[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-
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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.
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      {¶ 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.
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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.
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      {¶ 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.
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     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
