The Akron Legal News

Man who murdered two during convenience store robbery loses appeal

ANNIE YAMSON
Special to the Legal News
Published: May 14, 2014

In the 8th District Court of Appeals, a three-judge appellate panel recently affirmed the judgment of the Cuyahoga County Court of Common Pleas, which denied a defendant’s motion to vacate judgment from his 2006 convictions for aggravated murder with mass murder specifications, felony murder and escape detection specifications.

The defendant, Wayne Ervin, appealed pro se and argued that the trial court committed prejudicial error when it convicted him “without formal accusation for acquirement of jurisdiction over subject matter.”

He also claimed that he was denied effective assistance of counsel but the appellate panel ruled that claim was barred by res judicata.

According to case summary, Ervin’s convictions stemmed from the double homicide of Arman Lovett and Jeff Burton and the attempted homicide of Carolyn Pitts on March 18, 2004.

The incident occurred at a combination deli and convenience store in Cleveland.

Lovett was the store’s owner, Pitts was his live-in girlfriend and Burton was an employee and boarder. All three were on the premises on the day of the homicides.

The court’s summary states that five males were involved, including Ervin, Dwight “Fats” Whatley, Tywon Dubois, Dedrick Divens and Daniel Grant.

Pitts testified at trial that she was working the deli counter when Grant came in and ordered a sandwich.

She recognized Grant as someone she had seen with a local drug dealer.

While Pitts was preparing the sandwich, Grant left the store and returned with Whatley, who Pitts recognized because she had purchased drugs from him in the past. Ervin, Dubois and Divens entered behind the two other men.

Pitts told the trial court that she continued to make Grant’s sandwich until she heard one of the men yell, “Everybody put your hands up.”

When she looked up, she saw that Ervin, Dubois and Divens had donned ski masks and that all five men were holding guns. Whatley carried a shotgun.

The men gathered Pitts, Lovett and Burton and bound their hands and feet with duct tape.

A coat was placed over Pitts’ head so she could not see what was happening but she stated that she heard the men running and one of them asking Lovett for the keys and the combination to the safe.

Pitts stated that she begged for Lovett’s life and told the men that he did not have much money but “Whatley replied without emotion that he had to kill her because she recognized him.”

All three victims were eventually moved to the basement and forced to lay on the floor while the assailants discussed “what they were going to do with them.”

One of the men responded “let’s just do them,” and, from under the coat that was on her head, Pitts saw one of the masked men use a steak knife to cut Burton’s throat. When that did not kill him, he was shot in the head.

Lovett was also killed with one shot to the head.

Though she was also shot, Pitts survived and she waited until she heard the men leave to call the police.

Upon their arrival, she told officers that one of the men involved was “Fats” but that she did not know his real name.

Police followed fresh tracks that had been left in the snow and arrived in the backyard of a residence where they found five weapons hidden underneath a van, including a shotgun.

Two of the recovered handguns were later proven to have fired the fatal shots into Lovett and Burton.

At trial, Joanna Workman, who lived in the residence outside of which the weapons were found, testified that she admitted Grant and Dubois into her home on the night of the murders.

A short time after they arrived, she stated that she heard gunshots and then Whatley and Ervin arrived at her house.

A friend of Ervin’s, Tyshaun Hampton, testified that she picked Ervin and his friends up that evening and gave them a ride. She watched as the men divided money they obtained from breaking into a metal box that they carried with them and then drove them to another location where they burned their clothes.

Dubois pleaded guilty to the charges and cooperated fully in the prosecution of his codefendants.

Following guilty verdicts from the jury, the trial court sentenced Ervin on the aggravated murder counts to two terms of life imprisonment without the possibility of parole, to be served consecutively.

Additionally, Ervin was ordered to serve 70 years in prison for attempted aggravated murder, aggravated burglary, aggravated robbery and kidnapping.

In the unlikely event of his release from prison, the court informed Ervin he would be subject to a five-year term of postrelease control.

Ervin’s conviction and sentence were affirmed when the 8th District overruled his direct appeal in 2007.

All of his subsequent motions have been denied including motions to vacate judgment and to correct illegal sentencing.

In his most recent motion to vacate judgment and subsequent appeal, Ervin argued that the trial court lacked subject matter jurisdiction when it convicted him without a formal complaint. The appellate panel disagreed.

“Minor criminal prosecutions may be initiated by complaint as provided in Crim.R. 3,” wrote Judge Patricia Ann Blackmon for the court of appeals. “Felonies, such as aggravated murder, may only be initiated by indictment of the grand jury.”

The appellate panel held that an criminal prosecution may be initiated by complaint or by indictment.

In Ervin’s case, a 17-count indictment informed him of the charges filed against him and of the essential elements of his crimes.

“Where, as here, the indictment adequately provides the defendant with notice of the charges against him, the trial court possesses and properly exercises subject matter jurisdiction,” wrote Judge Blackmon.

The appellate panel proceeded to address Ervin’s claim that the clerk of court failed to properly time stamp the judgment entry denying his motion to vacate, however, it found little merit to this remaining argument.

The judgment of the Cuyahoga County court was ultimately affirmed with Presiding Judge Larry Jones and Judge Kenneth Rocco concurring.

The case is cited State v. Ervin, 2014-Ohio-1631.

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