[Cite as In re Disqualification of Sage, 134 Ohio St.3d 1217, 2011-Ohio-7082.]




                          IN RE DISQUALIFICATION OF SAGE.
                           THE STATE OF OHIO v. JOHNSON.
[Cite as In re Disqualification of Sage, 134 Ohio St.3d 1217, 2011-Ohio-7082.]
Affidavit of disqualification—R.C. 2701.03—Allegations of misconduct by
        assistant prosecutor in underlying case and judge’s professional
        relationship with assistant prosecutor are insufficient to warrant
        disqualification—Judge’s knowledge of allegations against prosecutor
        would not prejudice judge against defendant.
                      (No. 11-AP-038—Decided May 10, 2011.)
 ON AFFIDAVIT OF DISQUALIFICATION in Butler County Court of Common Pleas
                               Case No. CR2010-11-1867.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} Defendant Tyree Johnson and his attorney, Kenneth J. Crehan,
have each filed affidavits with the clerk of this court under R.C. 2701.03 seeking
to disqualify Judge Michael J. Sage from further proceedings in case No.
CR2010-11-1867, a criminal matter now pending in the Court of Common Pleas
of Butler County.
        {¶ 2} Defendant Johnson and attorney Crehan claim that Judge Sage
cannot be impartial in the underlying case because of the judge’s relationship with
Jason Phillabaum, a former assistant prosecutor for Butler County who was
assigned to Judge Sage’s courtroom for several years.                Phillabaum has been
accused of prosecutorial misconduct involving the gun specifications charged in
Johnson’s indictment.
        {¶ 3} Judge Sage has responded in writing to the concerns raised in the
affidavit of disqualification. The judge states that he has been fair to Johnson on
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every occasion and is not biased or prejudiced against him in any manner. Judge
Sage maintains that he has exercised extraordinary caution and discretion by
referring all matters relating to Phillabaum’s alleged misconduct to a visiting
judge.
                                  Relevant Facts
         {¶ 4} In December 2010, Johnson was charged with two counts of
aggravated robbery and three counts of felonious assault. All five counts carried a
firearm specification.
         {¶ 5} In February 2011, the Butler County prosecutor alleged that
assistant prosecutor Phillabaum had committed prosecutorial misconduct in
Johnson’s case. Specifically, Phillabaum was accused of adding the firearm
specifications to Johnson’s indictment without presenting those specifications to
the grand jury for a vote. Phillabaum was subsequently terminated from his
position as an assistant county prosecutor.
         {¶ 6} On February 10, 2011, Judge Sage held a hearing on the state’s
motion to unseal the grand-jury proceedings in Johnson’s case.            Because
Phillabaum was the prosecutor assigned to Judge Sage’s courtroom, Judge Sage
believed that he could not preside over Johnson’s trial if he heard evidence of
Phillabaum’s alleged misconduct. The judge, citing State v. Gillard, 40 Ohio
St.3d 226, 533 N.E.2d 272 (1988), found that hearing evidence on those claims
against Phillabaum could potentially undermine his ability to sit as a fair and
impartial judge in the case against Johnson. Therefore, Judge Sage referred all
matters that dealt with Phillabaum’s alleged misconduct to a visiting judge.
Retired Judge Guy Guckenberger was appointed to hear those issues involving
Phillabaum, and Judge Sage retained jurisdiction over Johnson’s underlying
criminal case.
         {¶ 7} On March 24, 2011, Judge Guckenberger found that the grand jury
did not return gun specifications against Johnson because the vote sheet did not




