhan testified that she and Chris approached the wrecked Buick on
Ellen Avenue. 1 She did not know where Trell went. She stated that the driver was
bloody and looked like he was dying. She testified that some of the neighbors came
outside, and a younger white male called 911. Givhan testified that after she saw the
driver, she and Chris got in her red Chrysler and left the scene.
Givhan testified in prison clothes because she was serving a five-year
prison term for an aggravated robbery conviction in Lake County. She had dreads
at trial and identified a photo of herself with dreads from June 2015. On cross-
examination, Givhan admitted that the state told her that if she testified in this case,
it would recommend to the Lake County judge in her aggravated robbery case that
she be released from prison before the end of her five-year sentence. She also
1 West 59th Street dead ends at Ellen Avenue on one end and at Bridge Avenue on
the other end. Where West 59th Street dead ends on Ellen Avenue, vehicle traffic must
turn left because Ellen Avenue is a one-way street in that direction. Thus, Prock turned
left onto Ellen Avenue before crashing into a parked car.
admitted that she had not spoken to police or anyone from the prosecutor’s office
about what she witnessed on June 11, 2015, until after she was arrested for
aggravated robbery in September 2016. On redirect examination, Givhan testified
that she was previously unwilling to testify because she feared for her safety and her
family’s safety if she testified against Leegrand.
Scott Carney, who lived on Ellen Avenue, testified that in the early
morning of June 11, 2015, he was on his porch when he heard three to four “booms,”
squealing tires, and a loud crash all within approximately ten seconds. He testified
that from his driveway he saw an African-American male with “poofy hair,” a short
goatee, and a greenish-black hooded sweatshirt with the hood halfway up, just
covering his ears. He stated that the male was walking on the sidewalk on West 59th
Street toward Ellen Avenue. Carney said that when the man got to Ellen Avenue, he
turned right and walked down Ellen Avenue toward West 58th Street, which was the
opposite direction from where the vehicle had crashed. Carney testified that the man
did not look like he had any physical disabilities and was not using crutches. Carney
stated that West 59th Street is well lit, but Ellen Avenue is darker with not many
streetlights.
Carney “turned [his] focus on the accident site” and “went into help
mode.” As Carney was walking toward the accident, he saw two African-American
males standing in the middle of Ellen Avenue near a red car that was parked on the
street. He stated that one of them had dreads and other one had shorter hair.
Although he believed that they were both males, he identified a photo of the one with
dreads, who the state later established was Givhan.
Carney could tell that the two people were “in shock and disbelief”
because the one with dreads had “a shakiness” to her voice. Carney said the one with
dreads pulled out a cell phone, and Carney grabbed it to call 911 as they all
approached the wrecked Buick. Carney noticed as he approached the Buick that it
had what appeared to be a bullet hole on the back panel of the car. He then realized
that a shooting had occurred. Carney handed the phone back to the person with
dreads so that he could help the victim.
Carney said that when he reached the Buick, it was still idling, and the
driver was struggling to breathe. Carney reached inside the open driver’s side
window and turned off the car. Carney explained that the person with dreads was
“freaking out” and could not talk to the 911 operator, so Carney took the phone back
and reported the location. Carney tried not to touch anything but said that he held
the driver’s head in his hands and “said a prayer over him.”
Carney testified that after he ended the 911 call, the person with
dreads said “that she couldn’t be there.” She grabbed her phone back, snapped a
picture of the victim, got in the red car with her friend, who had gone to get the car,
and drove away.
Brandon Isner, another Ellen Avenue resident, testified that in the
early morning of June 11, 2015, he heard three to six “cracks” that he suspected to
be gunshots very close to his house. He came outside and saw Carney and Carney’s
girlfriend running toward a car that looked like it was parked on Ellen Avenue, which
he described as “a very narrow, very small street.” Isner said that he followed
Carney, that Carney told him someone had been shot, and that Carney was “basically
leaning in the [Buick]” trying to hold the victim’s head up. Isner testified that “there
was blood all over the car.” Isner said that Carney’s girlfriend called 911, but the
driver appeared to have passed away about a minute before emergency medical
personnel arrived. Isner testified that before the police and ambulance arrived, an
African-American male and female in their fifties were walking down Ellen Avenue.
He said they approached the Buick briefly, but they did not stop.
Officer Tony Gonzalez testified that in the early morning of June 11,
2015, he and his partner received a radio broadcast “for shots fired” near West 58th
Street and Bridge Avenue. He stated that they drove to that area to patrol, and
approximately ten minutes later, they received a radio broadcast for an accident at
6110 Ellen Avenue. He testified that they drove to Ellen Avenue and saw that a green
Buick had hit a parked silver Pontiac. Officer Gonzalez testified that the Buick’s
driver “looked deceased,” and there were “holes in his car.” Officer Gonzalez
testified that as he approached the vehicle, he recognized the deceased man as “a
pizza delivery guy” from Nunzio’s.
After securing the scene on Ellen Avenue, Officer Gonzalez and his
partner went to Nunzio’s, learned that the Buick driver was Michael Prock, and
obtained Prock’s delivery route. Officer Gonzalez stated that the first address on
Prock’s delivery route was 5822 Bridge Avenue, so they drove to that address.2
Officer Gonzalez testified that he and his partner found broken glass and four spent
shell casings on the ground near 5822 Bridge Avenue, as well as part of a broken flip
phone on the front lawn of a house across the street from where they found the spent
shell casings. Officer Gonzalez testified that Bridge Avenue was “pretty dark,” even
with the operating streetlights.
The officers spoke with Kelley Qolak, who lived near 5822 Bridge
Avenue and called 911 to report the gunshots on Bridge Avenue. Officer Gonzalez’s
body camera recorded Qolak telling the officers that after hearing the shots, she
looked out of her window and noticed three males on both sides of Bridge Avenue
“hiding by trees and just like hiding in the shadows [.]” She described the males as
African-American and approximately 16 or 17 years old. She said that after the shots
were fired, the males ran down Bridge Avenue, and that one of the males was
wearing an orange hooded sweatshirt.
