[Cite as State v. Cody, 2011-Ohio-2289.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95753




                                     STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                      TYRONE CODY
                                                    DEFENDANT-APPELLANT




                                           JUDGMENT:
                                           DISMISSED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-516633

        BEFORE:            Rocco, J., Celebrezze, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: May 12, 2011
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                                      -i-

FOR APPELLANT

Tyrone Cody, pro se
Inmate No. 571-526
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:    Edward H. Kraus
      Assistant County Prosecutor
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113



KENNETH A. ROCCO, J.:

      {¶ 1} Defendant-appellant Tyrone Cody, proceeding pro se, appeals

from the most recent trial court order that denied his fifth motion for judicial

release, which was accompanied by a “motion for recusal.”

      {¶ 2} Cody presents two assignments of error.       He argues the trial

court acted improperly in failing to recuse itself from conducting further

proceedings in this case.     He further argues the trial court abused its
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discretion in denying his fifth motion for judicial release with the notation he

was “not to further file, based on these issues.”

         {¶ 3} This court lacks jurisdiction to consider either of Cody’s

assignments of error. Therefore, his appeal is dismissed.

         {¶ 4} In view of the necessity of dismissal, the underlying facts of this

case will be discussed only briefly.      The App.R. 9(A) record reveals Cody

originally was indicted in October 2008.            He was charged with many

co-defendants on numerous counts pertaining to an alleged mortgage fraud

scheme.

         {¶ 5} In June 2009, Cody entered guilty pleas to twelve counts in order

to obtain the dismissal of the others.        The trial court called his case for

sentencing on July 16, 2009, and imposed a prison term that totaled two

years. The next day, the order of Cody’s sentence was filed with the court

clerk.

         {¶ 6} The record reflects that, beginning in early 2010, Cody filed

successive motions pursuant to R.C. 2929.20 seeking judicial release. The

trial court denied each. Cody filed his motions on the following dates: March

29, 2010; April 14, 2010; April 20, 2010; June 7, 2010; and, finally for

purposes of this appeal, August 11, 2010.
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      {¶ 7} The latter motion also was accompanied by a “motion for recusal.”

 Cody alleged therein that his “undersigned counsel” was “affiliated with the

law firm” that represented the trial judge in another matter.

      {¶ 8} In his motions for judicial release, Cody generally argued that his

convictions were the result of circumstances not likely to reoccur, that

substantial grounds existed tending to excuse his convictions, and that he had

responded to correctional treatment.        The trial court denied his motions

within approximately one week of their filing dates without opinion.

      {¶ 9} Cody filed his appeal in this case from the trial court’s August 26,

2010 judgment entry, which states:

      {¶ 10} “Defendant’s motion for judicial release is denied.     Defendant

has now filed five (5) motions for judicial release. This case is concluded.

There are no substantive remaining issues. Defendant is not to further file,

based on these issues.”

      {¶ 11} Cody presents the following two assignments of error.

      {¶ 12} “I.   The trial court erred and abused its discretion when

it   arbitrarily,     improperly,    and/or       with    bias   denied      the

defendant-appellant’s       motion     for      recusal    in    violation    of

defendant-appellant’s constitutional rights, and accordingly, the
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denial must be vacated and remanded for further proceedings, and

the trial court must recuse itself.

      {¶ 13} “II.   The trial court erred and abused its discretion when

it ordered, in effect, the preclusion of the defendant-appellant from

filing any subsequent motions for judicial release, which violated the

defendant-appellant’s rights and was not in compliance with R.C.

2929.20, and, accordingly, is contrary to law and void, and, therefore,

must be vacated.”

      {¶ 14} Since this court lacks jurisdiction to consider either of Cody’s

assignments of error, they cannot be addressed.

      {¶ 15} The following is relevant to the argument Cody presents in his

first assignment of error:

      {¶ 16} “The Chief Justice of the Ohio Supreme Court, or his designee,

has exclusive jurisdiction to determine a claim that a common pleas judge is

biased or prejudiced.    Section 5(C), Article IV, Ohio Constitution.      R.C.

2701.03 provides the exclusive means by which a litigant may claim that a

common pleas court judge is biased and prejudiced. State ex rel. Pratt v.

Weygandt (1956), 164 Ohio St. 463, 132 N.E.2d 191, paragraph three of the

syllabus; Jones v. Billingham (1995), 105 Ohio App.3d 8, 11, 663 N.E.2d 657.

A litigant who believes that the trial judge should be disqualified must file an
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affidavit of bias or prejudice with the clerk of the supreme court pursuant to

R.C. 2701.03. Id. Since only the Chief Justice or her designee may hear a

disqualification matter, a court of appeals is without authority to void the

judgment of the trial court because of bias or prejudice of the judge. Beer v.

Griffith (1978), 54 Ohio St.2d 440, 441-42, 377 N.E.2d 775.” (Emphasis

added.)   State v. Mackey (Feb. 14, 2000), Warren App. No. CA99-06-065.

See, also, State v. Bacon, Cuyahoga App. No. 85475, 2005-Ohio-6238, ¶66.

      {¶ 17} If Cody believed the trial judge should be removed from his case

due to bias or prejudice against him, his exclusive remedy was to file an

affidavit of disqualification pursuant to R.C. 2701.03.        This court lacks

jurisdiction to decide the merits of Cody’s first assignment of error.

      {¶ 18} Likewise, this court cannot determine the merits of Cody’s second

assignment of error.

      {¶ 19} Cody argues therein that the trial court abused its discretion in

denying his fifth motion for judicial release. However, “it is well-established

that the denial of a motion for judicial release is not a final appealable order.

State v. Masko, Trumbull App. No. 2004-T-0070, 2004-Ohio-5297, ¶2, citing

State v. Singh (2001), 146 Ohio App.3d 38[, 764 N.E.2d 1096].”           State v.

Bennett, Muskingum App. No. CT2005-0009, 2006-Ohio-2812, ¶15. See, also,

State v. Hanes, Coshocton App. No. 2006-CA-013, 2007-Ohio-3764, ¶7; Rone v.
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State, Ashtabula App. No. 2005-A-0075, 2006-Ohio-1268, ¶5, citing State v.

Coffman, 91 Ohio St.3d 125, 2001-Ohio-273, 742 N.E.2d 644.

      {¶ 20} Since the trial court’s denial of Cody’s motion for judicial release

does not constitute a final order, this court also lacks jurisdiction to consider

this argument.

      Appeal dismissed.

      It is ordered that appellee recover from appellant costs herein taxed.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



________________________________
KENNETH A. ROCCO, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
