[Cite as State v. Sankey, 2018-Ohio-2677.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                  :       OPINION

                  Plaintiff-Appellee,            :
                                                         CASE NO. 2017-A-0080
         - vs -                                  :

 ROBERTO SANKEY a.k.a.,                          :
 ROBBIE ROYCE SANKEY,
                                                 :
                  Defendant-Appellant.


 Civil Appeal from the Ashtabula County Court of Common Pleas, Case No. 2016 CR
 00195.

 Judgment: Affirmed.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
 44047 (For Plaintiff-Appellee).

 Roberto Sankey, pro se, PID: A693-244, Trumbull Correctional Institution, 5701 Burnett
 Road, Leavittsburg, OH 44430 (Defendant-Appellant).



THOMAS R. WRIGHT, P.J.



        {¶1}      Appellant, Roberto Sankey, appeals the trial court’s October 31, 2017

decision overruling his postconviction motions. We affirm.

        {¶2}      In November of 2016, Sankey pleaded guilty to telecommunications fraud,

passing bad checks, grand theft with a specification, and attempted grand theft. He was
represented by counsel and was sentenced to a total of five years in prison. He did not

appeal.

       {¶3}   In May of 2017, Sankey filed a “sentencing reconsideration” letter with the

court requesting a “meeting” to discuss his case, and in June of 2017, he filed a petition

to vacate his sentence arguing that his sentence is disparate from his codefendant’s and

that the trial court judge should recuse herself due to her association with his codefendant.

In August of 2017, Sankey filed an affidavit in support in which he avers that the judge

purchased “knock-off” purses from his codefendant’s wife and that his codefendant

frequented her family’s restaurant. He claims that this “relationship” was the reason his

codefendant received a lesser sentence. The Supreme Court, however, denied the

affidavit of disqualification that Sankey filed.

       {¶4}   The trial court subsequently overruled his request for a meeting, noting that

the case was closed. It also overruled his petition for postconviction relief that sought to

set aside his sentence. It rejected Sankey’s claim that he should have received no more

prison time than his codefendant explaining that Sankey pleaded guilty to more serious

charges, had more than one criminal case pending against him, and had a criminal

history. The trial court also rejected Sankey’s claim that the trial court judge was biased,

stating that the allegations were untrue and lacked any factual support.

       {¶5}   Sankey’s first of two assigned error asserts:

       {¶6}   “Whether or not the court erred in the disparity in sentence between the

defendant and co-defendant.”

       {¶7}   Appellate courts should uphold a trial court's decision granting or denying a

postconviction petition absent an abuse of discretion. State v. Gondor, 112 Ohio St.3d




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377, 2006-Ohio-6679, 860 N.E.2d 77, ¶1. An abuse of discretion is a term of art that

means the trial court’s judgment does not comport with reason or the record. Ivancic v.

Enos, 11th Dist. Lake No. 2011-L-050, 2012-Ohio-3639, 978 N.E.2d 927, ¶70, citing State

v. Underwood, 11th Dist. No. 2008-L-113, 2009-Ohio-2089, 2009 WL 1177050, ¶30.

       {¶8}   “When an appellate court is reviewing a pure issue of law, ‘the mere fact

that the reviewing court would decide the issue differently is enough to find error * * *. By

contrast, where the issue on review has been confined to the discretion of the trial court,

the mere fact that the reviewing court would have reached a different result is not enough,

without more, to find error.’” Ivancic quoting State v. Beechler, 2d Dist. No. 09-CA-54,

2010-Ohio-1900, 2010 WL 1731784, ¶67.

       {¶9}   Here, Sankey first argues that his sentence lacks parity with his

codefendant’s sentence and that he should have received less prison time because he

cooperated with the FBI. He also asserts that the trial court judge acted impartially

because his codefendant’s wife sold knock-off designer purses to the judge and

frequented her family’s restaurant. Thus, he argues these errors collectively require

resentencing.

       {¶10} As for his parity in sentencing argument, “[t]here is no requirement that co-

defendants receive equal sentences[,]” and as such, a defendant cannot challenge his

sentence because it is disproportionate from that of his codefendant’s. State v. Lloyd,

11th Dist. Lake No. 2002-L-069, 2003-Ohio-6417, ¶21.            Instead, trial courts have

discretion in imposing a prison term within the statutory range and are required to assess

the applicable sentencing factors upon imposing a defendant’s sentence.                 R.C.

2929.12(A). Appellate courts then can review “whether the sentence is proportionate to




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the severity of the offense committed.” State v. Gibson, 8th Dist. Cuyahoga No. 98725,

2013-Ohio-4372, ¶76.

