[Cite as State v. Chapman, 2011-Ohio-4642.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96580
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LITRELL CHAPMAN
DEFENDANT-APPELLANT
JUDGMENT:
DISMISSED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-345622
BEFORE: Rocco, J., Stewart, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: September 15, 2011
-i-
2
FOR APPELLANT
Litrell Chapman, pro se
Inmate No. 334-875
Trumbull Correctional Institution
P.O. Box 901
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Diane Smilanick
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, J.:
{¶ 1} Defendant-appellant Litrell Chapman appeals from the trial
court’s denial of his “notice for [an] order on newly-discovered evidence.”
{¶ 2} Chapman presents one assignment of error, claiming that the
trial court abused its discretion. Since the trial court’s order is not one from
which an appeal lies, this case is dismissed.
{¶ 3} This court first reviewed Chapman’s case in State v. Chapman
(July 13, 1998), Cuyahoga App. No. 73292 (“Chapman I”), setting forth the
facts surrounding his convictions as follows:
3
{¶ 4} “The events here began when Litrell Chapman, Alonzo Quinnie,
and Willis McNeal twice attempted to steal money during the early morning
hours of May 30, 1996. In connection with the first attempt, Chapman
borrowed a Smith & Wesson .38 caliber snub-nosed revolver from Michael
Lauderdale, which belonged to Clinton Robinson, and he, Quinnie, and
McNeal stole a safe from Chapman’s cousin. After meeting Robinson,
Timothy Larkin, and Aisha Sparks at the home of Chapman’s father,
Chapman broke into the safe but found only pennies and some marijuana
seeds; as a result of this failed attempt to obtain cash, Chapman suggested
that he, Quinnie, and McNeal rob David White. At this point, Chapman
then gave McNeal a sawed-off shotgun, and the three men drove to White’s
apartment where, after unscrewing the bulb in a light fixture above the front
door, they kicked open the apartment and kitchen doors, and, as White
confronted Chapman in the kitchen, Chapman shot him in the upper left part
of his chest near his heart at close range. Following a quick, but
unsuccessful, search of the apartment for ‘big money,’ Chapman ran to his car
and drove to his father’s house, where he met Aisha Sparks and allegedly
went to sleep for the night. McNeal and Quinnie then ran from White’s
apartment to McNeal’s car and drove away.
4
{¶ 5} “White’s girlfriend, Loretta Taylor, who had been hiding in the
bedroom closet during the robbery, telephoned police and, upon their
investigation, she identified someone other than Chapman as the man who
searched her bedroom. The following week, Chapman attended White’s
funeral and bragged to Timothy Larkin about having committed his first
murder; he also asked Aisha Sparks to provide him with an alibi. Cleveland
police detectives, who continued this investigation, eventually arrested
Chapman in November, 1996, based in part on information provided to them
by Clinton Robinson and Timothy Larkin; the grand jury subsequently
indicted Chapman for aggravated murder, aggravated burglary, and
aggravated robbery. The court conducted a jury trial which resulted in
guilty verdicts against Chapman on all three counts.”
{¶ 6} After this court reviewed Chapman’s seven assignments of error,
although his convictions were affirmed, this court determined he was entitled
to be resentenced; therefore, Chapman’s case was remanded for that purpose.
The trial court complied with the directive on July 29, 1998. Subsequently,
the Ohio Supreme Court denied Chapman’s motion to file a delayed appeal
from this court’s decision in Chapman I.1
1State v. Chapman (1999), 87 Ohio St.3d 1419, 717 N.E.2d 1106.
5
{¶ 7} On January 30, 2001 Chapman filed his first Crim.R. 33 motion
for a new trial. Since the rule required new trial motions to be filed within
one hundred twenty days “after the verdict is rendered,” Chapman explained
that his application was untimely because he neither knew how to file his
motion in a timely manner, nor had his trial transcripts within that time
frame.2 Chapman presented nine “errors of law” that he claimed entitled
him to a new trial. In his seventh, he asserted that one of the state’s
witnesses had been “coerced” to testify. On February 5, 2001, the trial court
denied his motion.3
{¶ 8} Chapman sought to appeal from the trial court’s decision.
However, his appeal was dismissed as untimely filed. State v. Chapman,
Cuyahoga App. No. 79812, 2002-Ohio-1081 (“Chapman II”). Once again, the
Ohio Supreme Court declined to accept his request to file a delayed appeal
from this court’s decision.4
{¶ 9} In the meantime, on May 7, 2001 Chapman filed a motion for
postconviction relief. He argued that he was entitled to relief because he had
2Chapman alleged he received the transcripts on January 22, 1998, but failed
to explain the reason it took him another three years to file his motion.
3On March 8, 2001, after the state filed a brief in opposition to Chapman’s
first motion, the trial court issued a second journal entry that denied Chapman’s
motion.
6
discovered by speaking with a co-defendant that two of the state’s witnesses,
viz., Timothy Larkin and Clinton Robinson, had offered “perjured” testimony
at Chapman’s trial.
{¶ 10} The state requested the trial court to dismiss Chapman’s petition,
pointing out that the petition was untimely. On May 18, 2001, the trial court
issued an order that “overruled” Chapman’s petition. 5 Chapman did not
appeal the trial court’s order.
{¶ 11} On December 8, 2006, Chapman filed a “request for leave to file
[a] delayed motion for a new trial.” Chapman claimed in his attached
affidavit that both of his co-defendants provided false testimony at his trial.
