[Cite as State v. Gregory, 2016-Ohio-7940.]


                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                               GALLIA COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 16CA3
                               :
     vs.                       :
                               :    DECISION AND JUDGMENT
FORREST S. GREGORY,            :    ENTRY
                               :
    Defendant-Appellant.       :    Released: 11/22/16
_____________________________________________________________
                         APPEARANCES:

Timothy P. Gleeson, Gleeson Law Office, Logan, Ohio, for Appellant.

Adam R. Salisbury, Gallipolis City Solicitor, Gallipolis, Ohio, for Appellee.
_____________________________________________________________

McFarland, J.

        {¶1} Forest S. Gregory appeals the judgment of the Gallipolis

Municipal Court entered on March 24, 2016. On appeal, Appellant contends

the trial court committed structural error when an assistant prosecuting

attorney for Gallia County Common Pleas Court served as judge by

appointment in Appellant’s case in the Gallipolis Municipal Court.

However, based on our review of the matter and longstanding legal

precedent, we find we are without jurisdiction to address Appellant’s

argument herein. Accordingly, the appeal is dismissed.
Gallia App. No. 16CA3                                                         2

                                    FACTS

      {¶2} After a single vehicle accident on October 27, 2015, Appellant

was charged with a violation of R.C. 4511.19(A)(1(a), 4511.19(A)(2),

“OVI,” and other traffic infractions, including failure to control, in the

Gallipolis Municipal Court on March 24, 2016. He was convicted after a

bench trial. The issue at trial was whether or not Appellant was operating

the motor vehicle when it crashed. The State presented the testimony of two

Ohio State Highway Patrol Troopers who investigated the crash. The

troopers testified Appellant first told them his friend “Dave” operated the

vehicle, but later stated “Chuck” operated it. They found no evidence that

anyone besides Appellant operated the vehicle.

      {¶3} Appellant also testified on his own behalf. Appellant admitted

intoxication but maintained he was a passenger in the vehicle. He testified

his friend Charles Moore, who resides in Florida and did not return for trial,

was actually operating the vehicle but left the scene.

      {¶4} Appellant’s bench trial in the Gallipolis Municipal Court was

presided over by Attorney Eric R. Mulford, judge by appointment. At the

time of trial, Attorney Mulford was also employed as an assistant

prosecuting attorney in the Gallia County Prosecuting Attorney’s Office.
Gallia App. No. 16CA3                                                            3

After being convicted, Appellant was sentenced to a fine, court costs, jail,

and intensive probation until March 2018. This timely appeal followed.

                        ASSIGNMENT OF ERROR

      “I. AN ASSISTANT PROSECUTING ATTORNEY FOR THE
      GALLIA COUNTY PROSECUTING ATTORNEY’S OFFICE
      SERVING AS A JUDGE BY APPOINTMENT IN THE
      TRIAL COURT FOR A CASE PROSECUTED BY THE
      STATE OF OHIO IS STRUCTURAL ERROR IN
      VIOLATION OF THE CONSTITUTIONAL RIGHT TO DUE
      PROCESS.”

                       A. STANDARD OF REVIEW

      {¶5} This Court lacks jurisdiction to consider the trial judge's failure

to recuse himself. State v. Minton, -- N.E.3d --, 2016-Ohio-5427, ¶ 84. See

State v. Batty, 2014-Ohio-2826, 15 N.E.3d 347, ¶ 11 (4th Dist.), quoting

Citizen of Hocking Cty. v. Ohio Power Co., 4th Dist. Hocking No. 11CA24,

2012-Ohio-4985, ¶ 18 (“ ‘[A] court of appeals lacks jurisdiction to review

[recusal] decisions.’ ”). “The Supreme Court of Ohio has explained that

‘only the Chief Justice or [the Chief Justice's] designee may hear

disqualification matters[.]’ ” Id., quoting Ohio Power at ¶ 18, quoting Beer

v. Griffith, 54 Ohio St.2d 440, 441, 377 N.E.2d 775 (1978). “ ‘Consequently,

a “Court of Appeals [is] without authority to pass upon disqualification or to

void the judgment of the trial court upon that basis.” ’ ” Id., quoting Ohio

Power at ¶ 18, quoting Beer at 441-442, 377 N.E.2d 775.
Gallia App. No. 16CA3                                                          4

                           B. LEGAL ANALYSIS

      {¶6} Appellant argues that an assistant prosecuting attorney for the

Gallia County Prosecuting Attorney’s Office is a legal representative of and

advocate for the State of Ohio. As such, the assistant prosecuting attorney

cannot possibly serve as an impartial judge in a prosecution brought by the

State of Ohio in Gallia County, Ohio. Appellant concludes this is structural

error which requires reversal.

