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State v. Dowdy

Court of Appeals of Ohio, Eighth District, Cuyahoga

September 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
SHAUN E. DOWDY, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-09-520345-B

         JUDGMENT: VACATED IN PART AND REMANDED IN PART

          Michael C. O'Malley, Cuyahoga County Prosecutor, and Katherine Mullin, Assistant Prosecuting Attorney, for appellee.

          Mark A Stanton, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant

          JOURNAL ENTRY AND OPINION

          EILEEN 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.

         {¶3} On appeal, Dowdy challenges his sentence in two assignments of error:

(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.

         Aggravated Murder

         {¶ 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, ΒΆ 14. On that basis, the panel concluded ...


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