Opinion
No. 21-AP-059
05-21-2021
IN RE DISQUALIFICATION OF VON ALLMAN. The State of Ohio v. Calel.
{¶ 1} Gwendolyn Starda, counsel for the defendant, has filed an affidavit pursuant to R.C. 2701.03 and 2701.031 and Article IV, Section 5(C) of the Ohio Constitution seeking to disqualify Judge Nanette DeGarmo Von Allman from the above-referenced case, now pending for trial.
{¶ 2} Ms. Starda avers that at a recent pretrial conference, Judge Von Allman made comments indicating that she has already decided the defendant's guilt based on facts that had not been properly admitted into evidence. Judge Von Allman filed a response to the affidavit and requests that it be denied. For the reasons explained below, no basis has been established to order the disqualification of Judge Von Allman.
Timing of the affidavit
{¶ 3} R.C. 2701.03(B) requires that an affidavit of disqualification be filed "not less than seven calendar days before the day on which the next hearing in the proceeding is scheduled." This statutory deadline may be set aside only "when compliance with the provision is impossible," such as when the alleged bias or prejudice occurs fewer than seven days before the hearing date. In re Disqualification of Leskovyansky , 88 Ohio St.3d 1210, 723 N.E.2d 1099 (1999). Here, Ms. Starda filed her affidavit of disqualification three days before the scheduled trial. She contends that it was impossible for her to timely file the affidavit because the conduct that gave rise to the affidavit occurred five days before the trial date. In light of Ms. Starda's averments, the clerk properly accepted the affidavit for filing despite the seven-day requirement of R.C. 2701.03(B). See In re Disqualification of Squire , 110 Ohio St.3d 1202, 2005-Ohio-7157, 850 N.E.2d 709, ¶ 3 ; In re Disqualification of Adkins , 155 Ohio St.3d 1308, 2018-Ohio-5438, 122 N.E.3d 193, ¶ 8.
The merits of the affidavit
{¶ 4} The defendant is charged with one first-degree misdemeanor count of domestic violence. Ms. Starda claims that at the recent pretrial, she noted that her client had rejected the state's plea offer and that he wished to proceed to trial. According to Ms. Starda, the judge stated that in the event the parties continued to negotiate a plea deal, she would not agree to reducing the charge to a fourth-degree misdemeanor, because of the seriousness of the allegations, including that a child was involved. Ms. Starda believes that the judge's comment shows that she has predetermined the defendant's guilt and considered information outside the record because the complaint does not refer to a child as an alleged victim.
{¶ 5} For her part, Judge Von Allman acknowledges that she advised counsel that if settlement discussions continued, she would not be amenable to amending the charge to the lesser included offense of disorderly conduct, because of the allegations against the defendant, including that two children were present for the alleged incident. The judge made the comment, she notes, for the purpose of guiding any further negotiations.
{¶ 6} The comment does not require the judge's disqualification. "[A] judge's decision regarding whether to accept a plea bargain * * * is within his or her discretion and, in general, is not evidence of bias or prejudice." Adkins , 155 Ohio St.3d 1308, 2018-Ohio-5438, 122 N.E.3d 193, at ¶ 11. Here, Judge Von Allman merely stated terms that would not be acceptable to her if the parties continued to negotiate after the pretrial. As previously explained,
"a judge rarely hears preliminary aspects of a case without forming conditional opinions of the facts or law. These conditional opinions often assist the parties and their counsel in identifying and narrowing the issues in controversy and facilitate the settlement of cases prior to trial. However, the formation of these conditional opinions is not sufficient to counter the presumption of the judge's ability to render a fair decision based upon the evidence later presented at trial."
In re Disqualification of Weithman , 157 Ohio St.3d 1261, 2019-Ohio-4814, 137 N.E.3d 1232, ¶ 7, quoting In re Disqualification of Brown , 74 Ohio St.3d 1250, 1251, 657 N.E.2d 1353 (1993).
{¶ 7} Judge Von Allman's isolated comment does not mean that she is unable to keep an open mind at trial or that she has reached a fixed anticipatory judgment on any issue in the underlying case. See 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) (defining "bias or prejudice" as implying " ‘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’ ").
{¶ 8} Nor has Ms. Starda proved that Judge Von Allman relied on any extrajudicial information in making the comment. Judge Von Allman states that when determining whether to set bond, she heard and considered statements from the prosecutor, the defendant's prior counsel, the victim's advocate, and the alleged victim. According to the judge, the state alleged that children were present during the alleged incident. It is well settled that what a judge learns in her judicial capacity " ‘ "by way of pretrial proceedings * * * is a proper basis for judicial observations, and the use of such information is not the kind of matter that results in disqualification." ’ " In re Disqualification of Franks , 149 Ohio St.3d 1270, 2017-Ohio-321, 76 N.E.3d 1199, ¶ 5, quoting State v. D'Ambrosio, 67 Ohio St.3d 185, 188, 616 N.E.2d 909 (1993), quoting United States v. Bernstein, 533 F.2d 775, 785 (2d Cir.1976). A judge "is presumed to be capable of separating what may properly be considered from what may not be considered." In re Disqualification of Basinger , 135 Ohio St.3d 1293, 2013-Ohio-1613, 987 N.E.2d 687, ¶ 5. Here, Judge Von Allman states she can separate what may be relevant to setting bond or in a pretrial from the evidence required at trial to prove the elements of a criminal offense, and she affirms that she will decide the defendant's case based only on the evidence at trial. Nothing in the record suggests otherwise.
{¶ 9} "The statutory right to seek disqualification of a judge is an extraordinary remedy. * * * A judge is presumed to follow the law and not to be biased, and the appearance of bias or prejudice must be compelling to overcome these presumptions." In re Disqualification of George , 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been overcome in this case.
{¶ 10} The affidavit of disqualification is denied. Trial may proceed before Judge Von Allman.