Chapman attached several other documents, including affidavits of his
co-defendant McNeal and a friend, Ralph Tidmore; in his affidavit, McNeal
claimed he had been “coerce[d]” into making untrue statements, and Tidmore
asserted Chapman’s other co-defendant told him “they lied on Trell.”
{¶ 12} The state filed a brief in opposition to Chapman’s request. On
January 16, 2007, the trial court issued an order denying Chapman’s request
4State v. Chapman, 96 Ohio St.3d 1487, 2002-Ohio-4478, 774 N.E.2d 762.
5The record reflects the state re-filed its request on June 14, 2001, and the
trial court “granted” the state’s request on June 22, 2001.
7
for leave to file a delayed new trial motion. 6 This court subsequently
dismissed pursuant to R.C. 2505.02 Chapman’s attempt to appeal from the
trial court’s order.7
{¶ 13} Although Chapman applied in June 2007 to the trial court for a
“final order,” the trial court denied his request. Chapman attempted to
appeal that decision, but his appeal was dismissed; 8 the supreme court
eventually declined jurisdiction to consider that case.
{¶ 14} On February 11, 2011, Chapman filed a “notice for [an] order on
newly discovered evidence” pursuant to “the operation of Criminal Rule 33.”
In his supporting brief, Chapman requested the court to “preserve the newly
discovered evidence for [the] filing of a proper motion for leave to order a new
trial * * * .” Chapman also sought a hearing on this matter. Chapman
attached, in pertinent part, a copy of an undated affidavit from McNeal; once
again, McNeal claimed he lied at Chapman’s trial.
{¶ 15} On February 24, 2011, the trial court issued a judgment entry
that denied Chapman’s “notice,” mistakenly referring to Chapman’s pleading
6The record reflects the trial court re-issued the order on January 23, 2007.
7App. No. 89416.
8App. No. 90239.
8
as a “motion for a new trial.” Chapman filed the instant appeal from that
order.
{¶ 16} Chapman sets forth a single assignment of error, asserting that
the trial court abused its discretion, but this court cannot address his
argument, because it lacks jurisdiction to do so.
{¶ 17} Article IV, Section 3(B)(2) of the Ohio Constitution limits
appellate court jurisdiction to the review of final judgments. For a judgment
to be final and appealable it must satisfy R.C. 2505.02 and, if applicable,
Civ.R. 54(B). Hitchings v. Weese, 77 Ohio St.3d 390, 1997-Ohio-290, 674
N.E.2d 688. This court, therefore, must dismiss an appeal that is not taken
from a final appealable order.
{¶ 18} R.C. 2505.02 provides in pertinent part as follows:
{¶ 19} “(A) As used in this section:
{¶ 20} “(1) ‘Substantial right’ means a right that the United States
Constitution, the Ohio Constitution, a statute, the common law, or a rule of
procedure entitles a person to enforce or protect.
{¶ 21} “(2) ‘Special proceeding’ means an action or proceeding that is
specially created by statute and that prior to 1853 was denoted as an action
at law or a suit in equity.
9
{¶ 22} “(3) ‘Provisional remedy’ means a proceeding ancillary to an
action, including, but not limited to, a proceeding for a preliminary
injunction, attachment, discovery of privileged matter, [or] suppression of
evidence, * * *.
{¶ 23} “(B) An order is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial, when it is one of the following:
{¶ 24} “(1) An order that affects a substantial right in an action that in
effect determines the action and prevents a judgment;
{¶ 25} “(2) An order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment;
{¶ 26} “(3) An order that vacates or sets aside a judgment or grants a
new trial;
{¶ 27} “(4) An order that grants or denies a provisional remedy and to
which both of the following apply:
{¶ 28} “(a) The order in effect determines the action with respect to the
provisional remedy and prevents a judgment in the action in favor of the
appealing party with respect to the provisional remedy.
{¶ 29} “(b) The appealing party would not be afforded a meaningful or
effective remedy by an appeal following final judgment as to all proceedings,
issues, claims, and parties in the action.* * * ”
10
{¶ 30} The trial court’s denial of Chapman’s “notice for an order on
newly discovered evidence” meets none of the foregoing definitions of a “final
order.” Cf., State v. Gray, Cuyahoga App. No. 92646, 2010-Ohio-11; State v.
Moore, Allen App. No. 1-08-27, 2008-Ohio-6751. To the extent Chapman had
a “substantial right” to the preservation of evidence, in California v.
Trombetta (1984), 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413, the United
States Supreme Court held that, whatever duty the United States
Constitution imposes on the states to preserve evidence, the duty is limited.9
Obviously, the evidence must be in the state’s possession. See, e.g., State v.
Moore (Oct. 27, 1986), Butler App. No. CA 85-04-035. In this case, Chapman
did not make clear what evidence he sought to be preserved. The evidence
Chapman indicated, however, to the extent he did, either was in his
possession or is a matter of public record.
{¶ 31} Since the trial court’s order was not a final appealable order, this
case is dismissed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
9The evidence itself must meet a standard of “constitutional materiality,” i.e.,
it must possess an apparent exculpatory value, and be of such a nature that the
defendant would be unable to obtain comparable evidence by other reasonably
available means.
11
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
___________________________________
KENNETH A. ROCCO, JUDGE
MELODY J. STEWART, P.J., and
JAMES J. SWEENEY, J., CONCUR