Opinion
No. 19-AP-139
12-18-2019
IN RE DISQUALIFICATION OF O'DONNELL. The State of Ohio v. Polizzi.
{¶ 1} Mark R. DeVan, counsel for the defendant, has filed an affidavit with the clerk of this court pursuant to R.C. 2701.03 seeking to disqualify Judge John P. O'Donnell from the above-referenced consolidated cases, which are now pending for resentencing.
{¶ 2} Judge O'Donnell originally sentenced the defendant to maximum prison sentences, to be served consecutively, for each of the eight offenses to which he entered a guilty plea. The Eleventh District Court of Appeals, however, determined that the record did not support imposition of consecutive sentences and therefore vacated the defendant's sentence and remanded the matters for resentencing. See State v. Polizzi , 11th Dist. Lake Nos. 2018-L-063 and 2018-L-064, 2019-Ohio-2505, 2019 WL 2579351.
{¶ 3} In his affidavit, Mr. DeVan avers that Judge O'Donnell's original findings and his various comments at the defendant's sentencing hearing demonstrate bias against the defendant and require a new judge for resentencing. Mr. DeVan also alleges that when imposing the defendant's sentence, Judge O'Donnell improperly relied on extrajudicial information and allowed his personal opinions to affect his impartiality. To support his request for disqualification, Mr. DeVan submitted a transcript of the initial sentencing hearing.
{¶ 4} Judge O'Donnell filed a response to the affidavit and denies any bias against the defendant. The judge believes that neither his original findings nor his sentencing comments require his removal, and the judge affirms that he will properly consider the Eleventh District's decision in conducting all further proceedings.
{¶ 5} For the reasons explained below, no basis has been established to order the disqualification of Judge O'Donnell.
{¶ 6} First, "[a] trial judge's opinions of law, even if erroneous, are not by themselves evidence of bias or prejudice," and "a judge may preside over the retrial of a case even if that judge's rulings of law were reversed on appeal." In re Disqualification of Kimmel , 36 Ohio St.3d 602, 522 N.E.2d 456 (1987). In addition, "[a]bsent evidence of bias or prejudice, an affidavit of disqualification cannot be used to remove a judge from resentencing a defendant solely because the judge previously imposed the maximum sentence permitted by law." In re Disqualification of Brown , 139 Ohio St.3d 1224, 2014-Ohio-2154, 11 N.E.3d 275, ¶ 13. Here, the Eleventh District found that the record did not support imposition of consecutive sentences and that Judge O'Donnell's original aggregate sentence would demean the seriousness of other more violent crimes. Polizzi , 2019-Ohio-2505, at ¶ 35-36. The appellate decision, however, does not suggest that the sentence was the product of bias against the defendant. Therefore, neither the appellate court's decision itself nor the fact that Judge O'Donnell imposed maximum, consecutive sentences support the judge's removal.
{¶ 7} Second, Judge O'Donnell's sentencing comments do not warrant his disqualification. "Because a sentencing judge must ordinarily explain the reasons for imposing a sentence, judicial comments during sentencing, even if disapproving, critical, or heavy-handed, do not typically give rise to a cognizable basis for disqualification." In re Disqualification of Winkler , 135 Ohio St.3d 1271, 2013-Ohio-890, 986 N.E.2d 996, ¶ 9. Nevertheless, in deciding previous affidavits of disqualification, the chief justice has explained that "a new judge should be assigned to hear a case on remand if the original trial judge conducted himself or herself in a way that created an appearance that he or she is unable to fairly and impartially complete the case." In re Disqualification of Sutula , 149 Ohio St.3d 1219, 2016-Ohio-8599, 74 N.E.3d 449, ¶ 9 (disqualifying a judge from resentencing a defendant based on the judge's comments and conduct at the initial sentencing, including her apparent reliance on extrajudicial sources to justify her sentence); see also Winkler at ¶ 9, 11 (disqualifying a judge from resentencing a defendant when the judge's comments at the original sentencing might reasonably cause an objective observer to question whether the judge would be able to fairly weigh any arguments that the defendant may offer on resentencing); Columbus v. Hayes , 68 Ohio App.3d 184, 188-189, 587 N.E.2d 939 (10th Dist.1990) (remanding for further proceedings before a different municipal court judge when the original sentencing judge, after being reversed, had made it clear that he did not intend to follow the mandate of the appeals court by declaring that he would impose the same sentence as before, even if he were to be reversed ten times).
{¶ 8} A review of the sentencing transcript here does not establish that Judge O'Donnell is unable to fairly resentence the defendant in accordance with the Eleventh District's decision. "It is not unusual for trial judges to use strong language when sentencing defendants who have been convicted of sexual crimes against children." In re Disqualification of Zmuda , 149 Ohio St.3d 1241, 2017-Ohio-317, 75 N.E.3d 1255, ¶ 8. Judge O'Donnell's comments about the defendant were not so personal that they establish a sense of hostility or animosity toward the defendant. And although Judge O'Donnell admittedly referred to an unrelated newspaper article during sentencing, the isolated comment does not establish that the judge should be removed for relying on an improper extrajudicial source, especially when considered in context with his other comments.
{¶ 9} "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. The cases may proceed before Judge O'Donnell.