Opinion
No. 21-AP-050
04-29-2021
IN RE DISQUALIFICATION OF TRIMMER. The State of Ohio v. Phelps.
{¶ 1} Defendant Robert Lee Phelps has filed an affidavit pursuant to R.C. 2701.03 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge David A. Trimmer from the above-referenced case, now pending on Mr. Phelps's motion to withdraw his guilty plea.
{¶ 2} Mr. Phelps claims that prior to entering his plea, Judge Trimmer repeatedly threatened that if Mr. Phelps took the case to trial and was convicted, the judge would send him to prison for the rest of his life and "bur[y] [him] under the prison." Mr. Phelps further claims that when his counsel was preparing for trial, counsel contracted COVID-19 and requested a continuance. But according to Mr. Phelps, Judge Trimmer denied the request and stated that if counsel were not prepared for trial, the trial would proceed without him. Mr. Phelps also alleges that Judge Trimmer referred to him as a drug "king pin" and that it would be inappropriate for Judge Trimmer to decide the pending motion because it concerns the judge's own conduct.
{¶ 3} Judge Trimmer filed a response to the affidavit and denies making the comments that the affidavit attributes to him. The comments, the judge states, "are not within my judicial style; nor would I ever think that such comments would be appropriate."
{¶ 4} In disqualification requests, "[t]he term ‘bias or prejudice’ ‘implies a hostile feeling or spirit of ill-will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.’ " In re Disqualification of O'Neill , 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d 17, ¶ 14, quoting State ex rel. Pratt v. Weygandt , 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956). "The proper test for determining whether a judge's participation in a case presents an appearance of impropriety is * * * an objective one. A judge should step aside or be removed if a reasonable and objective observer would harbor serious doubts about the judge's impartiality." In re Disqualification of Lewis , 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8. In addition, a "presumption of impartiality" is accorded all judges in affidavit-of-disqualification proceedings. In re Disqualification of Celebrezze , 101 Ohio St.3d 1224, 2003-Ohio-7352, 803 N.E.2d 823, ¶ 7.
{¶ 5} Mr. Phelps has not established that Judge Trimmer has hostile feelings toward him or has formed a fixed anticipatory judgment on any issue in the underlying case. Nor has Mr. Phelps set forth a compelling argument for disqualifying Judge Trimmer to avoid an appearance of partiality. The burden in these matters falls on the affiant to submit sufficient evidence demonstrating that disqualification is warranted. In re Disqualification of Harwood , 137 Ohio St.3d 1221, 2013-Ohio-5256, 999 N.E.2d 681, ¶ 5. When necessary, an affiant should submit evidence beyond the affidavit to support the allegations contained therein. Id. Here, Mr. Phelps attributes comments to Judge Trimmer that the judge denies making. Mr. Phelps offered only his affidavit to support his allegations, even though most of his claims, if true, could have been substantiated by a transcript or other evidence. Given the conflicting accounts in the record—and Mr. Phelps's failure to substantiate his allegations—he has failed to set forth sufficiently compelling evidence to overcome the presumption that Judge Trimmer is fair and impartial. See, e.g. , In re Disqualification of Baronzzi , 135 Ohio St.3d 1212, 2012-Ohio-6341, 985 N.E.2d 494, ¶ 8 (affiant's "vague and unsubstantiated allegations—especially in the face of clear denials by Judge Baronzzi—are insufficient to overcome the presumption that Judge Baronzzi is fair and impartial").
{¶ 6} Mr. Phelps may have other remedies, including appeal, if he believes that his plea was not voluntary. "An affidavit of disqualification, however, addresses the narrow issue of the possible bias of a judge and ‘it is not a vehicle to contest matters of substantive or procedural law.’ " In re Disqualification of McGrath , 149 Ohio St.3d 1224, 2016-Ohio-8601, 74 N.E.3d 453, ¶ 2, quoting In re Disqualification of Solovan , 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4. And contrary to Mr. Phelps's allegations, the docket for the underlying matter shows that Judge Trimmer in fact granted defense counsel's request to continue the trial after counsel notified the court that he had contracted COVID-19.
{¶ 7} Finally, Mr. Phelps has failed to establish why it would be inappropriate for Judge Trimmer to decide the pending motion. Judge Trimmer's disqualification is not required merely because Mr. Phelps has raised questions about the judge's conduct during pretrial or trial proceedings. See, e.g. , In re Disqualification of Nastoff , 134 Ohio St.3d 1232, 2012-Ohio-6339, 983 N.E.2d 354, ¶ 11 ("The very nature of a postconviction-relief proceeding requires trial judges to evaluate and pass upon their own actions and conduct"). While there may be circumstances that would disqualify Judge Trimmer from presiding over Mr. Phelps's postconviction motion, Mr. Phelps has not established any such circumstances in his affidavit.
{¶ 8} The affidavit of disqualification is denied. The case may proceed before Judge Trimmer.