2. The Forensic Examinations
Detective Gregory Cook, a homicide investigator with the Cleveland
Police Department, testified that he sent Prock’s vehicle to be processed for
fingerprints. Police found only Carney’s fingerprints on the door handle. Detective
Cook also requested that the Medical Examiner’s Office test the shell casings and the
flip phone pieces for DNA. Detective Cook testified that he took Leegrand’s buccal
swabs, and Leegrand’s DNA did not match any of the crime-scene evidence.
2 5822 Bridge Avenue is on the corner of West 59th Street and Bridge Avenue.
Dr. Dan Galita, a forensic pathologist who performed an autopsy on
Prock on June 11, 2015, testified that Prock’s death was a homicide caused by a
gunshot wound. Dr. Galita estimated that Prock passed away within seconds to
minutes after he was shot. He testified that Prock was shot one time in the right
back from more than three feet away, likely from behind and from the right side of
the vehicle. Dr. Galita explained that the bullet was still in Prock’s body at the time
of the autopsy, and that he recovered it and submitted it to the firearms department
of the Medical Examiner’s Office. Dr. Galita reviewed Prock’s toxicology report as
part of the autopsy, and that the toxicology report showed “recent cocaine use,
probably a few hours before his death.”
Curtiss Jones, a supervisor of the Trace Evidence Unit of the
Cuyahoga County Medical Examiner’s Office, testified that he examined Prock, his
clothing, and the vehicle in which he was brought to the Medical Examiner’s Office.
Jones’s trace evidence report was admitted into evidence. He explained that Prock’s
shirt contained no gunpowder, grease, or nitrates, signifying that Prock was shot
from a distance. Jones testified that Prock’s vehicle contained no drugs, firearms,
or contraband. He stated that the driver’s side seat contained a bullet hole, the front
windshield was struck by a bullet from the inside of the car, and the rear windshield
and the rear driver’s side window were broken due to bullet damage. Jones testified
that he accounted for three bullets that entered Prock’s vehicle, but that there may
have been more. When defense counsel asked Jones on cross-examination if a shot
“could have been fired from someone that was talking to the driver through the
driver’s window,” Jones responded, “it couldn’t have been fired that way.”
3. The Cell Phone Found on Bridge Avenue
Nicole Serpone, who managed Nunzio’s pizza in June 2015, testified
that at 11:13 p.m. on June 10, 2015, a man ordered pizza to be delivered to 5822
Bridge Avenue. She stated that Nunzio’s had delivered to 5822 Bridge Avenue
several times before, but the phone number used that night, 216-***-8697 (the “-
8697 number”), did not match the phone number previously used to place orders to
that address.
Luis Sepulveda testified that he had a cell phone with the -8697
number, but that the phone was stolen from his girlfriend, Evelyn Santiago.
Santiago testified that around midnight on June 6, 2015, she was walking on the
corner of West 65th Street and Colgate Court when someone approached her from
behind and stole her purse, which contained her bank cards, her cell phone, and
Sepulveda’s cell phone. She testified that she did not see her assailant, and at trial,
she did not recognize Leegrand. The state showed Santiago and Sepulveda two
pieces of the flip phone found near 5822 Bridge Avenue on June 11, 2015, and they
both identified the phone as Sepulveda’s with the -8697 number.
Mark Wilson, who in June 2015 was a staff operations specialist for
the Federal Bureau of Investigations, worked with the Cleveland Police Department
on this case. He testified that Detective Cook gave him the call-detail records for the
-8697 number. Wilson searched law enforcement and open source databases,
targeting the dates June 10 and 11, 2015, to identify people who called or received
calls from the -8697 number. Wilson stated that around the same time as the
Nunzio’s pizza calls, he noticed three calls with a number ending in -3172, which was
associated with a Facebook name, “Mocha S. Monae.” He compiled the information
he found into an Excel spreadsheet, which was admitted into evidence.
Asia Thomas testified that in June 2015, she used the name “Mocha
Monae” for her Facebook account, and her phone number ended in -3172. She went
to high school with Leegrand, and he was her brother’s friend. She stated that she
and Leegrand were not friends in school, but she would see him “around the
neighborhood.” She said that in 2015, she talked to Leegrand “here and there.” She
stated that Leegrand had her phone number, and they were Facebook friends. The
state showed Sepulveda’s phone records and Wilson’s spreadsheet to Thomas. She
testified that she did not know Sepulveda, and she had no memory of the calls on
June 11, 2015.
4. Leegrand’s Statements to Friends and Family
Rochell Ford, Leegrand’s aunt, testified that Leegrand stayed at her
house “every other day * * * when he had nowhere else to go.” She had met
Leegrand’s girlfriend, Audriana Watson. She testified that sometime before June
16, 2015, Leegrand and Watson were in Cleveland staying at her house, and she
dropped them off at a bus stop downtown so they could take a bus to Akron. She
stated that sometime later in June 2015, Watson called her. She described Watson
as drunk and “a wreck” on the phone. She testified that after she talked to Watson,
she called Leegrand’s mother and told her that “her son killed the pizza man.”
Defense counsel objected to Ford’s statement and moved for a
mistrial, arguing that Ford’s testimony that she told Leegrand’s mother that her “son
killed the pizza man” was improper hearsay testimony. The state responded that the
testimony was not hearsay because Ford, who was on the stand, was the declarant.
The state further argued that the foundation for Ford’s statement was her phone call
with Watson, and that Watson would testify next. After a brief recess, the trial court
sustained defense counsel’s objection, denied the motion for a mistrial, and
instructed the jury to disregard Ford’s statement that she told Leegrand’s mother
that “her son killed the pizza man.”
Ford further testified that Leegrand called her from the Summit
County jail on June 16, 2015, and she confronted him about what Watson had told
her.3 Ford testified, and the recording played to the jury shows, that on the call
Leegrand confirmed that he did tell Watson “exactly what was said.” Ford stated
that she did not believe Leegrand when he told her, “I ain’t never say I did sh*t,” and,
“I know somebody who seen what — [.]”
