[Cite as State v. Tinker, 2020-Ohio-3148.]




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

                                             STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                       DEMETRIUS TINKER,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No. 19 MA 0079


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                    Case No. 18 CR 1168

                                         BEFORE:
                 David A. D’Apolito, Gene Donofrio, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                  Affirmed.


 Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, Assistant
 Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
 for Plaintiff-Appellee and

 Atty. Cynthia Henry, P.O. Box 4332, Youngstown, Ohio 44515, for Defendant-
 Appellant.
                                                                                     –2–


                                 Dated: May 29, 2020
 D’Apolito, J.

      {¶1}   Appellant Demetrius Tinker appeals his conviction and sentence by the
Mahoning County Court of Common Pleas following his guilty plea for one count of
burglary in violation of R.C. 2911.12(A)(2)(D), a felony of the second degree. He argues
that his plea was not knowingly, intelligently, and voluntarily entered, because the trial
court did not inform him of the elements of the crime at the plea hearing. He further
argues that his sentence was the result of judicial bias. Because Appellant acknowledged
in his signed plea agreement and at the plea hearing that he understood the elements of
his crime, and as claims of judicial bias are the sole province of the Ohio Supreme Court,
Appellant’s conviction and sentence are affirmed.
      {¶2}   Appellant was indicted for one single count of burglary on December 27,
2018. On February 6, 2019, Appellant entered into a written plea agreement with the
state, in which the state agreed to recommend a sentence of six years, and Appellant
reserved the right to argue for a lesser sentence. At the sentencing hearing, the state
explained that an offer of an agreed sentence of four years was rejected by Appellant,
despite the fact that Appellant had been made aware that the state intended to
recommend a six-year sentence.
      {¶3}   According to statements made at the sentencing hearing, Appellant
burglarized the residence of an 89-year-old woman, who saw him enter her home through
a side door that leads into her kitchen. The victim’s purse was on the kitchen table
because she had just returned from daily mass. Appellant took the purse from the kitchen
table and fled through the same side door.
      {¶4}   The victim followed Appellant and observed him entering a neighbor’s
residence located on the opposite side of the street. The victim returned to her home,
called the police, and provided both a description of Appellant and his last known
whereabouts. Another neighbor provided the same information to the police.
      {¶5}   When the police arrived and knocked at the door of the residence where
Appellant was last seen, a female occupant told them that she was alone in the house.
After some conversation, she admitted that Appellant was also in the house. When the
police entered the residence, Appellant admitted to burglarizing the victim’s home and


Case No. 19 MA 0079
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taking her purse, which was recovered intact. The female occupant, who was Appellant’s
girlfriend, was later charged with obstruction of justice for initially misleading law
enforcement.
       {¶6}    Although Appellant had no felony record at the time of sentencing, he had
a lengthy misdemeanor record, including theft, obstruction, disorderly conduct, petty theft,
and possession of drug paraphernalia. Appellant’s counsel requested a community
control sanction, which included drug rehabilitation, based on Appellant’s long-standing
struggle with drug addiction.
       {¶7}    Appellant’s counsel explained that Appellant’s “whole life [had] been a
period of being clean then relapsing, and he is somebody that, absent his addiction, he
probably would not have a criminal history.” (Sentencing Hrg., p. 7.) Appellant, who was
a trustee at the jail, expressed remorse for his actions, which he characterized as a
mistake. At the end of his allocution, Appellant asked for a second chance.
       {¶8}    Unmoved, the trial court observed that “burglary of an elderly person * * * is
the worst thing that you can do short of killing somebody.” (Id., p. 9.) The trial court
further observed that a person’s home is the one place where that person should feel safe
and secure. Prior to imposing the sentence, the trial court stated:

       In my day, as a bailiff and a lawyer, that was a penalty for which you could
       get three, four -- two, three, four, or five to fifteen years. And that’s what the
       crime should be. It’s something that people should spend a long time in the
       penitentiary for. Burglary ain’t a mistake like you characterize it. * * * So
       now when this woman comes home at night, she either has to have a dog
       or a flashlight or a gun or a friend or a cop or somebody or something with
       her so that she can defend herself against who the next person [sic] might
       be breaking into her house. There may never be another person. It may
       be the boogieman, but in her mind somebody’s in that house. She’ll never
       know for sure. She’s always got to wonder if somebody’s waiting behind
       the door.

