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State v. Kemp4/29/2005
JUDGMENT: Affirmed.
{ } Appellant, Thomas A. Kemp, appeals the March 5, 2004, decision of the Mahoning County Court of Common Pleas denying his post-conviction petition after an evidentiary hearing.
{ } Appellant shot and killed Thomas A. Beno on November 4, 1988, after Appellant learned that Beno married Appellant's stepdaughter earlier in the day. Appellant was initially charged with one count of aggravated murder which included no death specification. Thereafter, Appellant's case was presented to the grand jury, and he was indicted on a total of six counts. The charged offenses included two counts of aggravated murder with death specifications, two counts of kidnapping, and two counts of felonious assault. All six counts had attendant firearm specifications.
{ } On February 28, 1989, Appellant entered a plea of no contest to the charges in exchange for the state's dismissal of the death specifications. The trial court rendered a guilty finding, and Appellant was sentenced. Appellant subsequently filed a timely petition for post-conviction relief, which was summarily dismissed by the trial court. Appellant appealed that decision.
{ } This Court reversed and remanded the matter, concluding that the trial court should have considered Appellant's motion in opposition to the state's summary judgment motion since it was filed within the Civ.R.56(C) time limit. State v. Kemp 1999), 7th Dist. No. 97 CA 123. This Court also concluded, " iven that appellant supplied the necessary documents and affidavits demonstrating that his defense attorney represented him under a possible conflict of interest," he met at least the threshold necessary to entitle him to an evidentiary hearing. Id. at 3.
{ } On remand, Appellant was afforded an evidentiary hearing. The trial court again denied his post-conviction petition. (March 5, 2004, Judgment Entry, pp. 2-3.) Appellant, pro se, timely asserted three assigned errors on appeal. Thereafter, the Ohio Public Defender's Office filed a Supplemental Brief in support of Appellant's second claimed error on appeal.
{ } Appellant's first assignment of error claims:
{ } "The trial court erred to Appellant's detriment in denying Appellant's motion to strike the state's untimely 'Post Hearing Brief' wherein the court's judgment entry suggests, in part, that the trial court utilized the state's legal theories and/or research in overruling Appellant's petition."
{ } This issue concerns briefs that were to be submitted by the parties following Appellant's post-conviction evidentiary hearing. Appellant claims that the trial court erred in considering the state's post hearing brief since it was filed after the deadline.
{ } At the conclusion of the June 15, 2001, evidentiary hearing on Appellant's post-conviction claims, the trial court ordered Appellant's brief to be filed by July 31, 2001. The state's brief in response was due on August 31, 2001. (June 15, 2001, Tr., p. 131.) Thereafter, Appellant's counsel requested additional time to prepare, and the trial court set new deadlines. Neither side submitted briefs within these new deadlines.
{ } In December of 2002 and January of 2003, Appellant filed two motions to proceed on a pro se basis.
{ } Thereafter, the court's entry dated April 4, 2003, noted that Appellant's counsel prepared the requisite brief and that he forwarded it to Appellant for review. It was not filed with the court at this time.
{ } On April 25, 2003, Appellant filed a motion entitled "Amendment to 'Motion to Proceed as a Pro Se Litigant.'" The trial court granted Appellant's requests to proceed on a pro se b
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