State v. KempState v. Kemp
For Plaintiff-Appellee Paul Gains Prosecutor Ralph M. Rivera Assistant Prosecutor 21 W. Boardman St., 6th Floor Youngstown, Ohio 44503-1426
For Defendant-Appellant Thomas Kemp, pro-se #209-194 2500 S. Avon-Belden Rd. Grafton, Ohio 44044
{¶1} Defendant-appellant Thomas Kemp appeals the denial of his successive petition for postconviction relief. Kemp challenges his conviction based on a violation of his speedy-trial rights and alleges his sentence was void because a three-judge panel was not convened to sentence him.
{¶2} Over twenty years ago and in the presence of his wife, Bonnie, and his step-daughter, Lori, Kemp shot and killed Thomas Beno, who had just married Lori earlier in the day. Kemp was indicted on two counts of aggravated murder with death specifications in connection with Beno‘s death and two counts each of kidnapping and felonious assault in connection with Bonnie and Lori. All six counts carried firearm specifications.
{¶3} On February 29, 1989, Kemp pleaded no contest to all six counts in exchange for the state‘s dismissal of the death specifications. The trial court entered a guilty finding and sentenced Kemp to twenty-five years to life in prison.
{¶4} Kemp appealed his conviction alleging a violation of his speedy-trial rights and this court found no merit to those arguments and affirmed his conviction. State v. Kemp (Feb. 13, 1990), 7th Dist. No. 89 C.A. 43.
{¶5} In 1996, Kemp filed a petition for postconviction relief alleging ineffective assistance of counsel based on his trial counsel‘s conflict of interest. Kemp had been appointed two attorneys to represent him. One of them had performed legal services for his stepdaughter Lori, a victim-witness who was widowed when Kemp murdered her husband and was also one of the victims of the kidnapping and felonious assault counts. The trial court summarily dismissed the petition. This court reversed and remanded for an evidentiary hearing. State v. Kemp (Nov. 24, 1999), 7th Dist. No. 97 CA 123.
{¶6} On remand, the trial court conducted an evidentiary hearing on Kemp‘s claims. The trial court again denied the petition, this time after considering the merits of Kemp‘s claims. Kemp appealed again and this court affirmed the trial court‘s decision denying the petition. State v. Kemp, 7th Dist. No. 04 MA 54, 2005-Ohio-2115.
{¶8} Kemp‘s sole assignment of error states:
{¶9} “THE TRIAL COURT EXCEEDED ITS AUTHORITY IN DENYING APPELLANT‘S MOTION BECAUSE HIS SENTENCES ARE VOID, VIOLATION OF THE DUE PROCESS CLAUSES OF BOTH THE UNITED STATES AND OHIO CONSTITUTION.”
{¶10} “Where a criminal defendant, subsequent to his or her direct appeal, files a motion seeking vacation or correction of his or her sentence on the basis that his or her constitutional rights have been violated, such a motion is a petition for postconviction relief as defined in
{¶11} Petitions for postconviction relief are governed by
{¶13} If a postconviction relief petition is filed beyond the 180-day time limitation or the petition is a second or successive petition for postconviction relief,
{¶14} Unless the defendant makes the showings required by
{¶15} In this case, Kemp‘s petition was unquestionably filed beyond the 180-day time limit set forth in
{¶16} Assuming the petition was timely and turning to the substance of Kemp‘s claims – speedy-trial violation and failure to convene a three-judge sentencing panel; each is barred under the doctrine of res judicata.
{¶17} The Ohio Supreme Court has long recognized that “any issue that could have been raised on direct appeal and was not is res judicata and not subject to review in subsequent proceedings.” State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, at ¶16 (holding that a defendant who fails on direct appeal to
{¶18} “Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant * * * on an appeal from that judgment.” (Emphasis added.) State v. Perry (1967), 10 Ohio St.2d 175, 39 O.O.2d 189, 226 N.E.2d 104, paragraph nine of the syllabus.
{¶19} “Thus, the doctrine serves to preclude a defendant who has had his day in court from seeking a second on that same issue. In so doing, res judicata promotes the principles of finality and judicial economy by preventing endless relitigation of an issue on which a defendant has already received a full and fair opportunity to be heard.” (Citation omitted.) Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, at ¶18.
{¶20} Each of Kemp‘s claims here is one that was raised or could have been raised in his direct appeal. Kemp‘s first claim is one that could have been raised in his direct appeal.
{¶21} Kemp argues that the trial court disregarded the statutory requirements of
{¶22} Concerning Kemp‘s argument that his sentence is void for failure to convene a three-judge panel, the Ohio Supreme Court has specifically rejected the argument in the context of a collateral attack:
{¶23} “The failure of a court to convene a three-judge panel, as required by
{¶24} Like in Pratts, Kemp‘s attack on his sentence fails because he is asserting it in a postconviction petition which is a collateral attack. Kemp should have raised the issue in his direct appeal and failed to do so. Therefore, the matter is now barred under the doctrine of res judicata.
{¶25} Contrary to Kemp‘s assertion, the Ohio Supreme Court‘s decision in Simpkins did not overrule Pratts. Pratts was merely distinguished by Simpkins. In Simpkins, the sentencing court failed to include in a defendant‘s sentence a statutorily mandated period of postrelease control. The question became whether that failure rendered the sentence void or simply voidable. After noting the general rule that sentencing errors are not jurisdictional and do not necessarily make a sentence void, the Court acknowledged that there are exceptions to that general rule and that a sentencing court‘s failure to impose a sentence as required by law is just one such exception. In Simpkins, the Court viewed the sentencing court‘s failure to include in the defendant‘s sentence a statutorily mandated period of postrelease control as a failure to impose a sentence as required by law rendering the sentence void. The court noted that “[a]lthough res judicata applies to a voidable sentence and may operate to prevent consideration of a collateral attack based on a claim that could have been raised on direct appeal from the voidable sentence, * * * we have not applied res judicata to cases in which the sentence was void.” Simpkins specifically distinguished Pratts observing that Pratts addressed aspects of res judicata doctrine in collateral attacks on voidable judgments. The Court left undisturbed Pratts’ holding that failure of a court to convene a three-judge panel, as required by
{¶27} Accordingly, Kemp‘s sole assignment of error is without merit.
{¶28} The judgment of the trial court is hereby affirmed.
Vukovich, P.J., concurs.
Waite, J., concurs.