[Cite as State v. Kidd, 2017-Ohio-6996.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2016-CA-87
                                                 :
 v.                                              :   Trial Court Case No. 2015-CR-207
                                                 :
 DAVID E. KIDD                                   :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                              Rendered on the 28th day of July, 2017.

                                            ...........

MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Fourth Floor, Springfield, Ohio
45502
      Attorney for Plaintiff-Appellee

DAVID E. KIDD, Inmate No. 721-836, Chillicothe Correctional Institution, P.O. Box 5500,
Chillicothe, Ohio 45601
        Defendant-Appellant-Pro Se

                                           .............




WELBAUM, J.
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       {¶ 1} Defendant-appellant, David E. Kidd, appeals from a decision of the Clark

County Court of Common Pleas overruling his petition for post-conviction relief without a

hearing. For the reasons outlined below, the judgment of the trial court will be affirmed.



                                 I. Facts and Course of Proceedings

       {¶ 2} On April 27, 2015, the Clark County Grand Jury indicted Kidd on one count

of trafficking in cocaine, a felony of the first degree in violation of R.C. 2925.03(A)(2); one

count of possession of cocaine, a felony of the first degree in violation of R.C. 2925.11(A);

and one count of having weapons under disability, a felony of the third degree in violation

of R.C. 2923.13(A)(3). The indictment also sought forfeiture of $496.00 and a Rossi .357

Magnum Revolver. Dkt. 1. Kidd pled not guilty to the charges in the indictment. Dkt.

4.

       {¶ 3} On July 9, 2015, Kidd filed a motion to suppress. Dkt. 14. On July 17,

2015, the trial court issued an Entry signed by Clark County Common Pleas Judge

Douglas M. Rastatter stating that the motion to suppress would be decided by another

judge, because “the subject of defendant’s motion is a search warrant that this judge

signed.” Dkt. 15. Clark County Common Pleas Judge Richard O’Neill was assigned to

decide Kidd’s motion to suppress.           Dkt. 16.      On September 15, 2015, Kidd

supplemented his motion to suppress. Dkt. 19. Following a hearing, the trial court

overruled the motion to suppress. Dkt. 22, 32.

       {¶ 4} On December 1, 2015, Kidd withdrew his not guilty plea and entered a plea

of guilty to an amended count of possession of cocaine, a first-degree felony, and one
                                                                                       -3-


count of having weapons under disability, a third-degree felony. The State dismissed

the one count of trafficking in cocaine and agreed to take no position regarding judicial

release at the sentencing hearing. The parties agreed to a six-year prison term on the

one count of possession of cocaine and a thirty-month prison term on the one count of

having weapons under disability, to be served consecutively, for a total prison term of

eight and one-half years. The trial court accepted Kidd’s guilty plea. Dkt. 25, 30.

       {¶ 5} On January 5, 2016, the trial court sentenced Kidd to six years in prison on

the one count of possession of cocaine and thirty months in prison on the one count of

having weapons under disability. The court ordered the sentences to run consecutively.

Dkt. 26, 31. Kidd did not appeal from his conviction and sentence.

       {¶ 6} On April 5, 2016, Kidd filed a petition for post-conviction relief titled

“DEFENDANT’S MOTION TO DISMISS JUDGMENT AND SENTENCES WHERE THE

DEFENDANT’S SHOWS THAT THE JUDGMENT AND SENTENCES WHERE [sic]

OBTAINED BY FRAUD UPON THE COURT WHICH INVALIDATES THE JUDGMENTS

AND SENTENCES AS VOID Pursuant to Ohio Revised Code § 2953.21.” Dkt. 35. On

April 13, 2016, Kidd filed an affidavit of disqualification of Judge Rastatter and Judge

O’Neill with the Clerk of Court for the Supreme Court pursuant to R.C. 2701.03. Dkt. 34,

36. On May 27, 2016, Supreme Court Chief Justice Maureen O’Connor denied Kidd’s

affidavit of disqualification. Dkt. 37.

       {¶ 7} On      August      5,       2016,   Kidd   filed   a    “MOTION         FOR

DISQUALIFICATION/RECUSAL JUDGE DOUGLAS M. RASTATTER AND JUDGE

RICHARD J. O’NEILL” in which Kidd requested that both named judges recuse

themselves from his case. Dkt. 38. On September 14, 2016, Kidd subsequently filed a
                                                                                       -4-


motion for summary judgment on his April 5, 2016 petition for post-conviction relief. Dkt.

39. On November 22, 2016, the trial court overruled Kidd’s petition for post-conviction

relief based on res judicata and overruled Kidd’s motion for summary judgment as moot.

Dkt. 44. Kidd now appeals from the trial court’s decision. Dkt. 45.



          II. The Claims Raised In Kidd’s Petition For Post-Conviction Relief Are Barred

                                         By Res Judicata

      {¶ 8} Kidd’s two assignments of error are interrelated and will be addressed

together. Kidd’s First Assignment of Error states:

             JUDGE RASTATTER’S FAILURE TO RECUSE HIMSELF UNDER

      THE CIRCUMSTANCES OF THIS CASE VIOLATED PETITIONER’S

      FOURTEENTH         AMENDMENT        DUE     PROCESS      RIGHTS      WHICH

      CONSTITUTES AN ABUSE OF DISCRETION.

      {¶ 9} Kidd’s Second Assignment of Error states:

             THE TRIAL COURT JUDGE ABUSED HIS DISCRETION WHEN HE

      DISMISSED APPELLANT’S POST CONVICTION PETITION WHICH

      INVOLVED FRAUD UPON THE COURT WHERE SAID JUDGE WAS A

      PARTY TO THE FRAUD.

      {¶ 10} Kidd contends that Judge Rastatter’s failure to recuse himself from Kidd’s

case violated Kidd’s due process rights. According to Kidd, Judge Rastatter should have

recused himself from the case, because he was the judge who signed the search warrant

that ultimately led to Kidd’s arrest and subsequent indictment. The State responds that

only the Chief Justice of the Ohio Supreme Court has the authority to disqualify a common
                                                                                            -5-


pleas court judge, Kidd waived the issue by not filing an affidavit of disqualification prior

to his conviction and sentence, and Kidd’s claims are either waived as a result of his guilty

plea or barred by res judicata due to his failure to raise them in a direct appeal.

       {¶ 11} Under R.C. 2953.21(C), “a trial court properly denies a defendant's petition

for postconviction relief without holding an evidentiary hearing where the petition, the

supporting affidavits, the documentary evidence, the files, and the records do not

demonstrate 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. An appellate court reviews a trial court’s denial of a

petition for post-conviction relief under an abuse-of-discretion standard.            State v.

Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 58.               An abuse of

discretion implies an arbitrary, unreasonable, unconscionable attitude on the part of the

trial court. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 12} The trial court overruled Kidd’s petition for post-conviction relief based on

res judicata, because “all of the issues defendant seeks to raise in his petition involve

matters which are contained in the record of this case, or matters which could have been

raised below or on a direct appeal.” Dkt. 44. In State v. Goldwire, 2d Dist. Montgomery

No. 20838, 2005-Ohio-5784, ¶ 11, we addressed the role res judicata plays in the analysis

of petitions for post-conviction relief:

               “The most significant restriction on Ohio's statutory procedure for

       post-conviction relief is that the doctrine of res judicata requires that the

       claim[s] presented in support of the petition represent error supported by

       evidence outside the record generated by the direct criminal proceedings.”
                                                                                           -6-

       State v. Monroe, Franklin App. No. 04AP-658, 2005-Ohio-5242. “Under

       the doctrine of res judicata, a final judgment of conviction bars the convicted

       defendant from raising and litigating in any proceeding, except an appeal

       from that judgment, any defense or any claimed lack of due process that

       was raised or could have been raised by the defendant at the trial which

       resulted in that judgment of conviction or on an appeal from that judgment.”

       State v. Perry (1967), 10 Ohio St.2d 175, 180, 226 N.E.2d 104. “Our

       statutes do not contemplate relitigation of those claims in post conviction

       proceedings where there are no allegations to show that they could not have

       been fully adjudicated by the judgment of conviction and an appeal

       therefrom.” Id. “To overcome the res judicata bar, the petitioner must

       produce new evidence that renders the judgment void or voidable, and

       show that he could not have appealed the claim based upon information

       contained in the original record.”       State v. Aldridge (1997), 120 Ohio

       App.3d 122, 151, 697 N.E.2d 228. “ ‘Res judicata also implicitly bars a

       petitioner from “repackaging” evidence or issues which either were, or could

       have been, raised in the context of the petitioner's trial or direct appeal.[’] ”

       Monroe.

       {¶ 13} While his petition for post-conviction relief was pending, Kidd filed an

affidavit of disqualification with the clerk of court for the Supreme Court seeking to

disqualify Judge Rastatter and Judge O’Neill from his case. He filed a copy of his petition

for post-conviction relief with his affidavit.     On May 27, 2016, the Supreme Court

overruled Kidd’s affidavit of disqualification, stating, in pertinent part (Dkt. 37):
                                                                                     -7-


       Defendant David Kidd has filed an affidavit with the clerk of this court

under R.C. 2701.03 seeking to disqualify Judge Douglas Rastatter and all

other Clark County judges from presiding over any further proceedings in

the above-captioned case, now pending on Kidd’s petition for post-

conviction relief.

       In his petition, Kidd claims that Judge Rastatter conspired with

prosecutors and other judges to commit fraud upon the court. Kidd also

asserts that Judge Rastatter is not “neutral and detached” because he

presided over prior proceedings involving Kidd and Kidd’s brother.

       ***

       For the reasons explained below, no basis has been established to

order the disqualification of Judge Rastatter.

       First, it is well established that an affidavit of disqualification must be

filed “as soon as possible after the incident giving rise to the claim of bias

and prejudice occurred,” and failure to do so may result in waiver of that

objection, especially when “the facts underlying the objection have been

known to the party for some time.” * * * Here, Kidd claims that Judge

Rastatter should be disqualified because the judge presided over prior

proceedings involving Kidd and his brother “dating back to 2008.” Yet Kidd

does not explain why he waited until after his conviction and sentence to file

his affidavit of disqualification, rather than when this case was initially

assigned to Judge Rastatter.       If Kidd believed that his previous cases

before Judge Rastatter required the judge’s removal from the underlying
                                                                                           -8-


      matter, Kidd should have timely sought disqualification.

             Second, even if Kidd had not waived his bias claims, his affidavit fails

      to set forth sufficient grounds for disqualification. “It is well settled that a

      judge who presided at trial will not be disqualified from hearing a petition for

      postconviction relief in the absence of evidence of bias, prejudice, or a

      disqualifying interest.” In re Disqualification of Nastoff, 134 Ohio St.3d

      1232, 2012-Ohio-6339, 983 N.E.2d 354, ¶ 9. The fact that Judge Rastatter

      previously presided over a case involving Kidd or his brother does not

      demonstrate that the judge was then or is now biased against Kidd. * * *

      {¶ 14} The arguments regarding disqualification and recusal raised in Kidd’s

petition for post-conviction relief are identical to the arguments considered by Chief

Justice O’Connor in ruling on Kidd’s affidavit of disqualification. Therefore, the claims

raised in Kidd’s petition for post-conviction relief are barred by res judicata. State v.

Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414, ¶ 35; Goldwire at ¶ 11.

Further, we note that Judge Rastatter did in fact recuse himself from ruling on Kidd’s

motion to suppress, acknowledging that he had signed the original warrant. 1             Kidd

subsequently made the decision to plead guilty and agreed to a prison sentence of eight

and one-half years, which the trial court imposed.

      {¶ 15} Based on the record before us, we conclude that the trial court did not abuse

its discretion in overruling Kidd’s petition for post-conviction relief without a hearing.


1 The Supreme Court has held that the fact that a trial judge may have to rule upon the
validity of a warrant that the trial judge previously authorized does not warrant
disqualification of the judge absent evidence that the judge “will consider the evidence in
any manner other than fairly and impartially.” In re Disqualification of Basinger, 77 Ohio
St.3d 1237, 1237, 674 N.E.2d 351 (1996).
                                                                                      -9-


Kidd’s assignments of error are overruled.



                                             III. Conclusion

       {¶ 16} Both of Kidd’s assignments of error having been overruled, the judgment of

the trial court is affirmed.



                                    .............



HALL, P.J. and FROELICH, J., concur.



Copies mailed to:

Megan M. Farley
David E. Kidd
Hon. Douglas M. Rastatter
