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State v. Kemp

Court of Appeals of Ohio, Seventh District, Mahoning

December 5, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
THOMAS A. KEMP, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 88 CR 634.

          Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, for Plaintiff-Appellee

          Thomas A. Kemp, Pro se, #209-194, Grafton Correctional Institution.

          BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.

          OPINION AND JUDGMENT ENTRY

          WAITE, P.J.

         {¶1} Appellant Thomas A. Kemp appeals a March 22, 2019 Mahoning County Court of Common Pleas judgment entry denying his "Motion to Correct a Facially Illegal Sentence." Appellant argues that his four sentencing entries issued by the trial court in 1989 violate the "one judgment entry rule" announced in State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330, 893 N.E.2d 163. Appellant also claims that the court's imposition of a concurrent firearm specification sentence is contrary to law because those offenses merged for sentencing purposes. Appellant also generally contests the court's underlying decision regarding sentencing. For the reasons provided, Appellant's arguments have merit in part. Accordingly, the matter is remanded to the trial court for purposes of issuing corrected sentencing entries that specify the fact of conviction. Further, Appellant's sentencing entry is to be amended to clearly reflect that he is serving a single three-year sentence on the merged firearm specifications. The remaining aspects of the trial court judgment are affirmed.

         Factual and Procedural History

         {¶2} On January 17, 1989, Appellant was indicted on: one count of aggravated murder, an unclassified felony in violation of R.C. 2903.01(A) with an attendant death penalty specification; one count of aggravated murder, an unclassified felony in violation of R.C 2903.01(B) with an attendant death penalty specification; two counts of kidnapping, felonies of the first degree in violation of R.C. 2903.11(B)(2), each with an attendant firearm specification; two counts of felonious assault, felonies of the second degree in violation of R.C. 2903.11(A)(2), each with an attendant firearm specification.

         {¶3} On February 27, 1989, Appellant pleaded no contest to all charges, however, the death specifications were dismissed. On February 28, 1989, the trial court imposed the following sentence: incarceration of twenty years to life on each aggravated murder count, ten to twenty-five years on each count of kidnapping, and eight to fifteen years on each count of felonious assault. Additionally, the trial court merged the firearm specifications for sentencing purposes and imposed a three-year sentence. All sentences were ordered to run concurrently. We affirmed Appellant's convictions and sentence in State v. Kemp, 7th Dist. Mahoning No. 89 C.A. 43, 1990 WL 12130 (Feb. 13, 1990).

         {¶4} On April 25, 1996, the trial court vacated Appellant's sentence for his R.C. 2903.01(B) aggravated murder conviction. It is unclear whether this action was undertaken sua sponte or whether Appellant had filed a motion. Appellant then filed a postconviction petition alleging that his trial counsel's representation had been tainted by a conflict of interest. Appellant's trial counsel had previously represented his stepdaughter, who was a victim of his crimes and a witness against him. The trial court dismissed the petition and we reversed and remanded the matter for an evidentiary hearing to determine whether a conflict existed. State v. Kemp, 7th Dist. Mahoning No. 97 CA 123, 1999 WL 1124758 (Nov. 24, 1999). On remand, the trial court determined that no conflict existed. We affirmed the trial court's decision in State v. Kemp, 7th Dist. Mahoning No. 04 MA 54, 2005-Ohio-2115.

         {¶5} On September 10, 2008, Appellant filed a "Motion to Vacate Void Proceedings and Sentence." The trial court denied this motion and we affirmed the decision in State v. Kemp, 7th Dist. Mahoning No. 09-MA-21, 2009-Ohio-6399.

         {¶6} On March 30, 2012, Appellant was released from prison on parole after serving approximately twenty-three years of his sentence. However, on December 16, 2012, Appellant was arrested for an unspecified felony of the fourth degree and was sentenced to thirty days of incarceration. In addition to this thirty-day sentence, Appellant's parole was revoked and he currently remains incarcerated as a result.

         {¶7} We note that the record on appeal does not include the trial court's sentencing entry following Appellant's parole violation. The docket sheet reflects that a parole hearing was scheduled for January 20, 2013, however, the record does not indicate whether the hearing proceeded as scheduled.

         {¶8} On March 11, 2019, Appellant filed a "Motion to Correct a Facially Illegal Sentence." The trial court denied the motion in a one-line judgment entry. It is from this entry that Appellant timely appeals.

         Postconviction Petition

         {¶9} A motion not specifically authorized under the Ohio Rules of Criminal Procedure is classified as a postconviction petition if "it is a motion that (1) was filed subsequent to [the defendant's] direct appeal, (2) claimed a denial of constitutional rights, (3) sought to render the judgment void, and (4) asked for vacation of the judgment and sentence." State v. Hudson, 7th Dist. Jefferson No. 16 JE 0007, 2017-Ohio-4280, ¶ 9, quoting State v. Reynolds, 79 Ohio St.3d 158, 160, 679 N.E.2d 1131 (1997).

         {¶10} In order to successfully assert a postconviction petition, "the petitioner must demonstrate a denial or infringement of his rights in the proceedings resulting in his conviction sufficient to render the conviction void or voidable under the Ohio or United States Constitutions." State v. Agee, 7th Dist. Mahoning No. 14 MA 0094, 2016-Ohio-7183, ¶ 9, citing R.C. 2953.21(A)(1). The petitioner is not automatically entitled to a hearing. State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982). Pursuant to R.C. 2953.21(C), the petitioner bears the burden of demonstrating "substantive grounds for relief through the record or any supporting affidavits. However, as a postconviction petition does not provide a forum to relitigate issues that could have been raised on direct appeal, res judicata bars many claims. Agee at ¶ 10.

         {¶11} The doctrine of res judicata "bars an individual from raising a defense or claiming a lack of due process that was or could have been raised at trial or on direct appeal." State v. Croom, 7th Dist. Mahoning No. 13 MA 98, 2014-Ohio-5635, ¶ 7, citing State v. Ishmail, 67 Ohio St.2d 16, 18, 423 N.E.2d 1068 (1981). However, where "an alleged constitutional error is supported by evidence that is de hors the record, res judicata will not bar the claim because it would have been impossible to fully litigate the claim on direct appeal." State v. Green, 7th Dist. Mahoning No. 02 CA 35, 2003-Ohio-5142, ¶ 21, citing State v. Smith, 125 Ohio App.3d 342, 348, 708 N.E.2d 739 (12th Dist.1997). To overcome the res judicata bar, the petitioner must demonstrate that the claim could not have been appealed based on the original trial record. Agee at ¶ 11, citing State v. Combs, 100 Ohio App.3d 90, 97, 652 N.E.2d 205 (1st Dist.1994).

         {¶12} Appellant argues that the state is barred by res judicata from raising any argument in this matter as it failed to file a brief in the trial court proceedings. Appellant mistakenly applies res judicata to the state, which has not filed any claims in this matter subject to res judicata. Regardless, in the interests of justice we have previously considered the arguments of a party who did not file in the trial court but files a ...


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