[Cite as State v. Kemp,
2024-Ohio-5733.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-24-1084
L-24-1085
Appellee L-24-1086
L-24-1087
v.
Trial Court No. CR0202301971
Amir Kemp CR0202302539
CR0202202647
Appellant CR0202302675
DECISION AND JUDGMENT
Decided: December 6, 2024
…
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.
Tyler Naud Jechura, for appellant.
…
MAYLE, J.
{¶ 1} In this consolidated appeal, following guilty pleas, defendant-appellant,
Amir Kemp, appeals the March 8, 2024 judgments of the Lucas County Court of
Common Pleas convicting him of multiple offenses and sentencing him to an aggregate
term of 78 months in prison. For the following reasons, we affirm in part, reverse in part,
and remand trial court case No. CR 202202647 so the trial court can enter a nunc pro tunc
judgment entry that contains the consecutive-sentence findings that it made at the
sentencing hearing.
I. Background
{¶ 2} This appeal involves four separate cases.
{¶ 3} In CR 202202647 (“case 2647”), Kemp was indicted on September 27,
2022, with one count of escape in violation of R.C. 2921.34(A)(1) and (C)(2)(b), a third-
degree felony. On December 19, 2022, Kemp entered a plea of guilty to the lesser-
included offense of attempted escape, in violation of R.C. 2923.02(A), and R.C.
2921.34(A)(1) and (C)(2)(b), a fourth-degree felony. On January 5, 2023, the trial court
sentenced Kemp to two years of community control and notified him that a violation of
community control “will lead to a longer or more restrictive sanction . . . , including a
prison term of 18 months as to Count 1.”
{¶ 4} In CR 202301971 (“case 1971”), Kemp was indicted on June 28, 2023, with
one count of forgery, in violation of R.C. 2913.31(A)(3) and (C)(1)(a) and (b) (count 1),
and two counts of theft in violation of R.C. 2913.02(A)(3) and (B)(2) (counts 2 and 5),
each a fifth-degree felony.1 The indictment alleged that Kemp and a co-defendant
committed these offenses at various times between August 2, 2019, and February 13,
2021.
1
Counts 3 and 4 of the indictment alleged forgery and theft against his co-defendant.
2.
{¶ 5} In CR 202302539 (“case 2539”), Kemp was indicted on October 3, 2023,
with having weapons while under disability in violation of R.C. 2923.13(A)(3) and (B), a
third-degree felony (count 1); compelling prostitution in violation of R.C. 2907.21(A)(1)
and (C), a third-degree felony (count 2); two counts of promoting prostitution in violation
of R.C. 2907.22(A)(2) and (B)(1), each a fourth-degree felony (counts 3 and 4); felonious
assault in violation of R.C. 2903.11(A)(1) and (D), a second-degree felony (count 5); and
counterfeiting in violation of R.C. 2913.30(B)(4) and (C)(1), a fourth-degree felony
(count 6). The indictment alleged that Kemp committed these offenses at various times
between December 1, 2019, and July 31, 2021.
{¶ 6} In CR 202302675 (“case 2675”), Kemp was indicted on October 26, 2023,
with possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(a) (count 1), and
possession of a fentanyl-related compound in violation of R.C. 2925.11(A) and
(C)(11)(a) (count 2), each a fifth-degree felony. The indictment alleged that Kemp
possessed cocaine and a fentanyl-related compound on or about September 1, 2023—i.e.,
during the term of Kemp’s community control in case 2647.
{¶ 7} According to the docket in case 2647, the state served defense counsel with
several notifications of criminal activity, and Kemp’s community control violation
hearing was rescheduled on eight separate occasions—at his request—between June 1,
2023, and February 8, 2024. On February 8, 2024, the trial court considered Kemp’s
alleged community control violation in case 2647 in conjunction with a plea hearing in
the other three cases, and the following occurred.
3.
{¶ 8} In case 1971, Kemp pleaded guilty to count 1 (forgery) and count 2 (theft),
and the state agreed to seek dismissal of count 5 at sentencing.
{¶ 9} In case 2539, Kemp pleaded guilty to count 1 (having weapons under
disability), count 2 (compelling prostitution), and count 6 (counterfeiting), and the state
agreed to seek dismissal of the remaining counts at sentencing.