Ford further testified that she told Detective Bob Beveridge what she
had learned from Watson about the shooting. As a result of Ford’s information,
Crime Stoppers rewarded Ford with $1,500. Ford testified that she did not want the
3 Leegrand submitted a booking report from the Summit County Sheriff’s Office
into evidence, which stated that Leegrand arrived at the Summit County Jail on June 15,
2016, for unrelated charges.
money, but she did accept it. Detective Beveridge testified that he received a call
from Ford, whom he had known for years from his involvement in the
neighborhood, and he went to her house to talk to her and her daughter. Detective
Beveridge testified that he was told that someone by the name of “Rio” wanted to
talk to him. Detective Beveridge and Ford called Rio, with Detective Beveridge’s
body camera recording the conversation. Detective Beveridge testified that he then
began to investigate Rio, Rio’s girlfriend, and Leegrand. Detective Beverage stated
that he sent the information to the Homicide Unit.
Audriana Watson testified that she dated Leegrand for approximately
six months in 2015, but she knew him by the names of “Adrian Benson” and
“Drizzy.” She testified that in 2015, Leegrand had “a top fro, curly fro” and “a full
connect, a beard and a mustache.” Watson stated that Leegrand did not have any
crutches or a walking boot with him at the time, and he did not appear to be
physically disabled.
Watson testified that in early June 2015, Leegrand called and told her
to read an online article about a pizza delivery man who had been shot. Watson
testified that Leegrand did not tell her anything about the article other than to read
it. Watson said that she read the article and called Ford. Watson denied being drunk
on this call but described herself as “hysterical,” “scared,” and “worried.” Watson
testified that she told Ford that Leegrand told her to read the article and that Watson
thought Leegrand “was the one that did it.”
Watson stated that sometime thereafter, Leegrand came to her
mother’s house in Akron, where Watson was living at the time. She thought that the
visit took place before June 16, but she was not certain. Watson testified that
Leegrand told her that he had done “something bad, and he was apologizing.” She
testified that Leegrand told her that “basically this guy tried to rob him and tried to
pull off, and then he shot him.” Leegrand further told her that “[b]asically, it was a
drug deal gone bad.” Watson explained that Leegrand stated he “walked up to the
car to deliver some drugs, the guy snatched the bag and tried to pull off, and when
he tried to pull off, that’s when he shot him.” When the prosecutor asked Watson
how she knew that Leegrand was talking about the pizza delivery guy, Watson
replied, “Because for probably a week or so that’s the only situation that I had talked
to him about.” Watson stated that Leegrand had a black gun on him when she was
talking to him on the porch and told her that he was going to kill himself. Watson
testified that she recognized the Hi-Point gun that the state presented to her at trial.
She stated that it looked like the gun that Leegrand had with him when they spoke
at her mother’s house.
The state played four recorded phone calls from the Summit County
jail between Leegrand and Watson that took place on June 16, 2015. Watson
testified that Leegrand was upset with her for calling Ford and directed her not to
answer calls from phone numbers that she did not recognize. The call recordings
reflect that Leegrand yelled at Watson, “What the f*ck is wrong with you? * * * Do
you understand what the f*ck you just did? * * * You just f*cked up my whole life.”
Leegrand directed her to not talk to anyone else, and to change her phone number.
Watson testified that she had no further conversations with Leegrand
about the pizza delivery homicide. He tried calling her, but she would not answer.
Watson stated that about two weeks after the porch conversation, she received
threatening calls from random numbers “telling [her] not to say anything and that
they knew where [she] lived.”
China Kelley, who appeared at trial in jail clothes for failing to appear
to testify in this case, testified that she knew Leegrand as “Drizzy” and met him
through friends in Akron in 2015 or 2016. Kelley stated that the last time she saw
Leegrand, he used her phone to show her a video on YouTube of a news story
reporting the death of a pizza delivery man. Kelley testified that Leegrand told her,
“You know I did that.” Kelley stated that she did not believe Leegrand because “he’s
a character. He is very dingy. You never know what you [are] going to get out of
him.” She stated that at the time, Leegrand had “a curly fro” and was not using
crutches to walk.
5. The Gun Used to Shoot Prock
Ashley Pawlak, who manages an apartment complex in Akron,
testified that one of her tenants, Amanda Freeman, moved out of her townhome on
June 29, 2015. Pawlak testified that she inspected the townhome with a
maintenance employee and found a black gun inside the oven. Pawlak called the
police. An officer from the Akron Police Department testified that on June 30, 2015,
he went to the townhome to pick up the gun, which was a black a Hi-Point 9 mm
semiautomatic pistol. A firearms examiner at the Cuyahoga County Regional
Forensic Laboratory conducted a forensic analysis on the Hi-Point and the four
spent shell casings that were found at 5822 Bridge Avenue on the night of Prock’s
death. The firearms examiner found that all four spent shell casings were fired from
the Hi-Point gun. The examiner also determined that the pellet and fragments
recovered from Prock’s body had “no analytical value.”
Amanda Freeman testified that she rented a townhome in Akron from
March 2014 through the end of June 2015. She stated that she resided in the
townhome by herself but often had friends over. Freeman testified that before she
moved out, she had frequently been traveling between Akron and Minnesota, and
she was not physically living in the townhome after May or early June 2015. She
testified that her best friend, Rio, had brought over somebody named “Drizzy”
toward the end of the time that she was living in the townhome, and they all smoked
marijuana together. Freeman stated that she used her oven often, does not like
guns, had no contact with guns while staying in the townhome, and did not put a
gun in her oven. She testified that she did not know there was a gun in her oven
when she moved out of the townhome, and she did not know how it got there.
Freeman stated that the deadbolt on her back door was loose, and somebody could
have entered her townhome through the back door. She testified that Rio was the
only person who knew that she was leaving the townhome at the end of June.
