[Cite as State v. Cook, 2014-Ohio-3165.]




           IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :       C.A. CASE NO.     2013 CA 22

v.                                                   :       T.C. NO.     07CR107

JERRY H. COOK                                        :        (Criminal appeal from
                                                              Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                           ..........

                                           OPINION

                         Rendered on the      18th       day of         July    , 2014.

                                           ..........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main
Street, Urbana, Ohio 43078
        Attorney for Plaintiff-Appellee

SEAN J. VALLONE, Atty. Reg. No. 0064053, 5 Irongate Park Drive, Suite A, Centerville,
Ohio 45459
      Attorney for Defendant-Appellant

                                           ..........

FROELICH, P.J.

        {¶ 1}      Jerry H. Cook appeals from a judgment of the Champaign County Court of
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Common Pleas which, after a hearing, revoked his community control and ordered him to

serve an aggregate term of 18 months in prison for burglary and assault. Cook raises two

assignments of error, both of which focus on that fact that the trial judge for his revocation

hearing was formerly a prosecutor on his case. For the following reasons, the trial court’s

judgment will be affirmed.

           {¶ 2}   In May 2007, Cook was indicted on aggravated burglary, a first-degree

felony, and three first-degree misdemeanors: assault, theft, and aggravated menacing. Cook

was arrested on the charges in January 2008, and an arraignment hearing occurred on

January 28, 2008. Then-County Prosecutor Nick Selvaggio appeared for the State and

indicated that he would serve as trial counsel. A second arraignment hearing, with defense

counsel, was held on February 6, 2008; Assistant Prosecutor Richard Houghton appeared for

the State at that hearing.

           {¶ 3}   On March 10, 2008, the court conducted a final pretrial conference.

Selvaggio indicated at that hearing that the case had been assigned to Assistant Prosecutor

Shockling, but that he (Selvaggio) “took it over.” Due to delayed discovery, Selvaggio

requested that the final pretrial conference be continued. Selvaggio appeared for the State

at the second final pretrial conference on March 20. On May 28, 2008, another pretrial

conference was held, at which time Cook appeared with new counsel; Assistant Prosecutor

Houghton appeared for the State.

           {¶ 4}   On June 28, 2008, Cook pled guilty to burglary, a fourth-degree felony, and

assault.     In exchange for the plea, the theft and aggravated menacing charges were

dismissed. The State, represented by Houghton, indicated that it agreed to recommend a
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presentence investigation and that, if no currently unknown criminal history were revealed,

the State would recommend community control.               A presentence investigation was

conducted. On August 4, 2008, the trial court sentenced Cook to three years of community

control for the burglary. As for the assault, the court imposed six months in jail, all of

which was suspended. The court imposed “concurrent” fines of $200 for each offense.

Houghton again represented the State at the sentencing hearing.

       {¶ 5}     On June 2, 2010, Cook was brought before the trial court and notified that

the probation department was charging him with violating his community control sanctions.

The court indicated that counsel would be appointed, and continued the hearing until June

10. On June 10, Cook stipulated to the existence of probable cause, but indicated that he

would like to contest the merits of the alleged violations. The court scheduled a hearing for

June 15. Houghton appeared for the State at both the June 2 and June 10, 2010 hearings.

       {¶ 6}     Selvaggio represented the State at the June 15, 2010 revocation hearing.

The State presented the testimony of Cook’s probation officer and argued that Cook’s

community control should be revoked. The court, however, continued Cook on community

control, with additional requirements, including that Cook be placed on house arrest at his

brother-in-law’s home pending admittance to a residential treatment program. The trial

court informed Cook that, if he violated community control, he faced 18 months in prison

for the burglary and six months in jail for the assault, to be served concurrently.

       {¶ 7}    In 2012, Selvaggio was elected to the Champaign County Court of Common

Pleas, General Division, upon the retirement of the original trial judge. Selvaggio’s term

was effective January 1, 2013.
[Cite as State v. Cook, 2014-Ohio-3165.]
        {¶ 8}     In April 2013, Cook was brought before the trial court on allegations that he

had violated his community control by failing to keep his probation officer apprised of his

residence since June 28, 2010, and by testing positive for marijuana. A revocation hearing

was held before Judge Selvaggio on May 9, 2013; Cook did not object to Judge Selvaggio’s

presiding over the hearing.

        {¶ 9}      Cook’s probation officer testified at the revocation hearing that Cook had

been at large since shortly after the June 15, 2010 revocation hearing and that, upon Cook’s

apprehension, he provided a urine sample that tested positive for marijuana. Cook testified

that his brother-in-law’s home was an “unhealthy” environment, that he tried to contact his

parole officers and the adult parole authority but was “super confused,” and he eventually

got married and “continued on with my life.” Cook testified that he smokes marijuana to

self-medicate for various medical conditions. The trial court revoked Cook’s community

control and sentenced him to an aggregate term of 18 months in prison.

