[Cite as State v. Hoskins, 2014-Ohio-3639.]
IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2013 CA 78
v. : T.C. NO. 13CRB2225,
13CRB2226, 13CRB2362,
WILLIAM C. HOSKINS : 13CRB2363, 13CRB2364
13CRB2365, 13CRB2366
Defendant-Appellant :
(Criminal Appeal from
: Municipal Court)
:
..........
OPINION
Rendered on the 22nd day of August , 2014.
..........
RONALD C. LEWIS, Atty. Reg. No. 0061980, Prosecuting Attorney, 101 N. Detroit Street,
Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
JEFFREY R. McQUISTON, Atty. Reg. No. 0027605, 130 W. Second Street, Suite 1818,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
..........
FROELICH, P.J.
[Cite as State v. Hoskins, 2014-Ohio-3639.]
{¶ 1} William C. Hoskins was found guilty on his no contest pleas in the
Xenia Municipal Court to domestic violence (Case No. 13CRB2225) and two counts of
violating a protection order (Case Nos. 13CRB2362 & 13CRB2365). The trial court
imposed an aggregate sentence of 180 days in jail, part of which was suspended on the
condition that he successfully complete three years of community control and have no
similar violations within five years.
{¶ 2} Hoskins appeals from the trial court’s judgments, claiming that the trial
judge should have recused himself and that his trial counsel rendered ineffective assistance
by not filing an affidavit of disqualification. For the following reasons, the trial court’s
judgments will be affirmed.
I. Procedural History
{¶ 3} On November 5, 2013, Hoskins was charged with misdemeanor domestic
violence and assault in Case No. 13CRB2225. The same day, he was separately charged
with possession of a controlled substance. (Case No. 13CRB2226).
{¶ 4} On November 6, Hoskins was brought before the Court on Case No.
13CR2225, at which time Hoskins stated that he was pleading not guilty and that he wanted
to speak with a lawyer. The trial court notified Hoskins that the complainant had requested
a protection order against him; Hoskins agreed to the protection order. The trial court set
bond at $25,000.
{¶ 5} Hoskins was concerned by the amount of the bond, and he asked the court
whether the bond could be lowered. The court responded that there were “serious
allegations” and it believed the bond “was appropriate.” Hoskins replied, “Does it have
anything to do with her [the complainant] being your godchild?” Hoskins explained that
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the complainant had told him that the judge was her godfather. Hoskins indicated that he
was planning to file a motion for a new judge. The court responded to Hoskins’s concerns,
stating:
THE COURT: Okay. You’ve raised an issue of whether I set your
bond because she’s my godchild. Okay. I want to respond to that, okay?
THE DEFENDANT: Okay.
THE COURT: She is not my godchild. Since you said that, I’m
assuming I know who you’re talking about. When she – when [she] was
little, her parents – her mom and dad were friends of my wife and I.
THE DEFENDANT: Uh-huh.
THE COURT: In their will, in her parents’ will, they put that if
something would happen to the parents and their daughters – and their
daughters were minors, that they wanted us to be appointed their legal
guardians.
THE DEFENDANT: That’s what a godparent is, sir.
THE COURT: That never happened, but at least I know now who
you’re talking about. But the answer to your question is no, the bond is not
being set because of who the victim is. The bond is being set because of
serious allegations against you.
{¶ 6} A pretrial conference was held on November 18, 2013. At that time, the
court explained in further detail that he had gone to high school with the complainant’s
father and lived across the street from the complainant’s parents while he (the judge) was in
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law school. The judge stated that, at that time, he had arranged for an attorney to write a
will for the complainant’s parents to thank the complainant’s father for spending hours
helping to repair the judge’s car. In the will, the judge and his wife agreed to be legal
guardians of the parents’ four minor daughters, if necessary. The court explained that he
and his wife moved a year or two later and, since then, he would “run into” the
complainant’s family “every now and then.” He last recalled seeing the complainant on her
eighteenth birthday, when he ran into her family at a dinner theater. The judge believed that
his last contact with the complainant occurred approximately fifteen years prior to the events
at issue. The judge explained that he had not had a close relationship with the complainant
or her family for many years.