Demario Carpenter, who also went by “Rio,” testified that Leegrand
periodically lived with him in Akron “on and off” for “two or three months at a time,”
and that Leegrand was living with him in June of 2015. Carpenter knew Leegrand
as “Drizzy.” Carpenter stated he had gone to Freeman’s townhome with Leegrand
once or twice. He testified that in sometime in June 2015, Leegrand called him and
asked for a ride from a bus stop in Akron. Leegrand had just arrived in Akron on a
bus from Cleveland. Carpenter stated that when he picked up Leegrand, Leegrand
kept repeating, “I’m a savage.”
On June 16 and 17, 2015, Leegrand called Carpenter from the Summit
County Jail. On the recorded calls, which were played to the jury, Carpenter told
Leegrand that he was upset because Carpenter had received “a million” calls from
detectives and Leegrand’s girlfriend and aunt asking Carpenter about the death of
the Nunzio’s pizza delivery man. In response, Leegrand told Carpenter to block all
numbers with the Cleveland area code 216.
At the end of the state’s case, Leegrand moved for a Crim.R. 29(A)
acquittal. The trial court denied the Crim.R. 29(A) motion without explanation.
B. Leegrand’s Evidence Presented at Trial
Leegrand called two witnesses on his behalf: Cortilya Hearst and
Kelley Qolak. Hearst, Leegrand’s cousin, testified that in June 2015, she, her adult
children, and Leegrand were living together in Twinsburg. She stated that Leegrand
lived with her for at least two years and spent every night in her residence. She
testified that Leegrand is the same age as her son, and the two had a curfew of
midnight. She stated that she did not allow her son or Leegrand to bring women
into the home, and she never met any of Leegrand’s girlfriends.
Hearst testified that sometime in June 2015 (she did not remember
exactly when), Leegrand broke his leg and fractured his foot while he and her son
“were doing things that boys always are not supposed to do,” such as “climbing
trees.” His injury required him to wear a “boot cast” for six months and use crutches
to walk. She stated that she did not know precisely how Leegrand injured his leg
and foot, and she did not remember exactly which hospital he visited. She described
Leegrand in 2015 as having “a little” facial hair and “short and curly” hair.
Qolak testified that in 2015, she lived at 5811 Bridge Avenue, on the
second floor with an unobstructed, well-lit view of Bridge Avenue below. She
testified that shortly after midnight on June 11, 2015, she was in bed when she heard
five to eight gunshots. She stated that she immediately looked out the window and
saw the taillights of “a car speeding away down” West 59th Street, which she
described as an alley, toward Ellen Avenue. She further testified that she saw three
African-American teenagers, who she thought to be 16 or 17 years old. She stated
that one was standing on a tree lawn, a second in a driveway, and a third on the
sidewalk, who “turned around and was shooting as he was starting to run.” She
explained that they met up on the sidewalk, ran down Bridge Avenue, and turned
onto West 58th Street.
Qolak testified that the shooter was using a pistol. She stated that one
of the teenagers was wearing a florescent orange hooded sweatshirt with the hood
up, but she does not remember which one. At trial she stated that she did not
recognize Leegrand and did not remember seeing him on June 11, 2015. Qolak
testified that she called 911 after hearing the gunshots, and police arrived
approximately ten minutes later. The police interviewed Qolak in her home and
observed the view from her bedroom windows.
The parties stipulated to the admission of a booking report from the
Summit County Sheriff’s Office. The report states that Leegrand arrived at the
Summit County Jail on June 15, 2015, for unrelated charges. The report identifies
Leegrand’s belongings, which included only one shoe. The report also includes a
note from July 2, 2015, which states, “Inmate no longer wears his walking boot.
Inmate wears his jail sandals around the pod.”
Leegrand renewed his Crim.R. 29 motion at the close of his case-in-
chief, and the trial court again denied the motion without explanation.
C. The Jury’s Verdict
After deliberations, the jury found Leegrand not guilty of Counts 1 and
2, aggravated murder, and Counts 6 and 7, aggravated robbery. The jury found
Leegrand guilty of Count 3, murder, with the one- and three-year firearm
specifications; Count 4, felonious assault, with the one- and three-year firearm
specifications; Count 5, felonious assault, with the one- and three-year firearm
specifications; Count 8, carrying a concealed weapon; and Count 9, tampering with
evidence. The trial court found Leegrand guilty of Count 10, having weapons while
under a disability. The trial court referred Leegrand to the Probation Department
for a presentence investigation report.
D. Sentencing
The trial court ordered that Counts 4 and 5, felonious assault, merge
into Count 3, murder. The firearm specifications associated with Counts 4 and 5
likewise merged into the three-year firearm specification associated with Count 3.
The trial court sentenced Leegrand as follows: for Count 3, murder, life in prison
with parole eligibility after 15 years, as well as three years for the accompanying gun
specification, to be served prior and consecutive to Count 3; for Count 8, carrying a
concealed weapon, 18 months, to be served concurrently with Count 3; for Count 9,
tampering with evidence, 36 months to be served concurrently with Counts 3 and 8;
and for Count 10, having weapons while under disability, 36 months to be served
concurrently to Counts 3, 8, and 9, for an aggregate prison sentence of 18 years to
life in prison. The trial court advised Leegrand that he will be subject to five years
of mandatory postrelease control upon his release from prison and informed him of
the consequences if he were to violate its terms. The trial court also notified
Leegrand that upon his release from prison, he will be required to register his
address with the sheriff of the county in which he resides to maintain registry on the
violent offender database for ten years. Lastly, the trial court entered judgment
against Leegrand for the costs of prosecution.
The trial court then ordered Leegrand’s sentence in this case to run
consecutively to Leegrand’s sentence in a separate case for which he was currently
serving time, CR-16-608028.
It is from this judgment that Leegrand now appeals.
II. Law and Argument
A. Sufficiency of the Evidence
In his first assignment of error, Leegrand argues that his convictions
were not supported by sufficient evidence in violation of his due process rights.
Specifically, Leegrand does not argue that the state failed to present sufficient
elements of the crimes of which he was convicted. Rather, he contends that there
was insufficient evidence to connect him to Prock’s homicide. Thus, Leegrand
argues only that the state failed to present sufficient evidence of his identity in these
crimes.