      {¶7} The State of Ohio responds that there are no facts in the instant

matter which support the conclusion that Eric R. Mulford, judge by

appointment, must have recused himself from the case. The State points out

no facts exist to suggest that Mulford was familiar with the defendant or the

particular facts of the case; that Mulford was a potential witness in the case;

that Mulford’s remuneration from the County or State was dependent upon

the outcome of the case; and that Mulford owed any duty to Appellant as a

former client. The State concludes no extreme bias was shown which

required Judge Mulford’s recusal.

      {¶8} Our decision herein is controlled by R.C. 2701.031, which

provides as follows:

      “If a judge of a municipal or county court allegedly is interested
      in a proceeding pending before the judge, allegedly is related to
      or has a bias or prejudice for or against a party to a proceeding
      pending before the judge or to a party's counsel, or allegedly
Gallia App. No. 16CA3                                                         5

      otherwise is disqualified to preside in a proceeding pending
      before the judge, any party to the proceeding or the party's
      counsel may file an affidavit of disqualification with the clerk
      of the supreme court. The affidavit of disqualification shall be
      filed and decided in accordance with divisions (B) to (E) of
      section 2701.03 of the Revised Code, and, upon the filing of the
      affidavit, the provisions of those divisions apply to the affidavit,
      the proceeding, the judge, and the parties to the proceeding.”

      {¶9} The appellant in State v. Batty, 15 N.E.3d 347, 2014-Ohio-2826

(4th Dist.), argued that the judge in her case should have recused himself

because he had earlier been a prosecutor in her case before becoming

common pleas judge. Specifically, the trial judge, as former prosecutor, had

signed the indictment in her case, requested a warrant, signed praecipes, and

his name was contained on the county prosecutor’s office letterhead.

However, in Batty and Ohio Power, and more recently in Minton, we

explained that: “R.C. 2701.03 sets forth the procedure by which a party may

seek disqualification. The statute requires the party seeking disqualification

to file an affidavit of prejudice with the Ohio Supreme Court. This court,

therefore, has no jurisdiction to pass upon this issue[.]” Ohio Power at ¶ 19;

Batty at ¶ 17, quoting Ohio Power; Minton, at ¶ 85.

      {¶10} Here, R.C. 2701.031 sets forth the proper procedure to seek

recusal of the municipal court judge by appointment who presided over

Appellant’s traffic cases prosecuted by the City of Gallipolis. As in Minton,

supra, Appellant did not seek recusal via the proper avenue—i.e., by filing
Gallia App. No. 16CA3                                                          6

an affidavit of prejudice with the Supreme Court of Ohio. Thus, as in the

previous Fourth District cases cited, we are without jurisdiction to address

his argument that the trial judge erred by failing to recuse or disqualify

himself. Accordingly, Appellant’s sole assignment of error is dismissed.

                                                      APPEAL DISMISSED.
Gallia App. No. 16CA3                                                              7

Harsha, J., concurring:

      {¶11} I agree that courts of appeals generally lack jurisdiction to

disqualify a trial court judge based on claims of judicial bias. Gregory here

asserts that the trial judge’s service as a judge at the same time that he served

as an assistant prosecuting attorney in other criminal cases constituted a

structural error violating his constitutional right to due process because the

judge was biased and not impartial.

      {¶12} “ ‘It is well settled that a criminal trial before a biased judge is

fundamentally unfair and denies a defendant due process of law.’ ” State v.

Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, ¶ 78,

quoting State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d

166, ¶ 34. Appellate courts, including the Supreme Court of Ohio, have on

occasion routinely address the merits of these judicial-bias claims on direct

appeal notwithstanding the provision of R.C. 2701.03 vesting the Chief

Justice of the Supreme Court of the chief’s designee with exclusive

jurisdiction to resolve issues concerning the disqualification of trial court

judges. See Jackson; State v. Dennison, 10th Dist. Franklin No. 12AP-718,

2013-Ohio-5535, ¶ 45-50; State v. Pierce, 11th Dist. Geauga No. 2012-G-

3103, ¶ 8-17; see also State v. Wilson, 3d Dist. Allen No. 1-09-53, 2010-

Ohio-2947, fn. 3, citing Tumey v. Ohio, 372 U.S. 510, 47 S.Ct. 437, 71
Gallia App. No. 16CA3                                                        8

L.Ed.2d 749 (1927) (“the United States Supreme Court has found structural

errors warranting reversal * * * where the trial judge was biased”).

      {¶13} This also appears to be consistent with the approach taken by

the Second District Court of Appeals. In State v. McCain, 2d Dist.

Montgomery No. 26356, 2015-Ohio-449, the appellate court indicated at ¶

14:

      As a preliminary matter, we note that ‘[i]ntermediate appellate
      courts, such as this one, have no jurisdiction to disqualify a
      judge based on claims of bias; such claims must be brought to
      the Chief Justice of the Ohio Supreme Court.’ Janis v. Janis,
      2d Dist. Montgomery No. 23898, 2011-Ohio-3731, ¶ 94, citing
      Beer v. Griffith, 54 Ohio St.2d 440, 441-442, 377 N.E.2d 775
      (1978). However, appellate courts may review the issue of
      judicial bias as a grounds for reversal on appeal. See State v.
      LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶
      34-35.

(Emphasis added.) See also State v. Power, 7th Dist. Columbiana No. 12

CO 14, 2013-Ohio-4254, ¶ 22 (holding that biased comments at a sentencing

hearing can be reviewed on appeal for due process violations).

      {¶14} In contrast to situations that arise during trial, the Supreme

Court has also emphatically held that a defendant who could have raised a

judicial bias claim in a timely affidavit of disqualification under R.C.

2701.03 to the Chief Justice, but failed to do so, is “ ‘ “foreclosed from

bringing such a complaint,” ’ ” on appeal. State v. Dean, 146 Ohio St.3d

106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 223, quoting State v. Osie, 140 Ohio
Gallia App. No. 16CA3                                                         9

St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 65, quoting State v. Moore, 93

Ohio St.3d 649, 650, 758 N.E.2d 1130 (2001).

      {¶15} Gregory is complaining about purported judicial bias that he

was either aware of or should have been aware of before trial. Therefore,

based on Dean, Osie, and Moore and although this area of the law remains

somewhat murky, Gregory is barred from raising his claim on appeal.

Consequently, I concur in the dismissal of his appeal for lack of jurisdiction

because we are not authorized to pass on his judicial-bias claim. See Viars

v. Ironton, 4th Dist. Lawrence No. 16CA8, 2016-Ohio-4912, ¶ 5, 57, 60.

      {¶16} But nothing in my opinion should be construed to preclude our

review on appeal of claims of judicial bias that arise during a trial.
Gallia App. No. 16CA3                                                          10

                           JUDGMENT ENTRY

      It is ordered that the APPEAL BE DISMISSED and costs be assessed
to Appellant.

      The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing
the Gallipolis Municipal Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
COURT OR THIS COURT, it is temporarily continued for a period not to
exceed sixty days upon the bail previously posted. The purpose of a
continued stay is to allow Appellant to file with the Supreme Court of Ohio
an application for a stay during the pendency of proceedings in that court. If
a stay is continued by this entry, it will terminate at the earlier of the
expiration of the sixty day period, or the failure of the Appellant to file a
notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
appeal prior to expiration of sixty days, the stay will terminate as of the date
of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.

Hoover, J.: Concurs in Judgment and Opinion.
Harsha, J.: Concurs with Concurring Opinion.

                                        For the Court,

                                 BY: _____________________________
                                     Matthew W. McFarland, Judge

                          NOTICE TO COUNSEL

      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from
the date of filing with the clerk.