{¶ 10} In case 2675, Kemp pleaded guilty to count 2 (possession of a fentanyl-
related compound), and the state agreed to seek dismissal of count 1 at sentencing.
{¶ 11} The trial court conducted a plea colloquy, and concluded that Kemp had
made a knowing, intelligent, and voluntary decision to plead guilty to the charges. The
court found Kemp guilty of the offenses as outlined in the various plea forms.
{¶ 12} In case 2647, Kemp admitted violating community control and waived a
hearing. Kemp’s counsel stated that “[w]e will acknowledge that by virtue of the
convictions in the other three cases that we’ve just gone through that that would
constitute a violation of his terms and conditions of community control. We specifically
waive a hearing in that regard.” The trial court confirmed that Kemp admitted the
violation and waived his right to a hearing, and then found him to be in violation of the
terms of his community control. The court ordered a presentence investigation report and
continued the matters for sentencing.
{¶ 13} On March 4, 2024, the trial court held a combined sentencing hearing in all
four cases. The court began the hearing by allowing Kemp’s attorney to speak in
mitigation. Counsel stated that Kemp needs help with drugs, alcohol, and mental health,
4.
and that he wants to get a job and prove that he can “do well.” Counsel noted that the
bulk of the offenses occurred several years ago and were therefore “dated” and “in the
past.” Kemp successfully completed critical thinking, decision making, anger
management, and domestic abuse classes while in custody. His “erratic behavior” is due
to his need for mental health services and drug treatment. Counsel acknowledged,
however, that Kemp has pending criminal charges against him in other jurisdictions,
including Lorain County and Monroe County, Michigan. Counsel nonetheless asked the
court “to give him the opportunity to show the Court that his words are not hollow, that
he would follow through if given the opportunity.”
In response, the state asked the court to impose “the allotted 10-and-a-half years in
prison.” The state argued that Kemp committed “a slew of crimes, and he keeps
committing crimes while he’s in jail and in custody for the cases that are in front of us
today.” He has “never slowed down his criminal activity . . .” and keeps acquiring new
felony charges. Additionally, he has “never been compliant with drug screens.” The
state also argued that Kemp is “clearly violent.” Not only did he force his girlfriend to
engage in prostitution in 2019—which was one of the cases before the court—but he “has
now threatened his now girlfriend to engage in criminal activity with him or he would
break her jaw, . . . or he would beat her ass.” The state argued against community control
“because it hasn’t slowed him down yet . . .” and it did not think that community control
sanctions ever would. Kemp “hasn’t learned his lessons” and should therefore serve 10.5
years in prison.
5.
{¶ 14} The trial court then allowed Kemp to speak on his own behalf. He argued
that the accusations “all stem from a 2019 to 2021 investigation” and “[i]t is now 2024, . .
.” and he wants to “put all [his] legal troubles behind [him].” He said that since being
released in 2023, he’s “only caught a couple minor misdemeanors.” After his 2023
release, he got a job and a driver’s license, but the “only problem” he had was “substance
abuse issues . . . .” Regarding the prostitution charge, he said that he “was in a
relationship with a woman who still to this very day prostitutes herself.” Regarding the
forgery and theft charges, he claimed that his co-defendant became “his victim” only
after “[s]he was told by the detective she was facing 10 or 15 years for Felony 5s.” He
said that having to register as a sex offender for 25 years would be “quite the humiliation
. . . .” Kemp asked the court to recognize that the case concerned allegations “almost five
years old . . .” and asked for a treatment-based sentence.
{¶ 15} The court proceeded to sentencing. Regarding Kemp’s community control
violation in case 2647, the trial court found that Kemp was no longer amenable to
community control and ordered him to serve 18 months in prison.
{¶ 16} As to his convictions in case 1971, case 2539, and case 2675, the trial court
similarly found that Kemp was not amenable to community control and that prison was
consistent with the purposes of sentencing under R.C. 2929.11. In case 1971, the trial
court sentenced him to 12 months in prison on count 1 (forgery) and 12 months in prison
on count 2 (theft). In case 2539, the trial court sentenced him to 24 months in prison on
count 1 (having weapons under disability), 24 months in prison on count 2 (compelling
6.
prostitution), and 12 months in prison on count 6 (counterfeiting). In case 2675, the trial
court sentenced him to 12 months in prison on count 2 (possession of a fentanyl-related
compound).
