[Cite as State v. Baker, 2019-Ohio-1807.]



             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                  BELMONT COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                  TERRY ALLEN BAKER, JR.,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                            Case No. 18 BE 0018


                                   Criminal Appeal from the
                        Court of Common Pleas of Belmont County, Ohio
                                      Case No. 12 CR 22

                                        BEFORE:
                 Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.


                                               JUDGMENT:
                                                 Affirmed.


 Atty. Dan Fry, Belmont County Prosecuting Attorney and Atty. Kevin Flanagan, Chief
 Criminal Assistant Prosecuting Attorney, Courthouse Annex No. 1, 147-A West Main
 Street, St. Clairsville, Ohio 43950, for Plaintiff-Appellee, No Brief Filed.

 Atty. John D. Falgiani, Jr., P.O. Box 8533, Warren, Ohio 44484 and
 Atty. Wesley A. Johnston, P.O. Box 6041, Youngstown, Ohio 44501, for Defendant-
 Appellant.

                                            Dated: May 7, 2019
                                                                                       –2–


 WAITE, P.J.

       {¶1}   Appellant Terry Allen Baker, Jr. appeals a March 21, 2018 Belmont County

Court of Common Pleas judgment entry. In this matter, Appellant argues that the trial

court abused its discretion when it reimposed his original prison sentence after he

committed several probation violations. Appellant alleges that the trial court was biased

against him when making this decision. For the reasons provided, Appellant’s argument

is without merit and the judgment of the trial court is affirmed. We note that this appeal

was consolidated with Appellant’s appeal in case number 18 BE 0021. For ease of

understanding, 18 BE 0021 is addressed in a separate opinion.

                             Factual and Procedural History

       {¶2}   This appeal stems from Appellant’s March 30, 2012 conviction on one count

of conveyance of certain prohibited items onto the property of state facilities, a felony of

the third degree in violation of R.C. 2921.36(A)(2). Appellant pleaded guilty as part of an

agreement to enter drug court. Pursuant to that agreement, Appellant’s sentence was

held in abeyance pending his satisfactory completion of all drug court requirements.

       {¶3}   Appellant did not comply with his drug court requirements. On March 18,

2013, the trial court found Appellant noncompliant during his drug court review. On

November 15, 2013, the court again found Appellant noncompliant, and sanctioned him

with fifteen hours of community service. On January 31, 2014, the court found Appellant

noncompliant and he was again sanctioned with fifteen hours of community service. On

March 14, 2014, the court found Appellant noncompliant and imposed a three-day jail

sentence. On July 11, 2014, Appellant was noncompliant yet again, however, it does not

appear that the court sanctioned him on this occasion. On July 18, 2014, when the court




Case No. 18 BE 0018
                                                                                      –3–


found Appellant noncompliant, it sentenced him to sixteen days in jail. Appellant was not

sanctioned for his noncompliance of August 1, 2014, but on September 11, 2014, the

state filed a motion to terminate Appellant’s drug court agreement after Appellant was

again found to be noncompliant.

       {¶4}    When the trial court issued a warrant for Appellant’s arrest, he absconded.

On September 26, 2014, the trial court granted the state’s motion to terminate Appellant

from drug court in absentia. On April 30, 2015, Appellant was located and arrested

pursuant to the warrant. On May 21, 2015, the trial court sentenced Appellant to thirty

months of incarceration, with credit for fifty-seven days served. The court also imposed

a three-year postrelease control term. Appellant did not appeal his sentence.

       {¶5}    On November 19, 2015, Appellant filed a motion for judicial release. The

trial court denied the motion on November 23, 2015. On February 23, 2016, Appellant

filed a second motion for judicial release. On May 3, 2016, the trial court granted

Appellant’s second motion for judicial release. The trial court amended Appellant’s

sentence to three years of community control and 100 hours of community service. The

court’s judgment entry clearly stated that the balance of Appellant’s original sentence

would be reimposed if he violated the terms of his community control sanction.

       {¶6}    The first year of community control was served at the Eastern Ohio

Correction Center (“EOCC”). On September 13, 2016 Appellant was released from the

EOCC and ordered to complete the remaining twenty-four months under the supervision

of the Ohio Adult Parole Authority. The court’s judgment entry in this regard stated that

any probation violation would result in a thirty month term of incarceration, with 539 days

of jail-time credit.




Case No. 18 BE 0018
                                                                                     –4–


       {¶7}    On January 31, 2018, Appellant pleaded guilty in county court to one count

of theft in case number 17CRB748. Although the record is limited, it appears that these

charges arose from an incident at WalMart. Appellant was also charged in county court

with unrelated domestic violence and child restraint violations during the same time

period.

       {¶8}    On February 22, 2018, the state filed a motion to revoke Appellant’s

community control sanction. The state alleged that Appellant violated the terms of his

probation due to his county court theft conviction in case number 17CRB748 and due to

the domestic violence and child restraint charges. The latter charges were subsequently

dismissed.