Crim.R. 29(A) provides for an acquittal “if the evidence is insufficient
to sustain a conviction of such offense or offenses.” A sufficiency challenge
essentially argues that the evidence presented was inadequate to support the jury
verdict as a matter of law. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d
541 (1997). “‘The relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’” State v. Getsy, 84 Ohio
St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[A] conviction based on legally insufficient
evidence constitutes a denial of due process.” Thompkins at 386, citing Tibbs v.
Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). When reviewing a
sufficiency of the evidence claim, we review the evidence in a light most favorable to
the prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996).
Both direct and circumstantial evidence may support a conviction.
Brook Park v. Gannon, 2019-Ohio-2224, 137 N.E.3d 701, ¶ 24 (8th Dist.). As we
explained in Gannon,
“Proof of guilt may be made by circumstantial evidence, real evidence,
and direct evidence, or any combination of the three, and all three have
equal probative value.” State v. Zadar, 8th Dist. Cuyahoga No. 94698,
2011-Ohio-1060, ¶ 18, citing State v. Nicely, 39 Ohio St.3d 147, 529
N.E.2d 1236 (1988). Direct evidence exists when “a witness testifies
about a matter within the witness’s personal knowledge such that the
trier of fact is not required to draw an inference from the evidence to
the proposition that it is offered to establish.” State v. Cassano, 8th
Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. In contrast,
“circumstantial evidence requires the drawing of inferences that are
reasonably permitted by the evidence.” Id.; see also State v. Hartman,
8th Dist. Cuyahoga No. 90284, 2008-Ohio-3683, ¶ 37 (“Circumstantial
evidence is the proof of facts by direct evidence from which the trier of
fact may infer or derive by reasoning other facts in accordance with the
common experience of mankind.”).
Circumstantial evidence and direct evidence inherently possess the
same probative value. [State v.] Jenks, 61 Ohio St.3d 259, 574 N.E.2d
492 [(1991),] paragraph one of the syllabus. “Although there are
obvious differences between direct and circumstantial evidence, those
differences are irrelevant to the probative value of the evidence —
circumstantial evidence carries the same weight as direct evidence.”
Cassano at ¶ 13, citing State v. Treesh, 90 Ohio St.3d 460, 2001-Ohio-
4, 739 N.E.2d 749 (2001). “Since circumstantial evidence and direct
evidence are indistinguishable so far as the * * * fact-finding function
is concerned, all that is required of the [factfinder] is that it weigh all of
the evidence, direct and circumstantial, against the standard of proof
beyond a reasonable doubt.” Jenks at 272. “‘Circumstantial evidence is
not only sufficient, but may also be more certain, satisfying, and
persuasive than direct evidence.’” State v. Hawthorne, 8th Dist.
Cuyahoga No. 96496, 2011-Ohio-6078, ¶ 9, quoting Michalic v.
Cleveland Tankers, Inc., 364 U.S. 325, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).
Id. at ¶ 24-25.
Leegrand argues that there was insufficient evidence that he caused
Prock’s death because Givhan was the only witness to place him on the scene, and
her testimony was not credible because she was hoping that her testimony in this
case would reduce her five-year prison sentence, which she was currently serving in
Lake County for a separate offense. Under a sufficiency challenge, however, an
appellate court does not weigh the credibility of witnesses but rather considers
“whether, if believed, the evidence against the defendant would support a
conviction.” State v. Dyer, 8th Dist. Cuyahoga No. 88202, 2007-Ohio-1704, ¶ 24.
Givhan testified that on June 11, 2015, she was with friends on Bridge
Avenue where she saw Leegrand and talked to him for a few minutes. She had
known Leegrand for a few years. She testified that she saw Leegrand cross Bridge
Avenue, a car pull up at the corner of West 59th Street and Bridge Avenue, the driver
exit the car, Leegrand and the driver talk, and the driver get back into his car and
turn on West 59th Street toward Ellen Avenue. She testified that she watched
Leegrand shoot at the car once, wait about three seconds, and fire eight more shots.
She testified that she approached the vehicle after it crashed on Ellen Avenue and
noticed that the driver was dying. Witnesses who lived on Ellen Avenue and heard
the gunshots and crash stated that they saw a person with dreads walking on Ellen
Avenue. One of the Ellen Avenue residents, Carney, identified a photo of Givhan as
the person with dreads who he saw on the night of the murder. Without weighing
Givhan’s credibility, we find that her testimony was sufficient to establish beyond a
reasonable doubt that Leegrand was the one who shot at Prock’s vehicle, hit him
with a single bullet, and caused his death.
Leegrand further argues that there was no DNA to connect him to
Prock’s homicide, nobody tried to match his voice with the individual who called
Nunzio’s to order pizza delivery, and that he did not own the phone connected to
this homicide. With respect to DNA evidence, the state was not required to use it to
prove Leegrand’s identity. State v. Holloway, 2d Dist. Clark No. 2017-CA-91, 2018-
Ohio-4636, ¶ 71. Moreover, the state is not required to present direct evidence to
sustain a conviction, and circumstantial evidence “is to be accorded the same
weight” as direct evidence. State v. Lewis, 8th Dist. Cuyahoga No. 95964, 2011-
Ohio-6155, ¶ 41. FBI staff operations specialist Wilson testified that the phone
found at the scene belonged to Sepulveda, who testified that his phone had been
stolen. Operations specialist Wilson testified that on June 10 and June 11, 2015, the
phone found at the scene had called both Nunzio’s and Asia Thomas, who testified
that she and Leegrand had been talking “here and there” at that time. This evidence
was sufficient to connect Leegrand to the broken flip phone that was found on Bridge
Avenue.
Further, despite the lack of DNA evidence and voice recognition, the
state presented overwhelming evidence sufficient to establish that Leegrand is the
person who shot and killed Prock. Carney testified that after hearing gunshots on
June 11, 2015, he saw an individual with a goatee and “poofy hair” leaving the scene,
and many witnesses described Leegrand as having facial hair and a curly “fro” in
2015. In addition to Givhan’s testimony that she saw Leegrand shoot at Prock’s
vehicle, Leegrand’s girlfriend, Watson, and his friend, Kelley, both testified that
Leegrand told them that he was responsible for the death of the pizza delivery man.
