[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. 
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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. 
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