[Cite as State v. Hill, 2012-Ohio-5210.]



         IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                   :

        Plaintiff-Appellee                      :    C.A. CASE NO. 24966

vs.                                             :    T.C. CASE NO. 2010 CR 3880

ANDRE C. HILL                                  :     (Criminal Appeal from the
                                                      Common Pleas Court)
        Defendant-Appellant                     :

                                            .........

                                           OPINION

                            Rendered on the 9th day of November, 2012.

                                            .........

Mathias H. Heck, Prosecuting Attorney, by R. Lynn Nothstine, Assistant Prosecuting
Attorney, Atty. Reg. No. 0061560, P.O. Box 972, 301 West Third Street, Dayton, Ohio
45422
      Attorney for Plaintiff-Appellee

James C. Staton, Atty. Reg. No. 0068686, 5613 Brandt Pike, Huber Heights, Ohio 45424

        Attorney for Defendant-Appellant

                                            .........

GRADY, P.J.:

        {¶ 1}     Defendant Andre C. Hill appeals from a judgment of conviction for

possession of cocaine (10 grams but less than 2.5 grams of crack cocaine), R.C. 2925.11(A), a

second degree felony. The judgment was entered by the trial court after accepting a plea of

no contest Defendant entered following the court’s denial of his Crim.R. 12(C)(3) motion to

suppress evidence.
                                                                                              2

       {¶ 2} The indictment charging the offense of which Defendant was convicted alleges

that his offense occurred on or about December 6, 2010.           No hearing was held on

Defendant’s motion to suppress evidence. However, in its Decision and Order overruling

Defendant’s motion, the trial court found that the evidence Defendant moved to suppress was

seized in a search of the premises at 4261 Foxton Court, in Dayton, and that the search was

performed on the authority of a search warrant obtained on December 6, 2010, by Dayton

Police Detective Ryan T. Halburnt.

       {¶ 3} The motion to suppress Defendant filed on February 9, 2011 [Dkt. 12] argued

that the search and seizure was illegal because the search warrant Detective Halburnt obtained

was not signed by a judge, having instead been signed by Colette E. Moorman, a magistrate of

the Dayton Municipal Court. R.C. 2933.21 authorizes a judge of a court of record to issue

search warrants. “A search warrant is void ab initio if not signed by a judge prior to the

search.” State v. Williams, 57 Ohio St.3d 24, 565 N.E.2d 563 (1991), syllabus by the court.

       {¶ 4} The State argued that the magistrate was authorized to sign the warrant on

December 6, 2010, having been appointed a substitute judge following the death of the

Honorable Dennis J. Greaney, an incumbent judge of the Dayton Municipal Court. The State

attached to its written response a copy of an order signed by the Presiding/Administrative

Judge of the Dayton Municipal Court, appointing the magistrate to serve as a Substitute Judge

of that court “during the absence of Judge Greaney” * * * “for December 6-7, 2010.” The

order was filed on January 3, 2011. The entry also contains an oath of office prescribed for

judges to which the magistrate subscribed on that same date.
                                                                                          3

       {¶ 5} The trial court agreed with the State and overruled Defendant’s motion to

suppress, writing:

       O.R.C. Section 1901.12 permits the appointment of a substitute judge in a

       municipal court in the temporary absence of a judge. The State has produced

       the order which appointed Moorman as a substitute judge on the day she signed

       the search warrant.     Accordingly, the search was properly executed, and

       Defendant’s motion must be overruled. [Dkt. 16].

       {¶ 6} Defendant moved the court to reconsider its decision [Dkt. 18], arguing that

pursuant to R.C. 1901.10(A)(1)(a) appointments following and on account of a judge’s death

must instead be made by the chief justice of the supreme court. The trial court overruled

Defendant’s motion to reconsider, finding that R.C. 1901.10(A)(1)(a) does not apply “because

Moorman was appointed for a limited period of time as opposed to being appointed to

temporarily fill the entire vacancy created by Judge Greaney’s death.” [Dkt. 19].