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include any gun specification. On March 30, 2011, the state filed a superseding
indictment against Johnson adding the gun specifications.
       {¶ 8} On April 4, 2011, attorney Crehan filed a motion to dismiss the
indictment and superseding indictment.         The motion asserts that all charges
should be dismissed because Johnson’s right to due process was violated by
Phillabaum’s misconduct. On April 13, 2011, Judge Sage referred the matter to
Judge Guckenberger because the motion to dismiss raised issues of prosecutorial
misconduct involving Phillabaum.
       {¶ 9} On April 14, 2011, Crehan filed the instant affidavits of
disqualification.    For the following reasons, I find no basis for ordering the
disqualification of Judge Sage.
                    Attorney Crehan’s Affidavit of Disqualification
       {¶ 10} Crehan contends that Judge Sage cannot sit as an impartial trier of
fact because he has reviewed too much information about Phillabaum’s
misconduct as it relates to Johnson’s case. According to Crehan, Judge Sage has
reviewed the motion to dismiss, which contains the same information the judge
previously decided he could not hear because he did not want to prejudice himself
as the trier of fact in Johnson’s case. Crehan further alleges that Judge Sage’s
magistrate has briefed the judge on the issues raised in the motion to dismiss.
       {¶ 11} For his part, Judge Sage denies that he has been prejudiced by the
allegations of prosecutorial misconduct against Phillabaum. According to the
judge, he did nothing more than “briefly” review the motion to dismiss in order to
decide whether he should refer the matter to Judge Guckenberger. Judge Sage
avers that he has not considered or participated in any matters regarding the
allegations of misconduct against Phillabaum and has instead severed those
allegations from Johnson’s criminal case.
       {¶ 12} At the outset, I fail to understand how Phillabaum’s alleged
misconduct would prejudice the judge against the defendant.           Despite Judge



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Sage’s concerns, State v. Gillard is not applicable here. Gillard held that a trial
judge who hears ex parte evidence during a pretrial hearing that a defendant has
attempted to harm, coerce, or intimidate an opposing witness cannot be the same
judge who conducts the trial. The court was concerned that a judge who heard
inflammatory information that portrayed the defendant as “a dangerous person
and a subverter of the criminal justice system” would be unable to preside over
defendant’s trial in a fair and impartial manner. Gillard, 40 Ohio St.3d at 229,
533 N.E.2d 272. But the type of evidence of prosecutorial misconduct that would
be presented in this case does not raise the same concerns and would not affect
the defendant’s right to a fair trial in the same manner as the evidence submitted
in Gillard.
       {¶ 13} In any event, in affidavit-of-disqualification proceedings the
burden falls on the affiant to submit sufficient evidence that would support the
disqualification request. See R.C. 2701.03(B)(1) (requiring affiant to include
specific allegations of bias, prejudice, or disqualifying interest and the facts to
support those allegations).       Attorney Crehan alleges that Judge Sage has
developed a bias or prejudice against his client by having reviewed the
information contained in the motion to dismiss. But Crehan fails to identify any
specific information in the motion to dismiss that would have prejudiced the judge
against Johnson. If there are reasons why Judge Sage cannot serve fairly and
impartially in the underlying case, Crehan must explain those reasons and provide
supporting evidence as R.C. 2701.03 requires.         This requirement has been
explained in other affidavit cases. See, e.g., In re Disqualification of Mitrovich,
101 Ohio St.3d 1214, 2003-Ohio-7358, 803 N.E.2d 816, ¶ 4 (“An affidavit must
describe with specificity and particularity those facts alleged to support the claim
of bias or prejudice”); In re Disqualification of Walker, 36 Ohio St.3d 606, 522
N.E.2d 460 (1988) (vague or unsubstantiated allegations are insufficient to
establish bias or prejudice).




