[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
                                                                                           –2–


 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



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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



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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
