[Cite as In re Disqualification of Brown, 139 Ohio St.3d 1224, 2014-Ohio-2154.]




                        IN RE DISQUALIFICATION OF BROWN.
                                  STATE v. WILLIAMS.
          [Cite as In re Disqualification of Brown, 139 Ohio St.3d 1224,
                                    2014-Ohio-2154.]
Judges—Affidavit of disqualification—R.C. 2701.03—Absent evidence of bias or
        prejudice, an affidavit of disqualification cannot be used to remove a
        judge from resentencing a defendant solely because the judge previously
        imposed the maximum sentence permitted by law—Disqualification
        denied.
                      (No. 14-AP-022—Decided April 9, 2014.)
  ON AFFIDAVIT OF DISQUALIFICATION in Stark County Court of Common Pleas
                              Case No. CR 2012-CR-0164.
                                ____________________
        O’CONNOR, C.J.
        {¶ 1} Defendant Agatha Martin Williams has filed an affidavit with the
clerk of this court under R.C. 2701.03 seeking to disqualify Judge Charles E.
Brown Jr., a retired judge sitting by assignment, from presiding over any further
proceedings in case No. 2012-CR-0164, now pending for resentencing in the
Court of Common Pleas of Stark County.
        {¶ 2} Williams claims that Judge Brown is biased and prejudiced against
her because she is personally acquainted with him, he has developed hostile
feelings towards her, and he has reached a fixed anticipatory judgment about her
sentence.
        {¶ 3} Judge Brown has responded in writing to the allegations in
Williams’s affidavit, denying any bias or prejudice against her. He further avers
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that he will listen to all arguments by counsel at the resentencing and decide,
based upon what he hears, the appropriate sentence.
        {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Brown.
                                      Background
        {¶ 5} In February 2012, Williams pled guilty to one count of forgery,
four counts of grand theft, and one count of theft. Judge Brown sentenced her to
five years of probation. Williams later violated the conditions of her probation,
and in October 2012, Judge Brown sentenced her to the maximum prison sentence
for each count, to be served consecutively, which amounted to eight and a half
years in prison. In August 2013, the Fifth District Court of Appeals reversed and
remanded for resentencing, finding that Judge Brown did not make all of the
statutorily required findings necessary for the imposition of consecutive
sentences. See State v. Williams, 5th Dist. Stark No. 2013CA00189, 2013-Ohio-
3448, ¶ 32, 39.
        {¶ 6} Judge Brown retired from the bench in September 2013, but he
was assigned to preside over the underlying case for the purpose of resentencing.
On February 7, 2014, Judge Brown held a hearing, during which he intended to
resentence Williams.     However, Williams’s counsel requested a continuance,
claiming that he had not had adequate time to confer with his client or prepare for
the hearing. Judge Brown granted the continuance, and Williams then filed this
affidavit of disqualification.
                     Merits of the affidavit of disqualification
        {¶ 7} In affidavit-of-disqualification proceedings, “[t]he term ‘bias or
prejudice’ ‘implies 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.’ ” In re




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Disqualification of O’Neill, 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d
17, ¶ 14, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 132
N.E.2d 191 (1956). The burden falls on the affiant to submit specific allegations
of bias or prejudice. See R.C. 2701.03(B)(1). In addition, a “presumption of
impartiality” is “accorded all judges.” In re Disqualification of Celebrezze, 101
Ohio St.3d 1224, 2003-Ohio-7352, 803 N.E.2d 823, ¶ 7.
       {¶ 8} Williams first claims that Judge Brown is biased against her
because he recruited her to run for political office and contributed to her 2001
campaign for judicial office. Judge Brown, however, disclosed his prior political
association with Williams on the record at her February 2012 plea hearing, and he
gave both parties the opportunity at that time to request his recusal. Williams
agreed to move forward with Judge Brown presiding. It is well settled 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). Moreover, the fact that
Williams did not request Judge Brown’s recusal at the commencement of her case
suggests that she did not previously believe that her prior political connections
with him amounted to bias or prejudice. Parties are not permitted to participate in
an action to the extent that they are able to ascertain the attitude of the judge
toward a pending aspect of the case “and then avoid an adverse ruling by
belatedly raising the issue of disqualification.” In re Disqualification of Murphy,
36 Ohio St.3d 605, 522 N.E.2d 459 (1988). Williams has waived this objection to
Judge Brown.
       {¶ 9} Second, Williams claims that Judge Brown has developed “hostile
feelings” and “ill will” towards her, pointing to the judge’s comments at her
October 2012 sentencing after the revocation of her probation. Specifically,
Williams claims that Judge Brown compared her to repeat drug offenders and



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stated that the reason he was not giving her a second chance was because she was
an attorney.     Williams also claims that Judge Brown “bragged” about his
nickname as “Send Them Down Brown.”               In response, Judge Brown has
submitted a transcript of the October 2012 sentencing hearing, in which he stated
the following.


