concurring.
{¶ 34} I concur in the majority judgment.
{¶ 35} My decision that the trial judge should conduct a new sentencing hearing is based, in large measure, upon the representations made to the Supreme Court of Ohio by the trial judge. More than one affidavit to disqualify the trial judge was filed in this case. In November 2006, the trial judge filed an affidavit in response, opposing disqualification. In that affidavit, the trial judge acknowledged doing the same thing in this case that he did in State v. Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, wherein the trial judge was ordered to conduct a new sentencing hearing. In his affidavit, the trial judge stated the following to the Supreme Court of Ohio:
{¶ 36} “8. It is clear from the Ohio Supreme Court’s opinion in Roberts, that the Court, even after concluding that my communications with the Assistant Prosecuting Attorneys in Roberts were not harmless error and were prejudicial error * * * did not want me to be removed from the Roberts case for the purpose of post-trial motion practice or for the purpose of re-sentencing Donna Roberts.
{¶ 37} “9. On the contrary, the Ohio Supreme Court vacated Roberts’ death sentence and remanded the case to my court expressly ordering that I remain on the case. The Court said in paragraph 167 of its opinion:
{¶ 38} “[T]he trial court shall personally review and evaluate the evidence, weigh the aggravating circumstances against any relevant mitigating evidence, and determine anew the appropriateness of the death penalty as required by R.C. 2929.03. The trial court will then personally prepare an entirely new penalty opinion as required by R.C. 2929.03(F) and conduct whatever other proceedings are required by law and consistent with this opinion.
{¶ 39} “ * * *
*327{¶ 40} “12. If, as argued by Nathaniel Jackson in his motion to disqualify me, I engaged in the same conduct determined by the Ohio Supreme Court to be prejudicial error in State v. Roberts, then, and in that event, the same result should obtain in this companion case involving Nathaniel Jackson. * * * ”
{¶ 41} Because he acknowledged doing the same thing that resulted in prejudicial error in the Roberts case, the trial judge conceded prejudicial error in Jackson’s case. And, by opposing disqualification, the trial judge implicitly represented that he could remain on the case for purposes of curing that error. Given the circumstances, it would appear that the trial judge recognized that he would be required to do the same thing he was ordered to do in Roberts, regardless of the nature of the proceedings (whether postconviction or direct appeal), if he were permitted to remain on the case.
{¶ 42} The affidavit opposing disqualification was signed by the trial judge on November 21, 2006. Chief Justice Moyer issued his ruling denying Jackson’s motion to disqualify on November 29, 2006. In assessing the trial judge’s averments, the Chief Justice observed: “The judge states that he is prepared to reconsider the evidence and impose a new sentence in this case just as he has been ordered to do in the related Roberts case.” In re Disqualification of Stuard, 113 Ohio St.3d 1236, 2006-Ohio-7233, 863 N.E.2d 636, at ¶ 4. The Chief Justice’s construction of the trial judge’s affidavit lends further credence to the position I advance. That is, by stating what he believed the trial judge was “prepared” to do, the Chief Justice seemed to anticipate that the trial judge would resentence Jackson just as he was ordered to do in Roberts, so long as he was allowed to remain on the case.
{¶ 43} Based on the holding in Roberts as well as the trial judge’s affidavit opposing disqualification filed in this case, I therefore believe that the only proper disposition of this matter is for the trial court to proceed with resentencing. For these reasons, I concur.
Trapp, P.J., concurs.