State v. Leegrand

2020 Ohio 3179

• Court: Ohio Court of Appeals
• Decided: June 4, 2020
• Docket: 108626
• Status: Published

Opinion

[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