        {¶ 10} Cook appeals from the trial court’s judgment.

        {¶ 11} Cook’s first assignment of error states: “The Trial Judge erred by not

recusing himself from the proceeding pursuant to The Ohio Code of Judicial Conduct.”

        {¶ 12} Cook claims that Judge Selvaggio, the trial judge at the 2013 revocation

hearing, should have recused himself, because he personally participated in the prosecution

of Cook while the county prosecutor. Cook cites to the Ohio Code of Judicial Conduct,

Rule 2.11, which provides, in part:

        (A) A judge shall disqualify himself or herself in any proceeding in which

        the judge’s impartiality might reasonably be questioned, including but not

        limited to the following circumstances: * * *
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       (7) The judge meets any of the following criteria:

                (a) The judge served as a lawyer in the matter in controversy or was

                associated with a lawyer who participated substantially as a lawyer in

                the matter during such association;

                (b) The judge served in governmental employment, and in such

                capacity participated personally and substantially as a lawyer or

                public official concerning the particular matter, or has publicly

                expressed in such capacity an opinion concerning the merits of the

                particular matter in controversy;

                (c) The judge was a material witness concerning the matter;

                (d) The judge previously presided as a judge over the matter in

                another court.

(Emphasis added.) Cook emphasizes that Judge Selvaggio, while the county prosecutor,

appeared for State as trial counsel during Cook’s 2010 revocation hearing and personally

advocated for the revocation of Cook’s community control at that time.

       {¶ 13}     At the outset, “R.C. 2701.03 sets forth the procedures for seeking

disqualification of a common pleas court judge for prejudice. Under that statute, a party

may file an affidavit of disqualification with the clerk of the supreme court. The Chief

Justice of the Supreme Court of Ohio or his designee determines whether the judge is biased

or prejudiced. Callison v. DuPuy, Miami App. No.2002 CA 52, 2003-Ohio-3032, ¶ 22,

citing Beer v. Griffith (1978), 54 Ohio St.2d 440, 441, 377 N.E.2d 775 and Section 5(C),

Article IV, Ohio Constitution. This procedure provides ‘the exclusive means by which a
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litigant may claim that a common pleas judge is biased and prejudiced.’              Jones v.

Billingham (1995), 105 Ohio App.3d 8, 11, 663 N.E.2d 657.” State v. Galluzzo, 2d Dist.

Champaign No. 2004-CA-25, 2006-Ohio-309, ¶ 15; Mathewson v. Mathewson, 2d Dist.

Greene No. 05-CA-35, 2007-Ohio-574, ¶ 36. Cook did not seek the disqualification of the

trial judge under R.C. 2701.03. Accordingly, we have no authority to review the issue of

the trial judge’s alleged bias and prejudice.       E.g., State v. Osie, Slip Opinion No.

2014-Ohio-2966, ¶ 62-65.

       {¶ 14} Even if we were to consider the issue, the Ohio Supreme Court has expressly

stated that the failure to timely object to a trial judge’s participation in a particular cause

results in waiver of that objection.      The Supreme Court stated: “In the absence of

extraordinary circumstances, an affidavit of disqualification should not be used to disqualify

a judge after lengthy proceedings have taken place in the case. A party may be said to have

waived the right to obtain a judge’s disqualification when the alleged basis therefor has been

known to the party for some time, but the objection is raised in an untimely fashion, well

after the judge has participated in the proceedings.” In re Disqualification of Pepple, 47

Ohio St.3d 606, 546 N.E.2d 1298 (1989). See also, e.g., In re Disqualification of Spon, 134

Ohio St.3d 1254, 2012-Ohio-6345, 984 N.E.2d 1069, ¶ 34 (“[I]t is well settled that an

affidavit of disqualification must be filed as soon as possible after the affiant becomes aware

of circumstances that support disqualification and that failure to do so may result in waiver

of the objection.”).

       {¶ 15} Moreover, we addressed and rejected arguments identical to Cook’s under

similar facts in State v. Brown, 2d Dist. Champaign No. 2013-CA-13, 2014-Ohio-2301 and
                                                                                             7

State v. Louden, 2d Dist. Champaign Nos. 2013-CA-30 & 2013-CA-31, 2014-Ohio-3059.

In both cases, we reasoned that the defendant waived his objection to the trial judge’s

presiding over his hearing by not filing an affidavit of disqualification, even though the

judge had previously participated as a prosecutor in the same case. As we stated in Brown:

               Brown did not raise this issue while the case was pending in the trial

       court. Brown’s remedy for a claim of judicial bias and prejudice based upon

       facts known to him before trial was to seek to disqualify the trial judge by

       means of an affidavit of bias or prejudice filed with the Supreme Court of

       Ohio pursuant to R.C. 2701.03. This affidavit should have been filed prior

       to the hearing on Brown’s alleged community control violations, at which the

       trial judge made factual findings against Brown. State v. Scharsch, 2d Dist.