       {¶ 7} Defendant waived his right to a trial and entered a plea of no contest to the

indicted charge on September 22, 2011. [Dkt. 22]. On December 22, 2011, having accepted

Defendant’s plea and found him guilty, the court entered a judgment of conviction imposing a

mandatory term of imprisonment of four years. [Dkt. 33]. Defendant filed a timely notice of

appeal. [Dkt. 35]. He raises two assignments of error on appeal.

       {¶ 8} Defendant’s first assignment of error:

“THE APPOINTMENT OF AN INTERIM JUDGE BY OTHER THAN THE CHIEF

JUSTICE OF THE OHIO SUPREME COURT WAS IMPROPER UPON THE DEATH OF

THE SITTING JUDGE.”
                                                                                           4

       {¶ 9} Defendant’s second assignment of error:

“THE TRIAL COURT ERRED WHEN IT ADMITTED EVIDENCE ACQUIRED BY THE

IMPROPER WARRANT.”

       {¶ 10} R.C. 1901.10 provides for filling a vacancy in the office of a judge of the

municipal court. Paragraph (A)(1)(a) of that section states:

       The judges of the municipal court and officers of the court shall take an oath of

       office, as provided in section 3.23 of the Revised Code. The office of judge of

       the municipal court is subject to forfeiture, and the judge may be removed from

       office, for the causes and by the procedure provided in sections 3.07 to 3.10 of

       the Revised Code. A vacancy in the office of judge exists upon the death,

       resignation, forfeiture, removal from office, or absence from official duties for

       a period of six consecutive months, as determined under this section, of the

       judge and also by reason of the expiration of the term of an incumbent when no

       successor has been elected or qualified. The chief justice of the supreme court

       may designate a judge of another municipal court to act until that vacancy is

       filled in accordance with section 107.08 of the Revised Code. A vacancy

       resulting from the absence of a municipal judge from official duties for a

       period of six consecutive months shall be determined and declared by the

       legislative authority.

       {¶ 11} R.C. 107.08, to which R.C. 1901.10(A)(1)(a) refers, provides for filling the

judicial vacancy through an appointment made by the governor, and mirrors the provisions of

Article IV, § 13, Ohio Constitution.
                                                                                          5

       {¶ 12} R.C. 1901.10(A)(1)(b) provides for instead filling a vacant judicial office

through an election when the vacancy occurs during a designated period prior to the next

general election.

       {¶ 13} R.C. 1901.12 provides for the vacation period of judges of the municipal

courts, and states:

       (A) A municipal judge is entitled to thirty days of vacation in each calendar

       year. Not less than two hundred forty days of open session of the municipal

       court shall be held by each judge during the year, unless all business of the

       court is disposed of sooner.

       (B) When a court consists of a single judge, a qualified substitute may be

       appointed in accordance with division (A)(2) of section 1901.10 of the Revised

       Code to serve during the thirty-day vacation period, who shall be paid in the

       same manner and at the same rate as the incumbent judge, except that, if the

       substitute judge is entitled to compensation under division (A)(5) or (6) of

       section 141.04 of the Revised Code, then section 1901.121 of the Revised

       Code shall govern its payment. If a court consists of two judges, one of the

       judges shall be in attendance at the court at all times, and the presiding judge

       shall have the authority to designate the vacation period for each judge, and

       when necessary, to appoint a substitute for the judge when on vacation or not

       in attendance. If a court consists of more than two judges, two-thirds of the

       court shall be in attendance at all times, and the presiding judge shall have
                                                                                             6

       authority to designate the vacation period of each judge, and, when necessary,

       to appoint a substitute for any judge on vacation or not in attendance.

       {¶ 14} The principal distinction between R.C. 1901.10 and 1901.12 is not with

respect to the period of time of the appointments concerned. The principal distinction is

instead with respect to the predicate event that authorizes the appointment.

