[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 : 

 . . . . . . . . . 

 O P I N I O N

 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. 
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{¶ 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. 
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{¶ 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.” 
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{¶ 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. 
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{¶ 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 
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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. 
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{¶ 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 
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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 
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