State v. Kempton

• Decision Date: 23 February 2018
• Docket Number: Case No. 15CA3489
• Citation: 2018 Ohio 928
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. WILLIAM KEMPTON, Defendant-Appellant.
• Court: Ohio Court of Appeals

2018 Ohio 928

STATE OF OHIO, Plaintiff-Appellee, v. WILLIAM KEMPTON, Defendant-Appellant.

Case No. 15CA3489

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ROSS COUNTY

February 23, 2018

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Assistant Ohio Public Defender, Columbus, Ohio, for appellant.

Matthew S. Schmidt, Ross County Prosecuting Attorney, and Pamela C. Wells, Assistant Ross County Prosecuting Attorney, Chillicothe, Ohio, for appellee.

Hoover, P.J.

{¶ 1} This is a reopened appeal by defendant-appellant, William Kempton, from his conviction and sentence for aggravated robbery entered by the Ross County Court of Common Pleas. On appeal, Kempton claims (1) that his Sixth Amendment right to counsel was violated when he was represented by an office that also represented an unindicted codefendant and key prosecutorial witness in an unrelated matter, who later testified against him at trial; (2) that the trial court violated Evid.R. 804(B)(1) by allowing the State to use the alleged victim's former testimony against him at trial; and (3) that his previous appellate counsel was ineffective by failing to ensure that a transcript of proceedings was included in the record. For the following reasons, we affirm the judgment of the trial court.

I. Facts and Procedural History

{¶ 2} On November 20, 2014, a complaint was filed in the Chillicothe Municipal Court charging Kempton with robbery in violation of R.C. 2911.02(A)(2), a felony of the second degree.

{¶ 3} On December 1, 2014, a preliminary hearing was conducted in the municipal court. Kempton was represented by Joseph Weckbacher, an Assistant Ohio Public Defender at the Office of the Ohio Public Defender's Ross County Branch ("Ross County Branch"). Several witnesses apparently testified, including the alleged victim, James Arnold. The municipal court found probable cause and bound the case over to the Ross County Court of Common Pleas.

{¶ 4} On December 19, 2014, Kempton was indicted on a single count of aggravated robbery in violation of R.C. 2911.01(A)(3), a felony of the first degree. He pleaded not guilty.

{¶ 5} The case proceeded to a jury trial on March 25, 2015. At trial, Kempton's counsel, Susan Pettit and Chase Carter, also Assistant Ohio Public Defenders at the Ross County Branch, orally raised a motion in limine seeking to prevent the State from introducing Arnold's preliminary hearing testimony at trial. Apparently, Arnold had passed away from an illness, and the State intended to introduce his former testimony under Evid.R. 804(B)(1).

{¶ 6} After reviewing Arnold's former testimony, the trial court denied Kempton's motion, concluding that it satisfied the requirements of Evid.R. 804(B)(1). The Prosecutor later read Arnold's former testimony into the record; and a copy of it was introduced as evidence.

{¶ 7} Arnold had previously testified that on the morning of October 17, 2014, his friends, Kempton and Jamie Moore-Guysinger ("Guysinger"), picked him up from his home in Waverly and drove him to the Kroger Pharmacy so he could pick up a prescription for Percocet. Kempton and Guysinger had taken Arnold to the pharmacy before, so this was not out of the ordinary. Arnold sat in the front passenger seat; and Kempton sat in the backseat, directly behind him.

{¶ 8} After Arnold got his Percocet, Kempton asked Arnold whether he would mind going to the Scioto Trail State Park in Ross County because Kempton needed to get some money from his brother. Arnold agreed; and the trio drove into the park. As they were driving, Arnold began to feel "real strange" and then saw a belt come around his neck and jerk him back. He lost consciousness and awoke several hours later "way down in a ravine." His phone, eyeglasses, and Percocet were missing. He flagged down a truck driver who helped him to safety.

{¶ 9} In addition to Arnold's testimony, the State presented testimony from two investigating officers and Guysinger. Guysinger was granted immunity in exchange for her cooperation. Guysinger testified that on the morning of October 17, 2014, she and her boyfriend, Kempton, went to Arnold's house. When they arrived there, Arnold and Kempton had some coffee; and then the trio left for the Kroger pharmacy. Guysinger drove. Arnold sat in the front passenger seat; and Kempton sat in the backseat, directly behind Arnold.

{¶ 10} After Arnold picked up his prescription, Kempton asked Arnold if he could use Arnold's cell phone to call his brother. Arnold agreed; and Kempton made a call. When the call ended, Kempton told Guysinger to go to his brother's house so that he could get gas money. The trio left Kroger and headed toward Kempton's brother's house on Alma Omega Road.

