State v. Kemp

[Cite as State v. Kemp, 2020-Ohio-697.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
THOMAS A. KEMP,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 19 MA 0044
Motion to Certify a Conflict
BEFORE:
Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges.
JUDGMENT:
Denied.
Atty. Paul J. Gains, Mahoning County Prosecutor, 21 West Boardman Street, 6th Floor,
Youngstown, Ohio 44503, for Plaintiff-Appellee
Thomas A. Kemp, Pro se, #209-194, Grafton Correctional Institution, 2500 South Avon
Belden Road, Grafton, Ohio 44044.
Dated: February 26, 2020
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PER CURIAM.
{¶1} On December 5, 2019, we released our Opinion in State v. Kemp, 2019-
Ohio-5094, -- N.E.3d -- (7th Dist.). On December 18, 2019, Appellant Thomas A. Kemp
filed a motion to certify a conflict to the Ohio Supreme Court, pursuant to App.R. 25(A).
As our Opinion does not conflict with State v. Smith, 2019-Ohio-155, 131 N.E.3d 321 (8th
Dist.), we deny Appellant’s motion.
{¶2} Motions to certify a conflict are governed by Article IV, Section 3(B)(4) of
the Ohio Constitution. It provides: “Whenever the judges of a court of appeals find that
a judgment upon which they have agreed is in conflict with a judgment pronounced upon
the same question by any other court of appeals of the state, the judges shall certify the
record of the case to the Supreme Court for review and final determination.”
{¶3} Under Ohio law, “there must be an actual conflict between appellate judicial
districts on a rule of law before certification of a case to the Supreme Court for review and
final determination is proper.” Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 613
N.E.2d 1032, (1993), paragraph one of the syllabus. We have adopted the following
requirements from the Supreme Court:
[A]t least three conditions must be met before and during the certification of
a case to this court pursuant to Section 3(B)(4), Article IV of the Ohio
Constitution. First, the certifying court must find that its judgment is in
conflict with the judgment of a court of appeals of another district and the
asserted conflict must be “upon the same question.” Second, the alleged
conflict must be on a rule of law—not facts. Third, the journal entry or
opinion of the certifying court must clearly set forth that rule of law which the
Case No. 19 MA 0044
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certifying court contends is in conflict with the judgment on the same
question by other district courts of appeals. (Emphasis deleted.)
Id. at 596.
{¶4} The issue in this appeal centers around Appellant’s sentence for his
aggravated murder conviction. In relevant part, the former version of R.C. 2929.03(A),
which was in effect at the time Appellant was sentenced, provided:
If the indictment or count in the indictment charging aggravated murder
does not contain one or more specifications of aggravating circumstances
listed in division (A) of section 2929.04 of the Revised Code, then, following
a verdict of guilty of the charge of aggravated murder, the trial court shall
impose a sentence of life imprisonment with parole eligibility after serving
twenty years of imprisonment on the offender.
{¶5} Appellant argues that our Opinion is in conflict with Smith, supra. Appellant
contends that the Smith court ruled that Mr. Smith’s sentence violated R.C. 2929.03(A),
and because this was essentially the same argument Appellant raised on appeal, he
believes his sentence likewise runs afoul of R.C. 2929.03(A).
{¶6} In Smith, the Eighth District had before it a judgment entry sentencing the
appellant to “twenty (20) years to life,” with no mention of parole eligibility. Id. at ¶ 18.
The court held on appeal that this language created an indefinite sentence, which did not
comply with the requirements of R.C. 2929.03(A). Id. at ¶ 25.
{¶7} Our holding in the instant case relied on two significant facts that are not
found within Smith. First, the judgment entry in the instant case was a pre-printed form
Case No. 19 MA 0044
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that did not specifically provide a means to notate parole eligibility. The trial court’s use
of “twenty years” as the minimum and “life” as the maximum on this form was the only
manner in which the court could convey that while Appellant was eligible for parole after
twenty years, he remained subject to a life sentence. Importantly, on March 20, 2012,
Appellant was granted parole. Clearly, all parties understood that Appellant’s sentence
was not indefinite. Once Appellant was granted parole, he was released from what he
argues is the determinate portion of his sentence. The appellant in Smith was denied
parole based on his sentence and the fact that the parole board believed he posed a
danger to the public, thus was still serving an indeterminate sentence. The fact that
Appellant violated his parole and is now serving a life prison sentence for the violation
does not change the significance that he was subject to and was, in fact, granted parole.
Thus, the facts that support the instant holding are critically different from those in support
of the holding in Smith. As such, this record does not reveal any conflict.
{¶8} Accordingly, Appellant’s motion to certify a conflict is denied.
JUDGE CHERYL L. WAITE
JUDGE GENE DONOFRIO
JUDGE CAROL ANN ROBB
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 19 MA 0044