In fact, Watson testified that Leegrand told her that it was a “drug deal gone bad,”
that Prock took drugs from him and drove away without paying for them, and that
he shot at Prock’s vehicle. Watson further testified that she called Leegrand’s aunt
when she was hysterical and that Watson called her from the Summit County jail
and yelled at her for doing so. Leegrand’s aunt testified that Watson called her and
that Leegrand called her from jail and confirmed that he told Watson “exactly what
was said.”
The state also presented sufficient evidence connecting Leegrand to
the Hi-Point gun that was found in an oven in an Akron townhome that Leegrand
had visited with his friend, Rio. The state established that the spent shell casings
found on Bridge Avenue were fired from the Hi-Point gun. Watson identified the
Hi-Point gun as the gun that Leegrand had when he visited her on her mother porch
to tell her about the “drug deal gone bad.” Givhan also testified that the gun that
Leegrand used to shoot at Prock’s vehicle was “like a Hi-Point” gun.
After review, we find that the state presented overwhelming direct
and circumstantial evidence that if believed, was sufficient to establish beyond a
reasonable doubt that Leegrand was the person who shot and killed Prock. We
therefore overrule Leegrand’s first assignment of error.
B. Manifest Weight of the Evidence
In his second assignment of error, Leegrand argues that his
convictions were against the manifest weight of the evidence.
A challenge to the manifest weight of the evidence tests whether the
prosecution has met its burden of persuasion. Thompkins, 78 Ohio St.3d at 388,
678 N.E.2d 541. “When considering an appellant’s claim that a conviction is against
the manifest weight of the evidence, the court of appeals sits as a ‘thirteenth juror’
and may disagree with the factfinder’s resolution of conflicting testimony.” Tibbs,
457 U.S. at 42, 102 S.Ct. 2211, 72 L.E.2d 652. On review of a manifest-weight
challenge, the appellate court is tasked with reviewing all of the evidence in the
record and in resolving the conflicts therein, determining whether the trier of fact
“clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.” State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The discretionary power to grant
a new trial should be exercised only in the exceptional case in which the evidence
weighs heavily against the conviction.” Id.Leegrand essentially raises the same questions about his identity in
this assignment of error as he did with respect to sufficiency of the evidence.
Leegrand argues that all of his convictions were against the manifest weight of the
evidence because Givhan’s testimony was unreliable, no DNA evidence connected
Leegrand to Prock’s homicide, and Hearst testified that Leegrand had a broken leg
and foot in June 2015 and was at her home every night by midnight during that time.
We disagree that Leegrand’s convictions were against the weight of the evidence.
Although Givhan was motivated to testify for her personal benefit to
decrease her prison sentence, the jury did not clearly lose its way in choosing to
believe her testimony. Carney testified that somebody with dreads was on the
homicide scene on June 11, 2015, and Givhan identified a photo of herself with
dreads from 2015. Isner likewise testified that Carney and an African-American
female stopped at Prock’s vehicle. Other than whether Givhan spoke to the 911
operator, Givhan’s testimony is consistent with Carney’s. She and Carney both
testified that she approached Prock’s car, that Carney called 911, and that Givhan
left the scene in her red vehicle before police arrived.
Further, we do not find that a lack of DNA or direct physical evidence
renders Leegrand’s convictions against the manifest weight of the evidence. Indeed,
as we set forth in the previous assignment of error, the state presented
overwhelming evidence of Leegrand’s guilt.
As to Leegrand’s argument that Hearst testified that he had injured
his leg and foot and was at her home every night in June 2015, every other witness
who saw him testified that Leegrand was not in a boot or on crutches in June 2015.
Moreover, Hearst’s testimony regarding Leegrand’s supposed injuries was vague
and incomplete. She could not remember exactly when in June 2015 he broke his
leg and foot, and she admitted that she did not know if he broke them before June
10 or 11, 2015. She could not even recall which hospital he visited.
After review, we cannot say that this is the exceptional case where the
jury clearly “lost its way,” and we find that Leegrand’s convictions were not against
the manifest weight of the evidence. Accordingly, we overrule Leegrand’s second
assignment of error.
C. Confrontation Clause
In his third assignment of error, Leegrand argues that “[t]he trial
court erred in the admission of hearsay evidence and testimonial statements, in
violation of [his] right to confront his accusers[.]” Leegrand contends that Ford’s
testimony that she called Leegrand’s mother and told her that “her son killed the
pizza man” was a testimonial, hearsay statement because it repeated what Watson
told her, which violated Confrontation Clause of the Sixth Amendment to the United
States Constitution and Section 10, Article I of the Ohio Constitution.
We review alleged violations of the Confrontation Clause de novo.
State v. Smith, 162 Ohio App.3d 208, 2005-Ohio-3579, 832 N.E.2d 1286, ¶ 8 (8th
Dist.).
The Sixth Amendment’s Confrontation Clause provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted with
the witnesses against him[.]” The United States Supreme Court has interpreted this
to mean that the admission of an out-of-court statement of a witness who does not
appear at trial is prohibited by the Confrontation Clause if the statement is
testimonial, unless the witness is unavailable and the defendant had a prior
opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. 36,
53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Watson, the original declarant, testified at trial and was subject to
cross-examination. Because Leegrand was able to, and in fact did, cross-examine
Watson, his confrontation rights were not violated. See Cleveland v. Amoroso, 8th
Dist. Cuyahoga No. 100983, 2015-Ohio-95, ¶ 38.