{¶ 11} As they were driving up Alma Omega Road, Kempton told Guysinger to turn down a side road. Guysinger complied; and shortly thereafter, Kempton slipped a belt around Arnold's neck and began choking him. Guysinger told Kempton to stop; but he did not. Arnold quickly lost consciousness. A short while later, after the car was stopped, Kempton pulled Arnold out of the car, took the Percocet pills out of his pocket, and threw him into a ravine.

{¶ 12} When Kempton and Guysinger got home, Kempton made a call; and within the hour, Kempton left the house. He returned home with "some of the pills." Kempton instructed Guysinger to delete Arnold's number from her phone and avoid contact with him.

{¶ 13} Following the presentation of evidence, Kempton was found guilty and sentenced to 10 years in prison. He timely appealed, arguing that the trial court erred in admitting Arnold's former testimony under Evid.R. 804. However, we affirmed the judgment of the trial court when trial counsel, who was also handling the appeal, failed to ensure that a transcript of proceedings was included in the record. State v. Kempton, 4th Dist. Ross No. 15CA3489, 2016-Ohio-1183.

{¶ 14} Thereafter, Kempton filed an application to reopen his appeal, arguing that he received ineffective assistance of appellate counsel. We granted the application, concluding that there was a genuine issue as to whether Kempton received effective assistance from appellate counsel. Kempton was appointed new counsel, who supplemented the record with a transcript of proceedings. The parties have now submitted their briefs on reopening.

II. Assignments of Error

{¶ 15} Kempton assigns the following errors for our review:

Assignment of Error No. I:

Mr. Kempton's Sixth Amendment right to counsel was violated when he was represented by an office that also represented an unindicted codefendant and key prosecutorial witness, who later testified against him at trial. Sixth Amendment to the U.S. Constitution; Ohio Constitution, Article I, Section 10; United States v. Cronic applies. 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Prof.Cond.R. 1.7, 1.10; Order of Immunity (Mar. 25, 2015); Preliminary Hr'g Tr. 5-6; Trial Tr. 69.

Assignment of Error No. II:

The trial court violated Evid.R. 804(B)(1) by allowing the State to use Mr. Arnold's former testimony against Mr. Kempton at trial. Sixth Amendment to the U.S. Constitution; Ohio Constitution, Article I, Section 10; Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); State v. McCormick, 4th Dist. Jackson No. 95CA765, 1996 Ohio App. LEXIS 3072 (July 5, 1996); Evid.R. 801-804; Preliminary Hr'g Tr. 1-18; Trial Tr. 11-15, 24, 37-42, 60, 72-74, 77, 88-89, 93, 97-100, 108-109, 112, 121-130, 132, 142, 160.

Assignment of Error No. III:

Previous appellate counsel rendered ineffective assistance of counsel. Fourteenth Amendment to the U.S. Constitution; Ohio Constitution, Article I, Section 16; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); State v. Kempton, 4th Dist. Ross NO. 15CA3489, 2016-Ohio-1181; App.R.26(B)(7); Assignment of Error I; Assignment of Error II; Entry Granting Application to Reopen (Aug. 3, 2016).

III. Law and Analysis

A. Ross County Branch Office's Conflict of Interest

{¶ 16} In his first assignment of error, Kempton argues that his Sixth Amendment right to counsel was violated insofar as the Ross County Branch Office had a conflict of interest that prevented the office from rendering effective assistance of counsel to him throughout his criminal proceedings. Specifically, Kempton alleges that during a portion of his trial court proceedings Assistant Ohio Public Defender Jessica McDonald—also of the Ross County Branch Office—was representing Guysinger in an unrelated case. In support, Kempton cites multiple documents accessible on the Chillicothe Municipal Court's online docket which purportedly show that:

Guysinger had been charged in Chillicothe Municipal Court with a theft offense on April 28, 2014. She was assessed a public-defender fee on May 5, 2014, and Attorney McDonald filed a motion to preserve evidence, jury demand, and demand for discovery in that case on May 7, 2014. Several months later, Attorney McDonald filed a written plea of not guilty by reason of insanity and filed a motion for leave to determine competency. Nearly two months after Mr. Kempton's preliminary hearing, Attorney McDonald filed a motion to withdraw as counsel due to a conflict of interest. The motion was granted.

(Citations omitted.) Appellant's Brief, p. 2-3. Kempton contends that this dual representation "created a conflict of interest at the preliminary hearing, which subsequently tainted the office's representation of Mr. Kempton throughout his criminal proceedings." Appellant's Brief, p. 7.

{¶ 17} In response, the State argues, first and foremost, that Kempton's argument is speculative because it relies upon facts not in the appellate record - specifically, the online municipal court docket. However, there are circumstances in which an appellate court may properly take judicial notice of publicly accessible records, including court documents and dockets, in deciding appeals. See, e.g., State v. Bradford, 2017-Ohio-3...