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       {¶ 14} Moreover, my own review of the motion to dismiss reveals no such
prejudicial information. See In re Disqualification of Solovan, 100 Ohio St.3d
1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 5 (denying affidavit of disqualification
where it was “impossible to discern” from the information in the affidavit “any
evidence of bias or prejudice”). Judge Sage was concerned with hearing evidence
that Phillabaum engaged in prosecutorial misconduct. The motion to dismiss
alleges that Phillabaum engaged in misconduct, but Judge Sage was already aware
of those allegations. The motion to dismiss also refers to Judge Guckenberger’s
findings that the grand jury did not return gun specifications in Johnson’s case.
The motion to dismiss, however, contains no evidence of any misconduct
committed by Phillabaum because Judge Guckenberger found it unnecessary to
take testimony on that issue.
       {¶ 15} In sum, it is not clear how review of the motion to dismiss would
have prejudiced Judge Sage against Johnson. On this record, no reasonable and
objective observer would have serious doubts about the judge’s impartiality. In re
Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d
1082, ¶ 8 (setting forth the proper test for disqualifying a judge).
                Defendant Johnson’s Affidavit of Disqualification
       {¶ 16} Johnson claims that Judge Sage cannot be impartial in his case due
to the judge’s close relationship with Phillabaum. According to Johnson, if he is
convicted, Judge Sage will punish him more harshly because of the judge’s
relationship with Phillabaum. In addition, Johnson believes that Judge Sage will
“hold a grudge” against his attorney because attorney Crehan may be called to
testify against Phillabaum.
       {¶ 17} “Generally, the more intimate the relationship between a judge and
a person who is involved in a pending proceeding, the more acute the concern that
the judge may be tempted to depart from the expected judicial detachment or to
reasonably appear to have done so.” In re Disqualification of Shuff, 117 Ohio



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St.3d 1230, 2004-Ohio-7355, 884 N.E.2d 1084, ¶ 6. And disqualification is
appropriate where a judge has significant personal or professional connections to
one of the parties, In re Disqualification of Celebrezze, 105 Ohio St.3d 1241,
2004-Ohio-7360, 826 N.E.2d 301, or enjoys a close relationship with or holds
particularly strong emotional ties to a person involved in an action before the
judge, In re Disqualification of Nadel, 47 Ohio St.3d 604, 546 N.E.2d 926 (1989).
       {¶ 18} The affidavit in this case, however, does not provide convincing
proof that Judge Sage’s disqualification is justified. Judge Sage has severed the
allegations of misconduct against Phillabaum from Johnson’s underlying criminal
case. Thus, Phillabaum is not involved in any proceedings before Judge Sage.
Moreover, there is no evidence before me that Judge Sage and Phillabaum share
any close friendship or social relationship or have strong emotional ties.
       {¶ 19} As to the fact that Phillabaum previously served as the prosecutor
assigned to Judge Sage’s courtroom, Johnson has not shown that this prior
professional relationship requires the judge’s disqualification. A judge will not be
disqualified based on the mere existence of a professional relationship with a
person involved in a pending action, absent some evidence that the judge’s
relationship will affect the judge’s consideration of the case.          See In re
Disqualification of Koch, 113 Ohio St.3d 1220, 2006-Ohio-7228, 863 N.E.2d 624
(disqualification of entire county bench is not warranted where county prosecutor
and assistant prosecutors may be called as witnesses); In re Disqualification of
Russo, 127 Ohio St.3d 1232, 2009-Ohio-7201, 937 N.E.2d 1021 (disqualification
of judge not required where defendant was a nonjudicial employee of the same
court as the judge); In re Disqualification of Economus, case No. 87-AP-059
(Sept. 8, 1987) (an existing friendship between judge and assistant prosecutor
does not mandate judge’s disqualification from cases handled by that assistant
prosecutor); and In re Disqualification of Celebrezze, 74 Ohio St.3d 1231, 657
N.E.2d 1341 (1991) (disqualification of judge not warranted where another judge




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who served on the same court but in a different division was a party and potential
witness). Here, Johnson’s claims that Judge Sage will hold a grudge against
defense counsel and impose a harsher sentence are speculative and based entirely
on Johnson’s own subjective beliefs. But Johnson’s subjective beliefs alone are
not sufficient to support his affidavit of disqualification.           See In re
Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d
1082, ¶ 7.
        {¶ 20} “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.” In re Disqualification of George, 100 Ohio St.3d 1241, 2003-
Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been overcome in
this case.
        {¶ 21} Accordingly, the affidavits of disqualification are denied. The case
may proceed before Judge Sage.
                            ______________________




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