{¶ 17} The trial court ordered the prison terms in case 2539—count 1 (24 months),
count 2 (24 months), and count 6 (12 months)—to be served consecutively to each other.
It also ordered the prison terms in case 1971, case 2539, and case 2675 to be served
concurrently with each other, but consecutively to the prison term imposed in case 2647
for the community control violation (18 months), for an aggregate term of 78 months (or
6.5 years) in prison.
{¶ 18} Regarding the imposition of consecutive sentences, the trial court stated:
The Court finds pursuant to . . . 2929.14(C)(4) that consecutive
sentences are necessary to protect the public from future crime or to punish
defendant, that consecutive sentences are not disproportionated [sic] to the
seriousness of defendant’s conduct or the danger that he poses to the public
because defendant’s criminal history and criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from future
crime of the defendant and that defendant was on community control when
these matters were committed.
The trial court expressly found that these “same findings” applied to all of the
consecutive sentences it had imposed.
{¶ 19} The trial court issued separate judgment entries, dated March 8, 2024, in
each case. The trial court included findings relating to the imposition of consecutive
sentences in the judgment entries for case 1971, case 2539, and case 2675, but not case
2647.
7.
{¶ 20} Kemp appealed, and assigns a single assignment of error for our review:
THE TRIAL COURT ERRORED [sic] WHEN IT SENTENCED
MR. KEMP TO CONSECUTIVE SENTENCES.
II. Law and Analysis
{¶ 21} In his assignment of error, Kemp argues that the trial court erred by
sentencing him to consecutive sentences because “the trial court only stated the statutory
language” and did not “state its reasoning for imposing consecutive sentences[,]” and
because the “journal entry is also devoid of the facts the court used in its statutory
determination.”
{¶ 22} Under R.C. 2929.14(C)(4), when a trial court imposes multiple prison
terms for convictions of multiple offenses, it may require the offender to serve the prison
terms consecutively if it finds that “consecutive service is necessary to protect the public
from future crime or to punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public,” and if it also finds any of the following:
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
8.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 23} Thus, this statute requires the trial court to make three statutory findings
before imposing consecutive sentences. State v. Beasley, 2018-Ohio-493, ¶ 252; State v.
Bonnell,
2014-Ohio-3177, ¶ 26. It must find that (1) consecutive sentences are necessary
to protect the public or to punish the offender; (2) consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger that the
offender poses to the public; and (3) R.C. 2929.14(C)(4)(a), (b), or (c) is applicable.
Beasley at ¶ 252. “[T]he trial court must make the requisite findings both at the
sentencing hearing and in the sentencing entry.” (Emphasis in original.) Id. at ¶ 253,
citing
Bonnell at ¶ 37. While “a word-for-word recitation of the language of the statute is
not required, . . .” a reviewing court must be able to discern that the trial court engaged in
the correct analysis and the record must contain evidence to support the trial court’s
findings.
Bonnell at ¶ 29.
{¶ 24} Here, Kemp does not argue that the trial court failed to make the required
statutory findings at the sentencing hearing or in the sentencing entries. Rather, he claims
that his consecutive sentences should be vacated because—although the trial court made
the proper R.C. 2929.14(C)(4) findings—the trial court did not state its reasoning or
specify the facts that support its determinations.
{¶ 25} Contrary to Kemp’s arguments, “[a] trial court need not explain its
reasoning for its findings as long as the record contains some evidence to support the trial
9.
court’s findings.” State v. McIntoush, 2024-Ohio-2284, ¶ 18 (6th Dist.), citing
Bonnell at
¶ 29. Here, the trial court made the following findings at the sentencing hearing:
The Court finds pursuant to . . . 2929.14(C)(4) that consecutive
sentences are necessary to protect the public from future crime or to punish
the defendant, that consecutive sentences are not disproportionated to the
seriousness of defendant’s conduct or the danger that he poses to the public
because defendant’s criminal history and criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from future
crime of the defendant and that defendant was on community control when
these matters were committed.