                 So why am I doing all this? Because I have got to tell you
       all this isn’t the first time that I have heard someone come to me
       and say judge, just give me another chance.
                 ***
                 Everybody also knows that while I do take into
       consideration each and every case, I’m also known as send them
       down Brown. Violate the terms and conditions of your probation,
       the judge has told you at the outset what it will be if he finds that
       revocation is the appropriate remedy and I did that in Ms.
       Williams’s case.
                 And everyone knows five counts of F4, one court of F5,
       [Williams’s counsel] has alluded I told her at the time it would be
       the maximum on each, it would be run consecutively, 102 months
       which is eight years and six months. Individuals come to me 19
       years of age, 35 years of age, 45 years of age, had prior brushes
       with the law, possession of cocaine, trafficking in cocaine,
       domestic violence, they have said judge, give me a shot. I think I
       can make probation. They come back. Give me another chance,
       judge. Doesn’t happen that way.
                 Particularly does not happen when you’re an attorney.




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       {¶ 10} “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.” In re Disqualification of Winkler, 135 Ohio St.3d
1271, 2013-Ohio-890, 986 N.E.2d 996, ¶ 9. Here, Judge Brown’s comments
appear to describe his sentencing philosophy, and they do not indicate any
personal hostility or ill will against Williams warranting his disqualification.
Compare id. at ¶ 11 (disqualifying trial judge from resentencing a defendant
because, among other reasons, the judge’s description of the defendant at the
initial sentencing might have caused an objective observer to question whether the
judge had developed hostile feelings toward that defendant).          Accordingly,
Williams’s allegations of bias based on these comments are not well taken.
       {¶ 11} Third, Williams claims that Judge Brown expressed a “fixed
anticipatory judgment” at the February 2014 hearing because he was prepared to
resentence Williams to maximum and consecutive sentences without hearing any
evidence. Judge Brown has again submitted the transcript of that hearing, and
Williams is correct that Judge Brown stated that he was prepared to resentence
Williams without hearing any additional evidence.           However, the judge’s
comments were based on his reading of the Fifth District’s opinion, not bias or
prejudice against Williams. That is, Williams’s counsel had argued that since
imposition of the initial sentence, circumstances in Williams’s life had changed
and these circumstances were relevant to the “new sentence” that the judge was
required to impose. But Judge Brown believed that the court of appeals had
ordered him to make certain findings to support his sentence, not to consider new
evidence—especially evidence about Williams’s behavior since the imposition of
the original prison sentence.
       {¶ 12} Whether Judge Brown properly interpreted the Fifth District’s
opinion is an issue for appeal, not for an affidavit of disqualification. Williams’s



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dissatisfaction or disagreement with the judge’s legal interpretation—even if later
found to be erroneous—does not constitute bias or prejudice.                   In re
Disqualification of Floyd, 101 Ohio St.3d 1217, 2003-Ohio-7351, 803 N.E.2d
818, ¶ 4. Accordingly, the judge’s comments at the February 2014 hearing are
not grounds for disqualification.
       {¶ 13} Finally, in her affidavit, Williams criticizes Judge Brown’s alleged
“frontier style of max/stack justice,” in which she claims that he imposes
maximum and consecutive sentences on defendants without taking into account
the individual circumstances of each case. If Williams believes that Judge Brown
committed legal error by not taking into account all of the relevant factors in her
case, she should have raised—or should raise in the future—those issues on
appeal. Absent evidence of bias or prejudice, an affidavit of disqualification
cannot be used to remove a judge from resentencing a defendant solely because
the judge previously imposed the maximum sentence permitted by law. See
Flamm, Judicial Disqualification, Section 31.3, 946-947 (2d Ed.2007).
       {¶ 14} For the reasons explained above, the affidavit of disqualification is
denied. The case may proceed before Judge Brown.
                   Motion to access for legal research/library
       {¶ 15} Williams has also filed a “Motion For Defendant’s Access To
Legal Research/Library,” in which she requests that the chief justice do one of the
following: (1) order the Stark County sheriff to convey her back to prison, (2)
order the sheriff to allow her access to a law library for a minimum of two hours
per weekday, or (3) set a reasonable bond allowing her to be released from jail.
However, Article IV, Section 5(C) of the Ohio Constitution and the relevant
statutory provisions enacted pursuant to that provision limit the authority of the
chief justice to passing on the matter of judicial disqualification and, if necessary,
assigning a replacement judge. In re Disqualification of Celebrezze, 74 Ohio
St.3d 1242, 1243-1244, 657 N.E.2d 1348 (1992). It is beyond the constitutional




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and statutory authority given to the chief justice in affidavit-of-disqualification
proceedings to issue the relief requested by Williams. Williams’s motion is
therefore denied.
                          ________________________




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