       Champaign No. 2013-CA-38, 2014-Ohio-1756, ¶ 9, citing In re

       Disqualification of Pepple, 47 Ohio St.3d 606, 607, 546 N.E.2d 1298 (1989).

               By not filing an affidavit of bias before trial, Brown elected to be tried

       by the trial judge assigned to his case. In fairness to the State, he should not

       be allowed to seek a favorable outcome from that trial judge while retaining

       the ability to raise the bias and prejudice issue in the event of an unfavorable

       outcome.

(Footnote omitted.) Brown at ¶ 11-12. See also State v. Batty, 4th Dist. Ross No. 13 CA

3398, 2014-Ohio-2826 (defendant waived argument that the trial judge, who had previously

served as a prosecutor in the case, was not qualified to preside over the case by failing to

object and by not filing an affidavit of prejudice with the Supreme Court of Ohio).
                                                                                            8

       {¶ 16}    Cook does not argue on appeal that he was unaware that Judge Selvaggio

had personally participated as a prosecutor in his criminal case, and the record reflects that

he was. Cook was present at the January 28, 2008 arraignment, the March 10, 2008 pretrial

conference, and the June 15, 2010 community control violation hearing; Selvaggio appeared

as the prosecutor for each of these hearings. Cook had the same defense counsel for both

the 2010 community control violation hearing, during which Selvaggio appeared as the

prosecutor, and the 2013 community control violation, over which Selvaggio presided as

judge. Cook’s dialogue with Judge Selvaggio during sentencing for the 2013 community

control violation reflected Cook’s awareness, at that time, that Judge Selvaggio had been a

prosecutor on his case.       Despite his awareness, Cook did not, at any time, seek

disqualification or recusal of the judge. Instead, Cook elected to permit the trial court to

conduct the 2013 revocation hearing, without objection. Under these circumstances, Cook

has waived any error in the trial court’s participation in the revocation proceeding.

       {¶ 17} Cook’s first assignment of error is overruled.

       {¶ 18} Cook’s second assignment of error states: “Appellant was denied the

effective assistance of counsel in violation of his rights under the 6th Amendment [to] the

United States Constitution and Article 1, Section 10 of the Ohio Constitution.”

       {¶ 19}    To reverse a conviction based on ineffective assistance of counsel, an

appellant must demonstrate both that trial counsel's conduct fell below an objective standard

of reasonableness and that the errors were serious enough to create a reasonable probability

that, but for the errors, the result of the trial would have been different. Strickland v.

Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42
                                                                                                 9

Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption

that his or her conduct falls within the wide range of reasonable assistance. Strickland, 466

U.S. at 688. Hindsight is not permitted to distort the assessment of what was reasonable in

light of counsel’s perspective at the time, and a debatable decision concerning trial strategy

cannot form the basis of a finding of ineffective assistance of counsel. State v. Cook, 65

Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v. Rucker, 2d Dist. Montgomery No.

24340, 2012-Ohio-4860, ¶ 58.

       {¶ 20}     Cook claims that his trial counsel acted deficiently for two reasons. First,

he argues that his counsel was ineffective for failing to challenge Judge Selvaggio’s

presiding over the 2013 revocation hearing. Second, he asserts that his trial counsel should

have requested a competency evaluation and/or entered a not guilty by reason of insanity

(NGRI) plea.

       {¶ 21}     With respect to the trial court’s presiding over the 2013 revocation hearing,

there is no indication in the record that the outcome of the hearing would have been different

had the trial judge recused himself and another judge presided over the hearing. The facts

presented at the hearing – notably that Cook violated his house arrest shortly after the first

(2010) revocation hearing, Cook had previously absconded, his whereabouts were unknown

for approximately three years, and he continued to use marijuana – supported the trial court’s

conclusion that he was not amenable to community control. In addition, as we stated in

Brown, “it could have been trial strategy on the part of trial counsel to not seek

disqualification of the particular trial judge in this case, if trial counsel had reason to believe

that this particular judge would be more familiar with the facts and more lenient than another
                                                                                            10

judge.” Brown at ¶ 18.

       {¶ 22} In addition, we find no support in the record that Cook was incompetent or

satisfied the criteria for a NGRI plea. Cook’s discussions with the trial court reflect that he

may have low cognitive abilities and that he needed some guidance and support to live

independently.      During sentencing on the community control violations in 2013, Cook

indicated that he did not understand some of the legal terms and notifications that the court

provided. However, the court was able to clarify those matters using simpler terms, and

there is no indication that Cook was unable to understand the court proceedings and to assist

with his defense.

       {¶ 23} Cook’s second assignment of error is overruled.

       {¶ 24} The trial court’s judgment will be affirmed.

                                         ..........

DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Jane A. Napier
Sean J. Vallone
Hon. Nick A. Selvaggio