Thus, the trial court made all three required findings under R.C. 2929.14(C)(4) because
the trial court found (1) consecutive sentences are necessary to protect the public or to
punish Kemp; (2) consecutive sentences are not disproportionate to the seriousness of
Kemp’s conduct or the danger he poses to the public; and (3) Kemp’s history of criminal
conduct demonstrates that consecutive sentences are necessary to protect the public from
future crime (R.C. 2929.14(C)(4)(c)) and Kemp was on community control when the
offenses were committed (R.C. 2929.14(C)(4)(a)). The trial court was not required to
assert any additional reasoning or justification for these findings, and we must affirm the
imposition of consecutive sentences “as long as the record contains some evidence to
support the trial court’s findings.” McIntoush at ¶ 18.
{¶ 26} Our review in that regard is very deferential. In a plurality decision, State
v. Gwynne, 2023-Ohio-3851, ¶ 5, vacating State v. Gwynne,
2022-Ohio-4607, the Ohio
Supreme Court explained that “[t]he plain language of R.C. 2953.08(G)(2) requires an
appellate court to defer to a trial court’s consecutive-sentence findings, and the trial
10.
court’s findings must be upheld unless those findings are clearly and convincingly not
supported by the record.” “Clear and convincing evidence” is “‘that measure or degree
of proof which is more than a mere “preponderance of the evidence,” but not to the extent
of such certainty as is required “beyond a reasonable doubt” in criminal cases, and which
will produce in the mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.’” Id. at ¶ 14, quoting Cross v. Ledford,
161 Ohio St. 469
(1954), paragraph three of the syllabus. The lead opinion concluded that an appellate
court “must have a firm belief or conviction that the record does not support the trial
court’s findings before it may increase, reduce, or otherwise modify consecutive
sentences.” Id. at ¶ 15.
{¶ 27} Kemp fails to argue—let alone demonstrate—that the trial court’s findings
are clearly and convincingly not supported by the record. To the contrary, the record
reflects that Kemp has a long criminal history that includes many felonies, including
various types of drug charges, violent crimes, and gun offenses. Kemp’s extensive
criminal history, combined with the wide-ranging felonies at issue in these four cases—
escape, forgery, theft, weapons under disability, compelling prostitution, counterfeiting,
and possession of a fentanyl-related compound—certainly suggest that Kemp is a
habitual offender and a serious danger to the public. Because the court’s findings under
R.C. 2929.14(C)(4) and (C)(4)(c) (criminal history) appear to be supported by the record,
we must affirm.
11.
{¶ 28} But, we note that a “trial court must make the requisite findings both at the
sentencing hearing and in the sentencing entry.” (Emphasis in original.) Beasley, 2018-
Ohio-493, at ¶ 253, citing Bonnell, 2014-Ohio-3177, at ¶ 37. Here, the trial court
included its consecutive-sentence findings in its judgment entries for case 1971, case
2539, and case 2675 but failed to include its findings in the judgment entry for case 2647.
For that reason, we must reverse and remand case 2647 to the trial court so that it can
enter a nunc pro tunc entry setting forth the applicable consecutive-sentencing findings
made at the sentencing hearing.
III. Conclusion
{¶ 29} In sum, the trial court made the proper findings at the sentencing hearing to
impose consecutive sentences under R.C. 2929.14(C)(4). The court was not required to
provide any additional explanation to support its findings, and Kemp failed to
demonstrate that the court’s findings are clearly and convincingly not supported by the
record. Finally, the trial court included its consecutive-sentence findings in its judgment
entries for all cases except case 2647.
{¶ 30} Thus, Kemp’s assignment of error is not well-taken. The trial court’s
judgments in case 1971, case 2539, and case 2675 are affirmed in all respects. The trial
court’s judgment in case 2647 is reversed and remanded for the limited purpose of
entering a nunc pro tunc entry that includes the consecutive-sentence findings made at the
sentencing hearing.
12.
{¶ 31} Kemp is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed, in part,
reversed, in part, and remanded.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
13.