Moreover, the trial court gave a curative instruction for the jury to
disregard Ford’s statement that she told Leegrand’s mother that he “killed the pizza
man.” Leegrand contends that the instruction was insufficient because the jury still
heard the statement, and he should have been entitled to a mistrial and have his
convictions overturned. The decision whether to grant a mistrial rests within the
sound discretion of the trial court and will not be disturbed absent an abuse of
discretion. State v. Treesh, 90 Ohio St.3d 460, 480, 2001-Ohio-4, 739 N.E.2d 749;
Crim.R. 33. “A mistrial should not be ordered in a criminal case merely because
some error or irregularity has intervened[.]” State v. Reynolds, 49 Ohio App.3d 27,
33, 550 N.E.2d 490 (2d Dist.1988). The granting of a mistrial is necessary only when
a fair trial is no longer possible. State v. Franklin, 62 Ohio St.3d 118, 127, 580
N.E.2d 1 (1991). We find that the trial court did not abuse its discretion in denying
Leegrand’s motion for a mistrial. After the trial court instructed the jury to disregard
Ford’s statement that she heard from Watson that Leegrand “killed the pizza man,”
Watson herself took the stand, testified to her conversation with Ford, and was
cross-examined by Leegrand. We therefore overrule Leegrand’s third assignment of
error.
D. Consecutive Sentences
In his fourth assignment of error, Leegrand argues that the trial court
erred in imposing consecutive sentences by failing to make the required findings
under R.C. 2929.14 and HB 86 and by failing to journalize its findings in its
sentencing entry.
For felony sentences, an “appellate court’s standard for review is not
whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). Instead,
R.C. 2953.08(G)(2) provides that appellate courts “may increase, reduce, or
otherwise modify a sentence * * * or may vacate the sentence and remand the matter
to the sentencing court for resentencing” if the reviewing court “clearly and
convincingly” finds that (a) “the record does not support the sentencing court’s
findings under [R.C. 2929.14(C)(4)],” or that (b) “the sentence is otherwise contrary
to law.”
As the Ohio Supreme Court has explained, when reviewing
consecutive sentences, “R.C. 2953.08(G)(2)(a) directs the appellate court ‘to review
the record, including the findings underlying the sentence’ and to modify or vacate
the sentence ‘if it clearly and convincingly finds * * * [t]hat the record does not
support the sentencing court’s findings under’ ” R.C. 2929.14(C)(4); State v.
Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 28, quoting R.C.
2953.08(G)(2)(a).
A defendant can challenge consecutive sentences on appeal in two
ways. First, the defendant can argue that consecutive sentences are contrary to law
because the court failed to make the necessary findings required by R.C.
2929.14(C)(4). See R.C. 2953.08(G)(2)(b); State v. Nia, 2014-Ohio-2527, 15 N.E.3d
892, ¶ 16 (8th Dist.). Second, the defendant can argue that the record does not
support the court’s findings made pursuant to R.C. 2929.14(C)(4). See R.C.
2953.08(G)(2)(a); Nia at ¶ 16. Leegrand raises the first argument on appeal.
“In Ohio, sentences are presumed to run concurrent to one another
unless the trial court makes the required findings under R.C. 2929.14(C)(4).” State
v. Gohagan, 8th Dist. Cuyahoga No. 107948, 2019-Ohio-4070, ¶ 28. Trial courts
must therefore engage in the three-tier analysis of R.C. 2929.14(C)(4) before
imposing consecutive sentences. Id. First, the trial court must find that
“consecutive service is necessary to protect the public from future crime or to punish
the offender.” Second, the trial court must find that “consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public.” Id. Third, the trial court must find that at least one of
the following applies:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
Id.The failure to make the above findings renders the imposition of
consecutive sentences contrary to law. Gohagan at ¶ 29. R.C. 2929.14(C)(4) directs
that for each step of this analysis, the trial court must “find” the relevant sentencing
factors before imposing consecutive sentences. R.C. 2929.14(C)(4). Trial courts,
however, do not need to recite the statutory language word for word. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 29. “[A]s long as the reviewing
court can discern that the trial court engaged in the correct analysis and can
determine that the record contains evidence to support the findings, consecutive
sentences should be upheld.” Id. A trial court “has no obligation to state reasons to
support its findings,” but the necessary findings “must be found in the record and []
incorporated into the sentencing entry.” Id. at ¶ 37.
Here, the trial court ordered that the sentence in this case is to run
consecutively to Leegrand’s sentence in a separate case, CR-16-608028, for which
Leegrand was already serving prison time. The trial court made the following
findings at Leegrand’s sentencing hearing:
I find that the consecutive term is necessary to protect the public from
future crime and to punish the defendant. The consecutive sentences
are not disproportionate to the seriousness of the defendant’s conduct
and to the danger the defendant poses to the public, and the
defendant’s history of criminal conduct demonstrates that the
consecutive sentences are necessary to protect the public from future
crime by the defendant.
Accordingly, the trial court made the requisite R.C. 2929.14(C)(4) findings.
Moreover, the record clearly and convincingly supports the trial
court’s findings. The trial testimony shows the seriousness of Leegrand’s conduct.
His presentence investigation report shows that he has an extensive criminal
history. As a juvenile, Leegrand was convicted, in five separate cases, of crimes
including assault, robbery, misuse of credit cards, and felonious assault. As an adult,
Leegrand was convicted, in six different cases, of crimes including theft, assault,
aggravated assault (a fourth-degree felony), receiving stolen property (a fifth-degree
felony), and felonious assault (a first-degree felony). The presentence investigation
report shows that in July 2016, Leegrand was convicted and sentenced to three years
in prison for robbery with a firearm specification, abduction (a third-degree felony),
and having weapons while under disability (a third-degree felony). The report
identifies Leegrand’s recidivism risk level as “high.”
We agree with Leegrand, however, that the trial court failed to include
its consecutive-sentence findings in the sentencing entry as required by Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 37. Such an error is a clerical
mistake that the trial court may correct through a nunc pro tunc entry “to reflect
what actually occurred in open court.” Id. at ¶ 30.
We therefore sustain Leegrand’s fourth assignment of error in part
and overrule it in part.
E. Improper Sentence
In his fifth and final assignment of error, Leegrand argues that “[t]he
trial court erred by ordering Appellant to serve an improper sentence” because the
trial court sentenced him to “life in prison with the possibility of parole in 15 years”
rather than “an indefinite term of fifteen years to life” as required by R.C. 2929.02
as the penalty for murder. We agree.