{¶ 7} On November 20, 2013, Hoskins was charged with five incidents of
violating the protection order that the complainant obtained against him. The charges were
based on five telephone calls that he made from jail. (Case Nos. 13CRB2362, 13CRB2363,
13CRB2364, 13CRB2365, and 13CRB2366).
{¶ 8} On November 21, 2013, the date of the scheduled jury trial for the domestic
violence and assault charges, Hoskins entered no contest pleas to domestic violence and two
counts of violating a protection order (Case Nos. 13CRB2362 & 13CRB2365). As part of
the plea, the assault charge, possession charge, and the three remaining protection order
charges were dismissed. In addition, the State agreed to forego filing two additional
complaints alleging violations of the protection order. The trial court found Hoskins guilty
of domestic violence and two violations of the protection order, and sentenced him
accordingly.
[Cite as State v. Hoskins, 2014-Ohio-3639.]
{¶ 9} Although Hoskins orally expressed his concerns about the trial judge
presiding over his case, he did not file a motion for recusal with the trial court during the
pendency of his case, and his counsel never filed an affidavit of disqualification with the
clerk of the municipal court, as required by the then-existing version of R.C. 2701.031.
{¶ 10} Hoskins appeals from the trial court’s judgments, raising two assignments of
error.
II. Failure to Recuse
{¶ 11} Hoskins’s first assignment of error states:
THE TRIAL JUDGE ERRED BY FAILING TO RECUSE HIMSELF
FOLLOWING AN ORAL REQUEST FOR RECUSAL BY DEFENDANT.
{¶ 12} R.C. 2701.031 sets forth the procedure for seeking the disqualification of a
municipal court or county court judge for prejudice. At the time of Hoskins’s proceedings
in the municipal court, that statute required the party seeking disqualification to file an
affidavit of disqualification with the clerk of the court in which the proceeding was pending,
which in this case was the municipal court.1 Former R.C. 2701.031(A). (The timing of the
filing of the affidavit of disqualification and the required contents of the affidavit were
specified in R.C. 2701.031(B).) Former R.C. 2701.031(C) required the clerk to enter the
fact of the filing on the docket in that proceeding and provide notice of the filing of the
affidavit of disqualification to the presiding judge of the common pleas court of that county
1
Effective July 10, 2014, R.C. 2701.031 requires an affidavit of
disqualification to be filed with the clerk of the Ohio Supreme Court, and the
requirements for filing and deciding an affidavit of disqualification for common
pleas court judges now apply to municipal court and county court judges. R.C.
2701.031; see R.C. 2701.03.
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or, if there was no presiding judge, to a judge of the court of common pleas. With certain
exceptions, if the affidavit of disqualification was properly filed and accepted by the clerk,
the affidavit deprived the judge against whom the affidavit was filed of any authority to
preside in the proceeding until the common pleas judge who was notified of the affidavit
ruled on the affidavit. Former R.C. 2701.031(D).
{¶ 13} We have held that the statutory procedure set forth in R.C. 2701.031
“provides the exclusive means by which a litigant may claim that a municipal court judge is
biased and prejudiced.” Walker v. J.W. Automotive, 2d Dist. Montgomery No. 18683, 2001
WL 726803, *3 (June 29, 2001); Ebbets Partners Ltd. v. Day, 2d Dist. Montgomery No.
19748, 2003-Ohio-4425, ¶ 20. Accord, e.g., State v. Cook, 2d Dist. Champaign No. 2013
CA 22, 2014-Ohio-3165, ¶ 13 (R.C. 2701.03 provides the exclusive means to seek
disqualification of a common pleas court judge). Hoskins did not seek the trial judge’s
disqualification using the procedures set forth in R.C. 2701.031. Both parties cite to the
Code of Judicial Conduct, but allegations of judicial misconduct are not cognizable on
appeal; an appellate court lacks authority to pass on the disqualification of a trial judge.
