Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-09-520345-B
VACATED IN PART AND REMANDED IN PART
Michael C. O'Malley, Cuyahoga County Prosecutor, and
Katherine Mullin, Assistant Prosecuting Attorney, for
Stanton, Cuyahoga County Public Defender, and John T. Martin,
Assistant Public Defender, for appellant
JOURNAL ENTRY AND OPINION
A. GALLAGHER, JUDGE
1} Defendant-appellant Shaun Dowdy appeals after his
"Motion to Correct Void Sentence" was granted in
part and denied in part. We vacate his aggravated murder
sentence and remand the case to the trial court for
resentencing on that count.
2} In 2013, Dowdy pleaded guilty to one count of
aggravated murder with a three-year firearm specification and
one count of kidnapping. The trial court sentenced Dowdy to
"20 years to life" for aggravated murder, three
years for the firearm specification and ten years for
kidnapping. The court ordered Dowdy to serve these sentences
consecutively for a total sentence of "33 years to
life" in prison.
On appeal, Dowdy challenges his sentence in two assignments
(1) The sentence imposed on Count Nine [aggravated murder]
is void ab initio and the trial court erred when it refused
to sentence on Count Nine de novo.
(2) The sentence imposed on Count One [kidnapping] is void
ab initio and the trial court erred when it refused to
sentence on Count One de novo.
4} In his first assignment of error, Dowdy argues
that his aggravated murder sentence is void because it was
not authorized by statute.
5} During the pendency of this appeal, a panel of
this court decided State v. Smith, 8th Dist.
Cuyahoga No. 106893, 2019-Ohio-155, appeal not
accepted, 155 Ohio St.3d 1438, 2019-Ohio-1536, 121
N.E.3d 409. Smith is indistinguishable, controlling
and dispositive of this issue.
6} In Smith, the defendant pleaded guilty
to aggravated murder and the trial court sentenced him to a
term of "20 years to life in prison." Id.
at ¶ 3. At the time the defendant was sentenced, in
relevant part, R.C. 2929.03(A) provided that aggravated
murder was punishable by a sentence of "'life
imprisonment with parole eligibility after serving twenty
years of imprisonment."' Id. at ¶ 16,
quoting R.C. 2929.03(A). The panel rejected the state's
argument that although the two sentences were worded
differently that they had the same "practical
effect." Id. at ¶ 18. Instead, and by
reference to the different language used in the murder and
aggravated murder statutes, the panel stated "[o]ne
expressly sets forth parole eligibility by statute, the other
does not." Id. at ¶ 25, citing State
v. Duncan, 2d Dist. Clark No. 2016-CA-77,
2017-Ohio-8103, ¶ 14. On that basis, the panel concluded