Pursuant to R.C. 2929.02(B)(1), a person convicted of murder in
violation of R.C. 2903.02 “shall be imprisoned for an indefinite term of fifteen years
to life.” As the Ohio Supreme Court explained in State v. Fischer, 128 Ohio St.3d
92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 22,
Judges have no inherent power to create sentences. Griffin & Katz,
Ohio Felony Sentencing Law (2008) 4, Section 1:3, fn. 1. See also
Woods v. Telb, 89 Ohio St.3d [504] at 507-509, 2000-Ohio-171, 733
N.E.2d 1103 [2000] (describing the legislative intent behind a new,
comprehensive sentencing structure, including postrelease control).
Rather, judges are duty-bound to apply sentencing laws as they are
written. See State v. Thomas (1996), 111 Ohio App.3d 510, 512, 676
N.E.2d 903. “[T]he only sentence which a trial court may impose is that
provided for by statute. A court has no power to substitute a different
sentence for that provided for by statute or one that is either greater or
lesser than that provided for by law.” Colegrove [v. Burns], 175 Ohio
St. [437,] 438, 25 O.O.2d 447, 195 N.E.2d 811 [1964].
When a trial court acting with subject-matter and personal
jurisdiction imposes a sentence contrary to law, the sentence is voidable and may be
challenged on direct appeal. State v. Harper, Slip Opinion No. 2020-Ohio-2913,
¶ 4, 42.
In State v. Kemp, 8th Dist. Cuyahoga No. 97913, 2013-Ohio-167, this
court held that Kemp’s sentence for murder of “life in prison with eligibility of parole
after 15 years” was contrary to law because R.C. 2929.02(B)(1) required that Kemp
be imprisoned “for an indefinite term of fifteen years to life.” Similarly, in State v.
Duncan, 2d Dist. Clark No. 2016-CA-77, 2017-Ohio-8103, the Second District held
that Duncan’s murder sentence of “life with the possibility of parole after fifteen (15)
years plus a one (1) year firearm specification to be served consecutive” was contrary
to R.C. 2929.02(B)(1)’s language of “indefinite term of fifteen years to life.”
In State v. Smith, 2019-Ohio-155, 131 N.E.3d 321, ¶ 24 (8th Dist.), this
court faced the reverse situation: Smith was convicted of aggravated murder but
was sentenced to “20 years to life” instead of R.C. 2929.03(A)’s language of “life
imprisonment with parole eligibility after serving twenty years of imprisonment.”
Id. at ¶ 3, 16. This court vacated Smith’s sentence and remanded for resentencing,
explaining,
the trial courts in Kemp and Duncan erred by imposing a sentence on
a murder conviction that more closely resembled the type of sentence
that is appropriate for an aggravated murder conviction under R.C.
2929.03(A), i.e., a prison term of life with parole eligibility after a
certain period of time. See R.C. 2929.03(A)(1)(b)-(d). * * * [T]he
decisions demonstrate the legislatively constructed differences
between the sentence permitted for aggravated murder and the
sentence permitted for murder.
Id. at ¶ 24; see also State v. Dowdy, 8th Dist. Cuyahoga No. 107844, 2019-Ohio-
3570, ¶ 8 (relying on Smith to vacate Dowdy’s sentence as void).4
4 The state appealed our order, and the Ohio Supreme Court accepted the
discretionary appeal. State v. Dowdy, 1/21/2020 Case Announcements, 2020-Ohio-122,
137 N.E.3d 1200. Oral argument has not yet been scheduled.
Here, the trial court stated at the sentencing hearing that for Count 3,
murder, it was imposing a sentence of “life in prison with possibility of parole in 15
years.” The trial court then sentenced Leegrand to three years for the gun
specification and ordered that it be served prior to and consecutive to Count 3. The
sentencing journal entry states that Leegrand’s murder sentence is “3 years on
firearm spec to run prior to and consecutive to Count 3 life in prison with eligibility
of parole after 15 years.” This is contrary to the “indefinite term of fifteen years to
life” language of R.C. 2929.02(B)(1).
The state argues that Leegrand’s sentence should be upheld because
there is no practical effect between the difference in language. This court rejected
such an argument in Smith, finding “the legislature’s construction of the R.C.
2929.03(A) and 2929.02(B), and its decision to use different statutory language in
each sentencing statute, was intentional. One expressly sets forth parole eligibility
by statute, the other does not.” Id. at ¶ 25; see also State v. Reed, 8th Dist. Cuyahoga
No. 108498, 2019-Ohio-4471, ¶ 37, 38 (relying on Smith to reject the state’s
argument that “20 years to life” had the same practical effect as “life imprisonment
with parole eligibility after serving twenty years of imprisonment.”).5 We are
obligated to follow our precedent in both Reed and Smith and reject the state’s
argument here that Leegrand’s sentence should be upheld because it has the same
practical effect as the statutory language of R.C. 2929.02.
5 The state appealed our decision in Reed, and the Ohio Supreme Court has
accepted the discretionary appeal. State v. Reed, 1/21/2020 Case Announcements, 2020-
Ohio-122, 137 N.E.3d 1214. Oral argument has not yet been scheduled.
Accordingly, we sustain Leegrand’s final assignment of error.
Judgment affirmed in part, reversed in part, and remanded.
Specifically, Leegrand’s convictions are affirmed, but his sentence for murder is
vacated and remanded. Upon remand, the trial court is to (1) hold a resentencing
hearing at which Leegrand is to be sentenced for Count 3, murder, in accordance
with the statutory language set forth in R.C. 2929.02; and (2) correct the portion of
its sentencing entry via nunc pro tunc to include the findings required by
R.C. 2929.14(C)(4) when ordering Leegrand’s sentence in this case to run
consecutively to his sentence in CR-16-608028.
It is ordered that appellant and appellee share 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. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court to hold a resentencing hearing and issue a nunc pro tunc entry.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR