[Cite as In re Disqualification of Winkler, 135 Ohio St.3d 1271, 2013-Ohio-890.]




                       IN RE DISQUALIFICATION OF WINKLER.
                          THE STATE OF OHIO v. CAMPBELL.
         [Cite as In re Disqualification of Winkler, 135 Ohio St.3d 1271,
                                     2013-Ohio-890.]
Judges—Affidavit of disqualification—R.C. 2701.03—Judge’s remarks at affiant’s
        sentencing hearing conveyed appearance of bias or prejudice—
        Reasonable, objective observer might conclude that judge was hostile to
        affiant—Affidavit granted—Judge disqualified from resentencing.
                    (No. 12-AP-136—Decided February 6, 2013.)
ON AFFIDAVIT OF DISQUALIFICATION in Hamilton County Court of Common Pleas
                                  Case No. B-0808031.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} William A. Campbell, defendant in the underlying proceeding, has
filed an affidavit with the clerk of this court under R.C. 2701.03 seeking to
disqualify Judge Ralph E. Winkler from presiding over any further proceedings in
case No. B-0808031, pending for a resentencing hearing in the Court of Common
Pleas of Hamilton County.
        {¶ 2} Campbell alleges that Judge Winkler should be disqualified from
resentencing him because Judge Winkler made “biased and prejudiced”
comments about Campbell at his initial sentencing. In addition, Campbell claims
that Judge Winkler voluntarily recused himself from another proceeding
involving Campbell, which demonstrates that the judge “felt he was biased and
prejudiced toward” Campbell. Campbell further asserts that Judge Winkler has
put him through “undue hardship” by failing to timely and properly rule on his
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postconviction petition and ruling only after Campbell had filed a complaint for a
writ of mandamus against the judge.
       {¶ 3} Judge Winkler has responded in writing to the concerns raised in
Campbell’s affidavit.    Judge Winkler denies any bias or prejudice against
Campbell and explains that all of his comments about Campbell were based on
evidence in the trial court record and presentence-investigation (“PSI”) report. As
the trial court judge, Judge Winkler believes that he is uniquely qualified to
resentence Campbell and that any newly assigned judge would be required to read
the court record to properly resentence him. Judge Winkler acknowledges that he
recused himself from another proceeding involving Campbell, but he claims that
he did so “out of fairness” and “to give [Campbell] a fresh start with a different
Judge.” Finally, Judge Winkler believes that Campbell is biased and prejudiced
against him and the justice system and that Campbell treated him and court staff
with “disdain and a lack of respect” during the trial court proceedings.
       {¶ 4} Campbell’s affidavit is well taken—not because Campbell has
proven that Judge Winkler is personally biased or prejudiced against him, but
because the circumstances here indicate that the judge’s removal is necessary to
“avoid even an appearance of bias, prejudice, or impropriety, and to ensure the
parties, their counsel, and the public the unquestioned neutrality of an impartial
judge.” In re Disqualification of Floyd, 101 Ohio St.3d 1215, 2003-Ohio-7354,
803 N.E.2d 816, ¶ 10.
                                   Background
       {¶ 5} In 2009, a jury convicted Campbell of operating a vehicle under
the influence of alcohol (“OVI”) and two counts of aggravated vehicular
homicide: one count for OVI-based aggravated vehicular homicide and the other
count for recklessness-based aggravated vehicular homicide. The jury acquitted
Campbell on a charge of failing to comply with an order or signal of a police




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officer. Judge Winkler imposed consecutive prison terms for each offense. See
State v. Campbell, 1st Dist. No. C-090875, 2012-Ohio-4231, 978 N.E.2d 970, ¶ 2.
       {¶ 6} At sentencing, Judge Winkler made the following comments:


              I have had many jury trials over the years, and I have seen
       many jury trials worked in the courthouse since 1983. I would
       have to say that none of those trials – you were the most guilty
       person I have ever seen, so you are free to say you are not guilty.
       Ludicrous.
              ***
              * * * The evidence indicated, pointed toward your total
       guilt on all the charges that you were found guilty of and actually
       pointed to your guilt on the charge that you were found not guilty
       of. So you were probably guilty of the count that the jury let you
       go on from the evidence I heard.
              ***
              He has offenses of violence and a plethora of prior
       convictions showing he isn’t just a drunk driver, that he is a mean
       person that assaults people and beats people up and bothers people
       and he has been pretty much a pestilence on society his whole life.
              From what I can tell, he hasn’t done much more than take
       up space and breathe oxygen. I can’t find one good thing he has
       done in the PSI or one thing in his favor as a human being.
              So with that in mind, I will pass a sentence based upon his
       life’s work as a criminal, and I will pass a sentence based upon
       how he behaved in this case.           He is a poster boy for DUI
       defendants, as far as I’m concerned.         And people like Mr.
       Campbell prove to me for organizations like Mothers Against



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        Drunk Driving, he, through his life, has been a road terrorist who
        can’t stop drinking and driving and hurting people.
                 * * * [T]his case calls for the maximum sentence possible
        under the law and I will pass gladly that sentence upon the
        defendant at this time.
                 ***
                 The defendant must serve his actual term of 28 years in
        prison and not leave a day earlier than 28 years.


