[Cite as State v. Sharp, 2020-Ohio-3497.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                            BUTLER COUNTY




 STATE OF OHIO,                                   :

        Appellee,                                 :         CASE NO. CA2019-10-181

                                                  :              OPINION
     - vs -                                                       6/29/2020
                                                  :

 STACY SHARP,                                     :

        Appellant.                                :




       CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                          Case No. CR2009-04-0679


Michael T. Gmoser, Butler County Prosecuting Attorney, Willa Concannon, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Michele Temmel, 6 S. Second Street, #305, Hamilton, Ohio 45011, for appellant



        PIPER, J.

        {¶1}     Appellant, Stacy Sharp, alleges he received ineffective assistance of counsel

when his defense counsel failed to file a motion for new sentencing in the Butler County

Court of Common Pleas after he was sentenced to 16 years for kidnapping and felonious

assault.

        {¶2}     Sharp's charges stemmed from an incident in which he kidnapped the victim
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and viciously beat her while an accomplice drove them around in a car for several hours.

Despite the victim's serious injuries and repeated attempts to flee the car, Sharp claimed

that he and the victim were in a relationship and simply had an argument. In 2009, Sharp

was found guilty of the charges by a jury. The trial court sentenced Sharp to an aggregate

sentence of 16 years; three years less than the maximum sentence recommended by the

state.

         {¶3}   Nine years later, the trial judge who presided over Sharp's case presided over

an unrelated criminal trial in which the defendant was charged with five counts of rape, and

single counts of kidnapping, domestic violence, and gross sexual imposition. In the latter

case, the judge sentenced that defendant to 33 years in prison. During postconviction relief

proceedings, the judge recused himself from the case. The judge raised concerns of a

possible implicit bias he may have had against the defendant at sentencing because a

member of the judge's family had been a victim of crimes like those committed by the

defendant.

         {¶4}   Due to the comments made by the judge about the possibility of an implicit

bias, the Butler County Prosecutor's Office sent notice to the defendants who had been

sentenced by that judge for similar crimes during the judge's time on the bench. Sharp

received this notice with respect to his kidnapping and felonious assault convictions.

         {¶5}   Sharp filed motions for leave to file a motion for a new trial out of time, as well

as a motion for a new trial. A different judge, appointed by the Ohio Supreme Court,

considered the motions, and granted Sharp's motion for leave to file a motion for a new trial

out of time. The appointed judge held a hearing on Sharp's motion for a new trial during

which defense counsel argued that the original trial judge was biased against Sharp and

that Sharp was entitled to a new trial with a "blank canvas" and an unbiased judge. The

state argued that Sharp had filed a motion for a new trial in 2009 after he was found guilty,

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but had failed to raise any issues regarding potential bias. The state also noted that Sharp

had filed a direct appeal from his convictions, but did not raise the issue of judicial bias, nor

challenge the appropriateness of his sentence. State v. Sharp, 12th Dist. Butler No.

CA2009-09-236, 2010-Ohio-3470.

       {¶6}   The appointed judge determined that Sharp had not demonstrated any

prejudice from the original trial judge and denied Sharp's motion for a new trial. Sharp now

appeals the trial court's decision, raising the following assignment of error:

       {¶7}   APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

       {¶8}   Sharp argues in his sole assignment of error that he was denied effective

assistance of counsel because his counsel did not file a separate motion for a new

sentencing.

       {¶9}   To prevail on an ineffective assistance of counsel claim, an appellant must

establish that (1) his trial counsel's performance was deficient and (2) he was prejudiced by

the deficient performance. Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct.

2052 (1984). Trial counsel's performance will not be deemed deficient unless it "fell below

an objective standard of reasonableness." Id. at 688. To show prejudice, the appellant

must prove there exists "a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different." Id. at 694. An appellant's

failure to satisfy one prong of the Strickland test negates a court's need to consider the

other. State v. Green, 12th Dist. Clermont No. CA2019-07-061, 2020-Ohio-1552.

       {¶10} "Judicial bias has been described as a hostile feeling or spirit of ill will or undue

friendship or favoritism toward one of the litigants or his attorney, with the formation of a

fixed anticipatory judgment on the part of the judge, as contradistinguished from an

open state of mind which will be governed by the law and the facts." State v. Dean, 127

Ohio St.3d 140, 2010-Ohio-5070, ¶ 48.

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      {¶11} Judges are presumed not to be biased or prejudiced toward those appearing

before them, and a party alleging bias or prejudice must present evidence to overcome the

presumption. State v. Lawrence, 12th Dist. Butler Nos. CA2017-06-078 and CA2019-03-

048, 2020-Ohio-855, ¶ 20. The evidence must demonstrate an appearance of bias or

prejudice compelling enough to overcome the presumption of judicial integrity. Id.

      {¶12} After reviewing the record, we find that Sharp was not denied effective

assistance of counsel where there is no indication that a motion for new sentencing would

have been granted. As previously noted, the original trial judge sentenced Sharp after

properly considering the statutory factors and sentenced Sharp within the statutory

guidelines for felonious assault and kidnapping. The trial court's sentence was three years

less than the maximum sentence proposed by the state.

      {¶13} Moreover, the record supports the trial court's sentence.            There was

overwhelming evidence of Sharp's guilt, including eyewitness testimony and DNA evidence.

The evidence demonstrated that Sharp severely beat the victim over a period of several

hours after kidnapping her in a car. Sharp had an extensive criminal history and was a

registered sex offender at the time of these crimes. His criminal history included sex

offenses, domestic violence, and drug-related convictions. Thus, the trial court's sentence

lacks the necessary hostile feeling, spirit of ill will, or undue favoritism toward the state

necessary to show prejudice or judicial bias.

      {¶14} Sharp's sentencing occurred nine years before the original trial judge's

statement and recusal from the unrelated case. During these nine years, Sharp filed a

motion for a new trial and a direct appeal of his convictions.       In none of the earlier

proceedings did Sharp indicate that he was prejudiced by the trial court or suggest any

judicial bias during his trial or sentencing. There is simply no indication that Sharp's

sentence was the product of prejudice or bias against Sharp. Sharp's claim at this stage

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appears to be nothing more than speculation in an effort to take advantage of events in an

unrelated case.

       {¶15} Sharp has not demonstrated anything that would overcome the presumption

of judicial integrity in his case and has failed to show that the original court was biased in

imposing the sentence. Sharp is unable to establish that a motion for resentencing would

have been granted and, as such, has failed to demonstrate a denial of effective counsel.

Sharp's single assignment of error is, therefore, overruled.

       {¶16} Judgment affirmed.


       S. POWELL, P.J., and RINGLAND, J., concur.




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