       {¶9}    On February 26, 2018, the trial court held a first stage hearing and

determined there was probable cause to believe that Appellant violated his community

control sanction. On March 19, 2018, the court held a second stage hearing and found

that Appellant violated probation based on his conviction for theft. The court sentenced

Appellant to serve the balance of his original prison sentence, thirty months of

incarceration with credit for 563 days served. It is from this entry that Appellant timely

appeals.

       {¶10} Again, Appellant also appealed denial of his motion to withdraw his guilty

plea entered in county court for theft (appeal number 18 BE 0018). While we granted

Appellant’s motion to consolidate the appeals, that case will be addressed separately.

The state failed to file a brief in either case.

                                 ASSIGNMENT OF ERROR




Case No. 18 BE 0018
                                                                                        –5–


       THE TRIAL COURT ABUSED ITS DISCRETION IN REVOKING

       APPELLANT'S       COMMUNITY         CONTROL        AND     IMPOSING       THE

       REMAINING TERM OF THE PRISON SENTENCE.


       {¶11} Appellant bases this appeal solely on his allegation that the trial court judge

in this matter had, in the past, represented him on an unrelated custody matter. According

to Appellant, the relationship between the parties deteriorated at some point during that

representation. Because of this, Appellant claims that the judge was biased against him

and this bias is reflected in the reimposition of his sentence.

       {¶12} It is well established that a criminal defendant who is tried before a biased

judge has been denied due process. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-

2128, 767 N.E.2d 166, ¶ 34, citing Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92

L.Ed.2d 460 (1986); Tumey v. Ohio, 273 U.S. 510, 534, 47 S.Ct. 437, 71 L.Ed. 749 (1927).

       {¶13} However, an appellate court does not have authority to disqualify a trial

court judge or to void the judgment of a trial court judge based on a claim of judicial bias.

Paparodis v. Snively, 7th Dist. Columbiana No. 06-CO-5, 2007-Ohio-6910, ¶ 48, citing

State v. Ramos, 88 Ohio App.3d 394, 398, 623 N.E.2d 1336, (9th Dist.1993). “The Chief

Justice of the Supreme Court of Ohio, or his designee, has exclusive jurisdiction to

determine a claim that a common pleas judge is biased or prejudiced.”              Jones v.

Billingham, 105 Ohio App.3d 8, 11, 663 N.E.2d 657 (2d Dist.1995), citing Section 5(C),

Article IV, Ohio Constitution; Adkins v. Adkins, 43 Ohio App.3d 95, 539 N.E.2d 686 (4th

Dist.1988).

       {¶14} As the chief justice of the supreme court has exclusive jurisdiction in regard

to judicial disqualification, and Appellant was required to seek redress from the supreme



Case No. 18 BE 0018
                                                                                         –6–


court prior to the judge taking action in this case, we cannot address Appellant’s claims

in this regard. Even if we had the ability to review Appellant’s claim, there is no evidence

in the record, other than a passing mention by Appellant, that the judge had provided

representation to Appellant in the past. Regardless, “[p]rior representation of a party by

a judge * * * on matters wholly unrelated to matters presently pending before the judge

does not mandate judicial disqualification, absent a specific showing of actual bias on the

part of the judge.” Ohi-Rail v. Barnett, 7th Dist. Jefferson No. 09-JE-18, 2010-Ohio-1549,

¶ 18, citing In re Disqualification of Rothgery, 117 Ohio St.3d 1250, 2005-Ohio-7152, 885

N.E.2d 245, ¶ 4. Appellant admits that any such representation would have been for a

wholly unrelated matter. Most importantly, there is absolutely no indication in this record

that the judge was in any way biased against Appellant. In fact, this record reveals that

the trial court gave Appellant every opportunity to remain in drug court and reap the

benefit of his agreement, but Appellant was seemingly indifferent to complying with the

requirements of drug court.

       {¶15} As to the length of the sentence, Appellant was warned in several judgment

entries that “[t]he term of incarceration for a violation of this Order shall be the remaining

balance of his original thirty (30) months of incarceration in the Penitentiary, with credit

for four hundred seven (407) days served as of May 2, 2016.” (5/3/16 J.E.) He was

clearly aware that his violation of probation would result in the reimposition of his original

sentence.

       {¶16} Accordingly, Appellant’s sole assignment of error is without merit and is

overruled.

                                         Conclusion




Case No. 18 BE 0018
                                                                                     –7–


       {¶17} Appellant argues that the trial court abused its discretion in reimposing his

original prison sentence. For the reasons provided, Appellant’s argument is without merit

and the judgment of the trial court is affirmed.


Donofrio, J., concurs.

D’Apolito, J., concurs.




Case No. 18 BE 0018
[Cite as State v. Baker, 2019-Ohio-1807.]




         For the reasons stated in the Opinion rendered herein, the assignment of error

 is overruled and it is the final judgment and order of this Court that the judgment of the

 Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs waived.

         A certified copy of this opinion and judgment entry shall constitute the mandate

 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

 a certified copy be sent by the clerk to the trial court to carry this judgment into

 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