(Id., p. 10-11.) Later in the sentencing hearing, the trial court informed Appellant that “[i]f
[Appellant] broke into [the trial judge’s residence], [the trial judge] would shoot


Case No. 19 MA 0079
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[Appellant.]” (Id., p. 14.)

       {¶9}    The trial court imposed a six-year sentence, which is within the range of
sentences for a second-degree felony. This timely appeal followed.

                              ASSIGNMENT OF ERROR NO. 1

THE APPELLANT’S PLEA WAS NOT KNOWINGLY, VOLUNTARILY, AND
INTELLIGENTLY MADE.

       {¶10} Guilty pleas are governed by Crim.R. 11. Pursuant to Crim.R. 11(C)(2), the
trial judge must engage in a colloquy with a defendant to review the rights that the
defendant is waiving as a result of the guilty plea, and the consequences of the plea. “The
underlying purpose, from the defendant’s perspective, of Crim.R. 11(C) is to convey to
the defendant certain information so that he can make a voluntary and intelligent decision
whether to plead guilty.” State v. Rowbotham, 173 Ohio App.3d 642, 2007-Ohio-6227,
879 N.E.2d 856, ¶ 17 (7th Dist.), citing State v. Ballard, 66 Ohio St.2d 473, 479-480, 423
N.E.2d 115 (1981).
       {¶11} As part of the colloquy, the trial court is required to advise the defendant of
certain constitutional and nonconstitutional rights. The constitutional rights are outlined in
Crim.R. 11(C)(2) and include: the right to a jury trial, to confront witnesses against him,
have a compulsory process for obtaining witnesses in his favor, and require the state to
prove all elements beyond a reasonable doubt at a trial where the defendant cannot be
compelled to testify against himself. State v. Bell, 7th Dist. Mahoning No. 14 MA 0017,
2016-Ohio-1440, ¶ 9, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897
N.E.2d 621, ¶ 19-21; Ballard, supra, at 477. The trial court must strictly comply with
informing the defendant of these requirements; if it fails to strictly comply, the defendant’s
plea is invalid. Bell at ¶ 9, citing Veney at ¶ 31; Ballard at 477.
       {¶12} The trial court must also advise a defendant of his nonconstitutional rights:
the nature of the charges; the maximum penalty the defendant is subject to, including
postrelease control, if applicable; whether the defendant is eligible for probation or
community control sanctions; and that a trial court may immediately proceed to
sentencing after the plea is accepted. Bell at ¶ 10. Unlike the information required


Case No. 19 MA 0079
                                                                                        –5–


regarding constitutional rights, a trial court need only substantially comply with these
requirements. Id. “Substantial compliance means that under the totality of the
circumstances the defendant subjectively understands the implications of his plea and
the rights he is waiving.” Bell at ¶ 10, citing Veney at ¶ 15.
       {¶13} A complete failure to advise of one of the non-constitutional rights requires
the vacation of the plea without an analysis of prejudice. State v. Cruz-Ramos, 7th Dist.
Mahoning No. 17 MA 0077, 2019-Ohio-779, 132 N.E.3d 170, ¶ 11. However, if the court's
advisement on a non-constitutional right is considered partial compliance with the rule,
then the plea cannot be vacated unless the defendant demonstrates prejudice. Id.
       {¶14} Civ.R. 11(C)(2)(a) provides only that the court shall determine that the
defendant has an understanding of the nature of the charges. It does not require a verbal
explanation by the court, but merely for the court to be satisfied that the defendant in fact
understands the charges. Id. We have repeatedly recognized that a defendant can obtain
the actual elements of the charged offense from “whatever source, be it the trial court, the
prosecutor, or some other source.” State v. Harris, 7th Dist. Mahoning No. 08 MA 0030,
2008-Ohio-6298, ¶ 22, citing State v. Johnson, 7th Dist. Mahoning No. 07 MA 0008, 2008-
Ohio-1065, ¶ 8.
       {¶15} Appellant’s signed plea agreement reads, in pertinent part, “COUNSEL
HAS ADVISED ME AND I FULLY UNDERSTAND THE NATURE OF THE CHARGE(S)
AGAINST ME AND THE ELEMENTS CONTAINED THEREIN.”                             (2/6/2019 Plea
Agreement, p. 1.) At the plea hearing, the trial court inquired, “Do you understand the
nature of the charge and all the elements contained within it?” Appellant responded, “Yes,
sir.” (2/6/19 Plea Hrg., p. 3.)
       {¶16} In State v. Johnson, supra, we recognized the validity of a guilty plea where
the plea agreement contained the identical averment quoted above. Id. at ¶14-15.
Appellant cites Johnson, supra, but contends in error that “Appellant [ ] did not sign a
document stating that his attorney advised him and he fully understood the nature of the
charge and the elements of those charges.” (Appellant’s Brf., p. 8.) Because Appellant’s
first assignment of error is based on an incorrect factual argument, and the
acknowledgement in the plea agreement is identical to the acknowledgement in the plea
agreement in Johnson, supra, we find that the first assignment of error has no merit.



