[Cite as State v. Kemp, 2014-Ohio-3414.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100426

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

ANTOINE KEMP

DEFENDANT-APPELLANT 

JUDGMENT: 

REVERSED AND REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-10-545098 

BEFORE: Keough, J., Jones, P.J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: August 7, 2014 
ATTORNEY FOR APPELLANT

Kevin P. Shannon 

Wegman, Hessler & Vanderburg 

6055 Rockside Woods Blvd., Suite 200 

Independence, Ohio 44131 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

By: Norman Schroth 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
KATHLEEN ANN KEOUGH, J.: 

{¶1} Defendant-appellant, Antoine Kemp, appeals from the trial court’s 

entry after resentencing. We reverse and remand. 

{¶2} In January 2012, Kemp was convicted of murder and tampering with 

evidence. This court affirmed Kemp’s convictions on appeal but vacated the 

sentence and remanded for resentencing. State v. Kemp, 8th Dist. Cuyahoga No. 

97913, 2013-Ohio-167. 

{¶3} Upon remand, the court set the matter for resentencing. After 

receiving notification of the resentencing date, Kemp filed a motion in which he 

objected to resentencing by videoconference and asserted his due process right to be 

present at all critical stages of the proceedings. 

{¶4} The trial court proceeded with resentencing in April 2013. Kemp’s 

counsel was present in the courtroom, as was the prosecutor, but Kemp appeared by 

videoconference from prison. Kemp objected to not being present in the 

courtroom, and told the judge that he had a Sixth Amendment right to be present, 

and that he had not waived his right to be physically present at resentencing. The 

trial court ruled that Kemp was present “for all intents and purposes” because he 

was present by video and proceeded with resentencing. The trial court sentenced 

him to an indefinite term of 15 years to life in prison on Count 1 (murder) and 36 
months incarceration on Count 2 (tampering with evidence), to be served 

concurrently. This appeal followed. 

{¶5} Kemp contends that the trial court erred by resentencing him by 

videoconference because he was not physically present in the courtroom. This 

court addressed the same issue in State v. Moore, 8th Dist. Cuyahoga No. 86224, 

2006-Ohio-816, and held that “Crim.R. 43 mandates that a defendant be physically 

present at sentencing except when the rule specifically provides otherwise or a 

defendant waives his right to be present.” Id. at ¶ 23. 

{¶6} Crim.R. 43(A) requires a defendant to be physically present at “every 

stage of the criminal proceedings and trial, * * * including the imposition of 

sentence, except as otherwise provided by these rules.” Crim.R. 43(B) permits a 

court to exclude a defendant from any stage of a hearing or trial for disruptive 

conduct. Further, under Crim.R. 43(A)(2), in misdemeanor cases or in felony 

cases where a waiver has been obtained in writing or on the record, the court may 

permit the defendant’s participation by videoconference. 

{¶7} Kemp was not excluded from his resentencing for disruptive conduct 

nor did he execute a waiver that would have permitted the trial court to resentence 

him by videoconference. In fact, Kemp objected to the trial court’s decision to 

resentence him by videoconference, first by motion and then at resentencing. 
Accordingly, the trial court erred in resentencing Kemp outside his physical 

presence in the courtroom. 

{¶8} The state concedes the error but suggests that it would be a waste of 

resources to transport Kemp to and from the court for resentencing and, therefore, 

contends that we should simply impose the same sentence imposed by the trial court 

at resentencing. The state argues that our authority to do so derives from App.R. 

12(A)(1)(a), which provides that this court has authority on an appeal from a trial 

court to “[r]eview and affirm, modify, or reverse the judgment or final order 

appealed.” (Emphasis added.) 

{¶9} We fail to see how entering the same sentence imposed by the trial 

court at resentencing somehow modifies the judgment, as suggested by the state. 

Furthermore, the state asks us to ignore the clear directive of Crim.R. 43(A) — a 

rule that embodies a defendant’s constitutional right to be present in the courtroom 

at all critical stages of his criminal trial, Moore, 2006-Ohio-816 at ¶ 8, and 

specifically requires that a defendant be physically present at sentencing. We 

decline to do so and, accordingly, reverse and remand for resentencing at which 

Kemp is physically present in the courtroom. 

{¶10} Reversed and remanded. 

It is ordered that appellant recover from appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

 

KATHLEEN ANN KEOUGH, JUDGE 

LARRY A. JONES, SR., P.J., and 

EILEEN T. GALLAGHER, J., CONCUR