       {¶11} Sankey does not argue that his sentence is not within the applicable range

or that the trial court failed to consider applicable sentencing factors. Notwithstanding,

any challenge in this regard would be barred by res judicata because a defendant may

not file a motion for postconviction relief asserting errors that could have been raised in a

direct appeal. State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169 (1982).

       {¶12} Moreover, Sankey raised this issue in his sentencing memorandum, which

was filed before he was sentenced, claiming he should have received less time than his

codefendant because he cooperated with the FBI.           And although his codefendant’s

sentence, record, and criminal history are not before us, the trial court’s explanation for

imposing a greater sentence in Sankey’s case comports with reason and the record. The

trial court explains that he was facing criminal charges in another case, had a prior

criminal record, and pleaded guilty to more serious charges than his codefendant. These

are factors a trial court is to consider when fashioning a criminal sentence.            R.C.

2929.12(A).

       {¶13} As for Sankey’s argument that the trial court judge should have recused

herself due to bias, the Supreme Court rejected his affidavit of disqualification finding that

he failed to present sufficient grounds for the judge’s disqualification.

       {¶14} As cause for his complaint for recusal filed in the Supreme Court, Sankey

states the same reasons he argues now, i.e., the trial court judge’s ongoing friendship

with his codefendant and his wife resulted in his codefendant receiving a more lenient

sentence.




                                              4
       {¶15} R.C. 2701.03 provides the exclusive means for a party to secure the

removal of a judge. State v. Russell, 2nd Dist. Clark No. 2016-CA-48, 2017-Ohio-7198,

95 N.E.3d 1142, ¶15-16, citing State v. Qualls, 2d Dist. Montgomery No. 26423, 2015-

Ohio-2182, 2015 WL 3540685, ¶7-8; State v. Hussein, 10th Dist. Franklin No. 15AP-1093,

2017-Ohio-5519, ¶9, appeal not allowed, 151 Ohio St.3d 1511, 2018-Ohio-365, 90

N.E.3d 950.

       {¶16} “‘A court of appeals does not have authority to rule on the disqualification of

the trial judge or to void a judgment of the trial court on that basis.’” Id.; State v. Haywood,

9th Dist. Summit No. 28040, 2017-Ohio-8299, ¶20, appeal not allowed, 152 Ohio St.3d

1465, 2018-Ohio-1795, 97 N.E.3d 501.

       {¶17} Thus, because Sankey raised this precise issue to the Supreme Court, and

it denied his affidavit of disqualification explaining that he “failed to establish sufficient

grounds for the judge’s disqualification[,]” we lack authority to rule on this issue.

Regardless, we note that Sankey raises this alleged bias to demonstrate that his

codefendant received a more lenient sentence. Sankey, however, fails to demonstrate

how the judge’s alleged relationship with his codefendant negatively impacted the

sentence he received.

       {¶18} Sankey’s first assignment of error lacks merit in its entirety.

       {¶19} His second assigned error asserts:

       {¶20} “Whether or not the court erred in self-judgment and vindication where the

court fails to allow the defendant to substantiate his facts at a hearing?”

       {¶21} Here Sankey contends the trial court erred in summarily denying his

postconviction motions without holding a hearing.




                                               5
       {¶22} As the trial court found, however, an evidentiary hearing is not required

under the statute when the petition, affidavits, evidence, and the record do not show “that

petitioner set forth sufficient operative facts to establish substantive grounds for relief.”

State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999) paragraph two of the

syllabus; State v. Jackson, 64 Ohio St.2d 107, 110, 413 N.E.2d 819 (1980).

       {¶23} “Substantive grounds for relief exist where there was a denial or

infringement of the petitioner's constitutional rights of a magnitude sufficient to render the

judgment void or voidable. See R.C. 2953.21(A); Calhoun at 282-283, 714 N.E.2d 905.”

State v. McKelton, 12th Dist. Butler No. CA2015-10-183, 2016-Ohio-3216, 55 N.E.3d 26,

¶9, appeal not allowed, 147 Ohio St.3d 1505, 2017-Ohio-261, 67 N.E.3d 823.

       {¶24} In light of our finding that Sankey’s postconviction motions do not set forth

meritorious claims for relief, an evidentiary hearing was not required. Thus, this assigned

error lacks merit.

       {¶25} The trial court’s decision is affirmed.



CYNTHIA WESTCOTT RICE, J.,

TIMOTHY P. CANNON, J.,

concurs.




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