Case No. 19 MA 0079
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                               ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT WAS BIASED AGAINST THE APPELLANT AND
DEPRIVED HIM OF A FAIR SENTENCING HEARING.

       {¶17} 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).
Judicial bias is defined as:

       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 facts.

State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414, ¶ 33 (2016),
quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956),
paragraph four of the syllabus.

       {¶18} 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.
State v. Baker, 7th Dist. Belmont No. 18 BE 0018, 2019-Ohio-1807, ¶ 13, citing 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.” Id. citing 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).
       {¶19} Even assuming that Appellant’s bias claim was properly before us, the trial
court did not demonstrate bias against Appellant. We have recognized that “opinions
formed by the judge on the basis of facts in the record do not constitute a basis for a bias
or partiality motion unless they display a deep[-]seated antagonism that would make fair



Case No. 19 MA 0079
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judgment impossible.” State v. Power, 7th Dist. Columbiana No. 12 CO 14, 2013-Ohio-
4254, ¶ 26, citing State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶
49.
       {¶20} We further observed in Power that “critical, disapproving, or even hostile
statements ordinarily do not support a bias or partiality challenge”. Id. We cited with favor
cases from other districts holding that reversible error has not occurred where a
sentencing judge, in explaining his sentence, makes critical statements about a
defendant’s conduct based upon the facts of the case presented to the court. Id. at ¶ 27,
citing State v. Cemino, 2d Dist. Montgomery No. 24442, 2011-Ohio-5690, ¶ 8, 18-20
(scolding defendant and characterizing what he did as nasty, despicable, disgusting, and
awful was not indicative of bias); and State v. Coomer, 12th Dist. Clinton Nos. CA2009-
09-016, CA2009-09-017, 2010-Ohio-3474, ¶ 18 (trial court’s statement that the defendant
was a psychopath may have been ill-advised, but it was not reversible).
       {¶21} Here, the trial court’s sentence was based on the underlying circumstances
of the crime, particularly the age of the victim, rather than any apparent bias against
Appellant. The record reflects that the sentence imposed was based on the law and the
facts adduced at the sentencing hearing.
       {¶22} In summary, the Chief Justice of the Supreme Court has exclusive
jurisdiction in regard to judicial disqualification, and, therefore, we find that the second
assignment of error was improperly raised here. Even assuming arguendo that we have
the authority to consider the claim, we find that no evidence of bias against Appellant is
in the record.

                                      CONCLUSION

       {¶23} For the foregoing reasons, we find that Appellant’s guilty plea was knowing,
intelligent, and voluntary, and that the claim of bias was not properly raised. Accordingly,
Appellant’s conviction and sentence are affirmed.



Donofrio, J., concurs.

Robb, J., concurs.



Case No. 19 MA 0079
[Cite as State v. Tinker, 2020-Ohio-3148.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be 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.
