[Cite as State v. Chapman,

.]

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,

, * 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,

(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,

,

(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.

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,

, ¶ 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,

; 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,

(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