       {¶ 15} R.C. 1901.10 applies when a judicial office once filled by commission

becomes vacant by reason of any of the events that section identifies, which includes the death

of the incumbent judge. Then, the chief justice of the Supreme Court may designate another

commissioned municipal court judge to act in the vacant position until a successor is

appointed by the governor or following a general election. R.C. 107.08; Article IV, § 13,

Ohio Constitution.

       {¶ 16} R.C. 1901.12 applies when a commissioned incumbent judge is temporarily

absent by reason of one or more of the 30 days of vacation which that section authorizes

municipal judges to take.     A “substitute judge” must then be appointed by the court’s

presiding judge to serve in the incumbent’s position. The substitute judge’s powers derive

from the incumbent’s commission. A substitute judge cannot be appointed to serve in the

position of a deceased judge, because that judge’s death terminates his or her commission.

Furthermore, death is not a “temporary absence.”

       {¶ 17} The Presiding/Administrative Judge of the Dayton Municipal Court was not

authorized to appoint a substitute judge to serve in Judge Greaney’s position following his

death. The further issue is whether that rendered illegal the search and seizure that were

conducted pursuant to the warrant the magistrate signed.
                                                                                              7

       {¶ 18} Defendant argues that even if the magistrate’s appointment as a substitute

judge was authorized by R.C. 1901.12, she lacked authority to sign the search warrant on or

about December 6, 2010, because she did not subscribe to her oath of office as a judge until

January 3, 2011, the date she was appointed a substitute judge. R.C. 3.23 prescribes the oath

a judge of a court of record must take. Article XV, § 7 of the Constitution of Ohio states:

       Every person chosen or appointed to any office under this state, before entering

       upon the discharge of its duties, shall take an oath or affirmation, to support the

       constitution of the United States, and of this state, and also an oath of office.

       {¶ 19} R.C. 3.22 mirrors to the constitutional provision, and states:

       Each person chosen or appointed to an office under the constitution or laws of

       this state, and each deputy or clerk of such officer, shall take an oath of office

       before entering upon the discharge of his duties. The failure to take such oath

       shall not affect his liability or the liability of his sureties.

       {¶ 20} The oath of office to which the magistrate subscribed on January 3, 2011, upon

her appointment as a substitute judge, did not authorize her to exercise the powers of that

judicial office on December 6-7, 2010, the term of her appointment, because she did not

subscribe to the oath before exercising her powers of office on those dates, which the

magistrate did when she signed the search warrant on December 6, 2010. The further issue is

whether that defect rendered illegal the search and seizure that were conducted pursuant to the

warrant.

       {¶ 21} Defendant relies on State v. Williams, which held that a warrant is void ab

initio if not signed by a judge prior to the search. In Williams, the warrant bore no signature
                                                                                               8

at all. In the present case, the warrant bore the signature of a person purporting to be a judge.

 The warrant did not suffer from the facial defect in Williams, which rendered the warrant

void and therefore precluded application of the “good faith” exception in United States v.

Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See State v. Spaw, 18 Ohio

App.3d 77, 480 N.E.2d 1138 (1984).

          {¶ 22} The power and authority of a judicial officer and the validity of her office

cannot be collaterally attacked in a criminal proceeding. Those challenges must instead be

made in an original action in quo warranto to determine whether the judge had a valid title to

her office, in which proceeding the judge herself would be made a party defendant and have

an opportunity to appear and make a defense thereto. Stiess v. State, 103 Ohio St. 33, 41

(1921). That challenge is not reviewable on appeal from an adverse judgment rendered in the

criminal proceeding. State ex rel. Stowell v. Lovinger, 6 Ohio St.3d 21, 450 N.E.2d 1176

(1983).

          {¶ 23} The two errors Defendant assigns with respect to the trial court’s denial of his

motion to dismiss constitute a collateral attack on his criminal conviction, and are therefore

not reviewable in this appeal from his criminal conviction.              Id.   Defendant’s two

assignments of error are overruled. The judgment of the trial court will be affirmed.

Donovan, J., and Hall, J., concur.



Copies mailed to:

R. Lynn Nothstine, Esq.
James C. Staton, Esq.
Hon. Barbara P. Gorman
9
