Court of Appeals of Ohio, Seventh District, Mahoning
Criminal Appeal from the Court of Common Pleas of Mahoning
County, Ohio Case No. 88 CR 634.
Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M.
Rivera, Assistant Prosecuting Attorney, for
A. Kemp, Pro se, #209-194, Grafton Correctional Institution.
BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb,
OPINION AND JUDGMENT ENTRY
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.
and Procedural History
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.
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).
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.
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,
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.
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.
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.
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
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.
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).
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