        {¶ 7} Campbell unsuccessfully challenged his convictions in direct
appeals to the appeals court and this court. But in February 2012, the appeals
court granted Campbell’s motion to reopen his direct appeal, and in September
2012, the appeals court vacated his sentences for the two counts of aggravated
vehicular homicide, holding that they were allied offenses of similar import. The
prosecution conceded that the trial court had erred in sentencing Campbell for the
two charges.1      The appeals court remanded the case to Judge Winkler for
resentencing, which he has not yet scheduled.
                                          Waiver
        {¶ 8} In deciding previous affidavit-of-disqualification cases, the chief
justice has explained that a party may be considered to have waived its objection
to the judge when “the objection is not raised in a timely fashion and the facts
underlying the objection have been known to the party for some time.” In re
Disqualification of O’Grady, 77 Ohio St.3d 1240, 1241, 674 N.E.2d 353 (1996).
Here, Campbell knew about Judge Winkler’s comments since his 2009 sentencing
hearing, but he did not file the affidavit of disqualification until December 2012.


1. The appeals court rejected Campbell’s additional claim that the OVI was an allied offense of
either aggravated-vehicular-homicide conviction. Campbell, 2012-Ohio-4231, 978 N.E.2d 970, at
¶ 15.




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However, during that time period, Campbell’s various appeals were pending in
the appeals court and this court, and the appeals court did not vacate his sentences
and remand the matter for resentencing until September 2012. Thus, despite the
fact that some of the alleged prejudicial conduct occurred years ago, Campbell
has not waived his right to file this affidavit because he has only recently learned
that the matter has returned to Judge Winkler for resentencing.
                                     Analysis
       {¶ 9} 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. See Flamm, Judicial Disqualification, Section 16.4, 450-463 (2d
Ed.2007). As other courts have explained, “ ‘[i]t is the court’s prerogative, if not
its duty, to assess the defendant’s character and crimes at sentencing, after * * *
guilt has been decided.’ ” (Brackets and ellipsis sic.) Connecticut v. Rizzo, 303
Conn. 71, 128-129, 31 A.3d 1094 (2011), quoting United States v. Pearson, 203
F.3d 1243, 1278 (10th Cir.2000). “Furthermore, ‘to a considerable extent a
sentencing judge is the embodiment of public condemnation and * * * [a]s the
community’s spokesperson * * * can lecture a defendant as a lesson to that
defendant and as a deterrent to others.’ ” (Brackets and ellipses sic.) Id. at 129,
quoting United States v. Bakker, 925 F.2d 728, 740 (4th Cir.1991). As the United
States Supreme Court has explained:


               The judge who presides at trial may, upon completion of
       the evidence, be exceedingly ill disposed towards the defendant,
       who has been shown to be a thoroughly reprehensible person. But
       the judge is not thereby recusable for bias or prejudice, since his
       knowledge and the opinion it produced were properly and
       necessarily acquired in the course of the proceedings, and are



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          indeed sometimes (as in a bench trial) necessary to completion of
          the judge’s task.


Liteky v. United States, 510 U.S. 540, 550-551, 114 S.Ct. 1147, 127 L.Ed.2d 474
(1994).     Accordingly, a trial judge’s harsh comments to a defendant during
sentencing will not ordinarily lead to disqualification.
          {¶ 10} Nonetheless, in previous affidavit-of-disqualification proceedings
under R.C. 2701.03, the chief justice has also explained that if a judge’s words or
actions convey the impression that the judge has developed a “ ‘hostile feeling or
spirit of ill will,’ ” or if the judge has reached a “ ‘fixed anticipatory judgment’ ”
that will prevent the judge from hearing the case with “ ‘ an open state of mind
* * * governed by the law and the facts,’ ” then the judge should not remain on
the case. In re Disqualification of Hoover, 113 Ohio St.3d 1233, 2006-Ohio-
7234, 863 N.E.2d 634, ¶ 7, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St.
463, 469, 132 N.E.2d 191 (1956) (setting forth the definition of bias and
prejudice).     Further, Jud.Cond.R. 2.8(B) mandates that judges be “patient,
dignified, and courteous” towards litigants. Thus, a judge, “notwithstanding the
conduct of litigants or counsel, has an ethical obligation to conduct himself or
herself in a courteous and dignified manner that does not convey the appearance
of bias or prejudice toward litigants or their attorneys.” In re Disqualification of
Cleary, 88 Ohio St.3d 1220, 1222-1223, 723 N.E.2d 1106 (2000), citing Canon
3(B)(4) and (5) of the former Code of Judicial Conduct (superseded by Canon 2,
effective Mar. 1, 2009).
          {¶ 11} Here, Judge Winkler’s comments have crossed the line between
acceptable sentencing comments about a defendant’s character and comments that
convey the appearance of bias or prejudice. “The proper test for determining
whether a judge’s participation in a case presents an appearance of impropriety
is * * * an objective one. A judge should step aside or be removed if a reasonable




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and objective observer would harbor serious doubts about the judge’s
impartiality.” In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-
7359, 884 N.E.2d 1082, ¶ 8. Judge Winker’s descriptions of Campbell might
reasonably cause an objective observer to question whether he has developed
hostile feelings toward Campbell and whether he may be able to weigh fairly and
impartially any arguments Campbell may offer on resentencing. Similarly, an
objective observer who has read the affidavit and the judge’s response might
reasonably question whether Judge Winkler can now set aside his seemingly fixed
views about Campbell and resentence him according to the law and facts.
       {¶ 12} In addition, other unique facts in the record support the conclusion
that an appearance of impropriety exists. For example, Judge Winkler’s response
to the affidavit shows no recognition that a reasonable person may view his
comments as undignified or derogatory. Had Judge Winkler acknowledged that
his statements were harsh, but still affirmed his ability to impartially resentence
Campbell, the outcome here may have been different. Instead, Judge Winkler’s
response suggests that he is not able to view his conduct objectively. In addition,
Judge Winkler failed to respond to Campbell’s allegations regarding the judge’s
refusal to timely and properly rule on Campbell’s postconviction petition. See,
e.g., In re Disqualification of Floyd, 101 Ohio St.3d 1215, 2003-Ohio-7354, 803
N.E.2d 816, ¶ 9 (“the statements sworn to by the affiant, and unchallenged by the
judge, could suggest to a reasonable person the appearance of impropriety”).
       {¶ 13} Accordingly, on this record, Judge Winkler’s impartiality could
reasonably be questioned and disqualification is necessary to avoid an appearance
of impropriety. The chief justice has followed the same course in similar cases.
See, e.g., In re Disqualification of Crawford, 110 Ohio St.3d 1223, 2005-Ohio-
7156, 850 N.E.2d 724, ¶ 5 (a judge’s “vitriolic language,” among other things,
might “cause the reasonable and uninvolved observer to question the judge’s
ability to preside fairly and impartially over further trial proceedings”); In re



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Disqualification of Hoover, 113 Ohio St.3d 1233, 2006-Ohio-7234, 863 N.E.2d
634, ¶ 8 (“The judge’s own words might very well cause a reasonable and
objective observer to wonder how and whether a judge who could pen such a
lengthy diatribe against an attorney could later sit fairly and impartially on cases
involving the same attorney”); In re Disqualification of Sheward, 77 Ohio St.3d
1258, 1260, 674 N.E.2d 365 (1996) (when comments by judge reflected no actual
bias or prejudice but could nonetheless “suggest to a reasonable person the
appearance of prejudice,” judge was disqualified to “ensure the parties’ absolute
confidence in the fairness” of the proceedings); In re Disqualification of
Ruehlman, 74 Ohio St.3d 1229, 1230, 657 N.E.2d 1339 (1991) (a judge’s
disqualification ordered “in the interest of avoiding even the appearance of any
bias or prejudice”); In re Disqualification of Maschari, 88 Ohio St.3d 1212, 1213,
723 N.E.2d 1101 (1999) (a unique “combination of factors” cited by the affiant is
sufficient to create an appearance of impropriety mandating disqualification).
       {¶ 14} It is important to reiterate that Campbell has not established that
Judge Winkler has an actual, personal bias against him, and reassignment of the
case to a new judge does not imply that any unethical conduct occurred.
However, the nature and extent of Judge Winkler’s comments, along with the
other facts in the record, make it necessary to appoint a different trial judge to
conduct the new sentencing hearing. As this court has long stated, “[i]t is of vital
importance that the litigant should believe that he will have a fair trial.” State ex
rel. Turner v. Marshall, 123 Ohio St. 586, 587, 176 N.E. 454 (1931). And while
Judge Winkler is correct in stating that any newly assigned judge will be required
to review the trial court record to properly sentence Campbell, the gain in
preserving   the   appearance     of   propriety   outweighs    the   countervailing
considerations of duplicated effort. See United States v. Navarro-Flores, 628
F.2d 1178, 1185 (9th Cir.1980).




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       {¶ 15} For the reasons stated above, the affidavit of disqualification is
granted, and it is ordered that Judge Ralph E. Winkler participate no further in the
underlying proceeding. The case is returned to the administrative judge of the
Hamilton County Court of Common Pleas for reassignment.
       {¶ 16} In addition, in accordance with R.C. 2951.03(D) and Sup.R. 45(E),
it is ordered that Campbell’s presentence-investigation report, which was attached
to Judge Winkler’s response to the affidavit of disqualification, shall be placed
under seal by the clerk of this court.
                             ______________________




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