Opinion
No. 91-AP-100
Decided July 26, 1991.
ON AFFIDAVIT OF DISQUALIFICATION in Mahoning County Court of Common Pleas case No. 90-CR-131.
The affidavit of disqualification herein was filed by J. Gerald Ingram, counsel for defendant, Carolyn Childress, seeking the disqualification of Judge Peter C. Economus from further proceedings in the above-captioned case.
The record indicates that the parties presented Judge Economus with a plea agreement in which the prosecutor agreed to recommend "super shock" probation pursuant to R.C. 2947.061 if defendant were sentenced to a term of incarceration. The affiant alleges Judge Economus stated he would deny "super shock" probation in this matter, from which affiant infers Judge Economus also would deny defendant probation and sentence her to a term of imprisonment. Affiant claims Judge Economus had no evidence before him from which this determination could be made and, therefore, concludes that he has prejudged the issue of probation.
Judge Economus denies having prejudged this case. He indicates he considered the plea agreement and inquired as to the nature of the offenses charged in the indictment. Based on information provided by both affiant and the prosecuting attorney, Judge Economus informed the parties that he could not accept the provision regarding "super shock" probation.
Judge Economus' refusal to accept the provision of the proposed plea agreement relative to "super shock" probation was based on information provided to him by the parties and essentially resulted in rejection of the proposed agreement. This act is within the discretion of the trial judge and is subject to review on appeal. There is insufficient evidence to support a claim that Judge Economus has prejudged the issue of defendant's sentence and will ignore the criteria set forth in R.C. 2951.02 if it becomes necessary to determine whether to sentence defendant to a term of imprisonment or place him on probation.
For the foregoing reasons, the affidavit of disqualification is found not well taken and is denied.