[Cite as In re Disqualification of Matia, 135 Ohio St.3d 1246, 2012-Ohio-6343.]




                         IN RE DISQUALIFICATION OF MATIA.
                             THE STATE OF OHIO v. PRIM.
          [Cite as In re Disqualification of Matia, 135 Ohio St.3d 1246,
                                    2012-Ohio-6343.]
Judges—Affidavits of disqualification—R.C. 2701.03—Mere suggestion that
        judge may be called as witness in underlying case is insufficient to
        establish bias, prejudice, or other disqualifying interest.
                   (No. 12-AP-128—Decided December 13, 2012.)
   ON AFFIDAVIT OF DISQUALIFICATION in Cuyahoga County Court of Common
                             Pleas Case No. CR-97-357925.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} Defendant Jesse Prim has filed an affidavit with the clerk of this
court under R.C. 2701.03 seeking to disqualify Judge David T. Matia from
presiding over any further proceedings in case No. CR-97-357925, now pending
on Prim’s motion for relief from judgment in the Court of Common Pleas of
Cuyahoga County.
        {¶ 2} Prim alleges that Judge Matia has personal knowledge of material
facts regarding Prim’s pending motion and that Judge Matia may be called as a
witness at any hearing on the motion.
        {¶ 3} Judge Matia has responded in writing to the allegations in Prim’s
affidavit. He disclaims any personal knowledge regarding Prim’s case that is
outside of the court record and asserts that he will not be a witness, “material or
otherwise,” in Prim’s case.
        {¶ 4} For the reasons explained below, no basis has been established to
order the disqualification of Judge Matia.
                            SUPREME COURT OF OHIO




                                  Background
       {¶ 5} In 1998, a jury convicted Prim of aggravated murder, attempted
aggravated murder, unlawful possession of a dangerous ordnance, and having a
weapon while under disability. State v. Prim, 134 Ohio App.3d 142, 147, 730
N.E.2d 455 (8th Dist.1999). After an unsuccessful petition for postconviction
relief, Prim filed a motion for resentencing, which was denied by the trial court.
State v. Prim, 8th Dist. No. 93955, 2010-Ohio-1580, ¶ 5. The Court of Appeals
for the Eighth District held that Prim’s sentences for unlawful possession and
having a weapon while under disability were void because the trial court failed to
inform Prim of postrelease control regarding those offenses. Id. at ¶ 8. The
appeals court remanded the case for resentencing on those counts. Id. at ¶ 10.
       {¶ 6} On November 22, 2010, Judge Matia entered a judgment finding
that Prim had already served his sentences for the charges of unlawful possession
and having a weapon under disability. Accordingly, Judge Matia held that he was
without jurisdiction to resentence Prim on those expired counts. In that entry,
Judge Matia also stated that Prim “is present in court with counsel” and that Prim
was “informed of his right to appeal.”
       {¶ 7} In October 2012, Prim filed a motion for relief from judgment
seeking to vacate Judge Matia’s November 22, 2010 entry. Prim claims that he
never attended any resentencing hearing before Judge Matia in November 2010
and he was not “present in court with counsel,” as Judge Matia’s entry indicates.
According to Prim, his public defender, the prosecutor, Judge Matia, and other
court officers conspired to perpetrate a “fraud upon the court” by “generat[ing]
this false judgment entry.” Prim’s motion remains pending before Judge Matia.
                   Merits of the Affidavit of Disqualification
       {¶ 8} Prim alleges that Judge Matia should be removed because he has
personal knowledge of the facts relating to the pending motion and “may be
called as a material witness at any hearing that may be scheduled.”




                                         2
                               January Term, 2012




       {¶ 9} In deciding affidavits of disqualification, the chief justice has
previously “ ‘declined to establish a rule “requiring disqualification of a judge
based solely on suppositions that the judge may be called as a witness or
allegations that the judge possesses evidence material to the case.” ’ ˮ In re
Disqualification of Hedric, 127 Ohio St.3d 1227, 2009-Ohio-7208, 937 N.E.2d
1016, ¶ 9, quoting In re Disqualification of Stuard, 113 Ohio St.3d 1236, 2006-
Ohio-7233, 863 N.E.2d 636, ¶ 6, quoting In re Disqualification of Gorman, 74
Ohio St.3d 1251, 657 N.E.2d 1354 (1993). “The mere suggestion that [a judge]
may be a witness in [the] case and an allegation that her testimony may be
material to disposition of the case are insufficient to establish the existence of
bias, prejudice, or other disqualifying interest.” Gorman at 1251. Moreover,
when the evidence may be obtained from witnesses other than the trial judge, the
judge is not such a material witness as to require the judge’s disqualification.
Hedric at ¶ 9, citing Stuard at ¶ 6.        Indeed, mere familiarity with the
circumstances surrounding the trial does not render the judge a material witness.
Stuard at ¶ 6, quoting Bresnahan v. Luby, 160 Colo. 455, 458, 418 P.2d 171
(1966). “ ‘[T]he post-conviction court judge should only recuse himself if the
petitioner shows that the judge is the source of material evidence otherwise
unobtainable.’ ” Stuard at ¶ 6, quoting Coleman v. State, 194 Mont. 428, 435,
633 P.2d 624 (1981). A trial judge is not required to disqualify himself from a
postconviction hearing where his testimony would have been “ ‘either
cumulative * * * or immaterial.’ ” Stuard at ¶ 6, quoting Robison v. State, 1991
OK CR 111, 818 P.2d 1250, 1252.
       {¶ 10} Here, Prim only speculates that Judge Matia “may” be called as a
witness at any hearing on his pending motion. Further, Prim has neither alleged
nor established that the requested information is unavailable from other sources.
To the contrary, Prim alleges that Judge Matia engaged in a conspiracy with
Prim’s attorney, the prosecutor, and other court officers—which suggests that the



                                        3
                            SUPREME COURT OF OHIO




requested information could be obtained from others.              Compare In re
Disqualification of Flanagan, 127 Ohio St.3d 1236, 2009-Ohio-7199, 937 N.E.2d
1023, ¶ 5 (disqualifying judge where record demonstrated a “significant
likelihood that the judge may be called to testify in subsequent proceedings”).
       {¶ 11} To be sure, if Judge Matia ultimately concludes that he is likely to
be a material witness in the proceeding, he can and should disqualify himself, as
Jud.Cond.R. 2.11(A)(2)(d) directs. Every litigant is entitled to have his or her
case decided by a judge who can approach the case in an objective and impartial
manner, and a judge who possesses personal knowledge of evidentiary facts that
are in dispute may not be able to meet this criterion. However, Prim’s affidavit
does not conclusively establish that Judge Matia possesses evidence that is
necessary for resolution of the pending motion or unobtainable from other
witnesses.
       {¶ 12} The statutory right to seek disqualification is an extraordinary
remedy. In re Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-5489,
798 N.E.2d 23, ¶ 5. “A judge is presumed to follow the law and not to be biased,
and the appearance of bias or prejudice must be compelling to overcome these
presumptions.” Id. Prim has not overcome those presumptions here.
       {¶ 13} For the reasons stated above, the affidavit of disqualification is
denied. The case may proceed before Judge Matia.
                           ______________________




                                         4