See, e.g., Easterling v. Hafer, 2d Dist. Montgomery No. 24950, 2012-Ohio-2101, ¶ 9 (“A
court of appeals does not have authority to rule on the disqualification of the trial judge or to
void a judgment of the trial court on that basis.”), citing Beer v. Griffith, 54 Ohio St.2d 440,
441-442, 377 N.E.2d 775 (1978). Accordingly, we cannot review the issue of the trial
judge’s alleged bias and prejudice.
{¶ 14} Hoskins’s first assignment of error is overruled.
III.
[Cite as State v. Hoskins, 2014-Ohio-3639.]
{¶ 15} Hoskins’s second assignment of error states:
DEFENDANT WAS PREJUDICED FOR THE REASON THAT HIS
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE AN
AFFIDAVIT OF PREJUDICE AGAINST THE TRIAL JUDGE.
{¶ 16} To reverse a conviction based on ineffective assistance of counsel, an
appellant must demonstrate both that trial counsel’s conduct fell below an objective standard
of reasonableness and that the errors were serious enough to create a reasonable probability
that, but for the errors, the result of the trial would have been different. Strickland v.
Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42
Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption
that his or her conduct falls within the wide range of reasonable assistance. Strickland, 466
U.S. at 688. Hindsight is not permitted to distort the assessment of what was reasonable in
light of counsel’s perspective at the time, and a debatable decision concerning trial strategy
cannot form the basis of a finding of ineffective assistance of counsel. State v. Cook, 65
Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v. Rucker, 2d Dist. Montgomery No.
24340, 2012-Ohio-4860, ¶ 58.
{¶ 17} On the record before us, we cannot conclude that Hoskins’s counsel acted
deficiently when he failed to file an affidavit of disqualification under R.C. 2701.031.
Defense counsel heard the trial judge’s detailed description of his association with the
complainant’s family. The judge’s explanation indicated that he had not seen the
complainant’s family on any regular basis since the complainant was a small child. He
described their occasional contacts since then as “running into each other.” The trial judge
did not recall seeing the complainant since her 18th birthday (approximately 15 years ago)
8
when he happened to encounter the complainant’s family at a dinner theater; at that time, the
will’s provision for nominating a guardian was moot. Based on the judge’s explanation,
defense counsel reasonably may have determined that obtaining disqualification of the trial
judge under R.C. 2701.031 was unlikely. Accordingly, counsel’s failure to file an affidavit
of disqualification falls within the wide range of reasonable professional assistance. See
State v. Hall, 2d Dist. Montgomery No. 25858, 2014-Ohio-416, ¶ 8.
{¶ 18} In addition, nothing in the record suggests a reasonable probability – and
Hoskins does not argue – that the outcome of Hoskins’s cases would have been different
had the trial judge been disqualified and another judge presided over the plea hearing and
sentencing. The record contains photographs of the complainant after the domestic violence
incident; both eyes were blackened, and her nose was reportedly broken. On the
first-degree misdemeanor domestic violence charge, Hoskins received a jail term of 180
days, 90 days of which were suspended, and he received jail time credit for 17 days. The
trial court sentenced Hoskins to 180 days in jail for the violations of the protection orders, all
of which were suspended. None of these sentences is facially unreasonable, particularly
given the possible sentences that Hoskins faced and the number of charges that were
dismissed.
{¶ 19} Hoskins’s second assignment of error is overruled.
IV. Conclusion
{¶ 20} The trial court’s judgments will be affirmed.
..........
DONOVAN, J. and HALL, J., concur.
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Copies mailed to:
Ronald C. Lewis
Jeffrey R. McQuiston
Hon. Michael K. Murry