[Cite as In re Disqualification of Winkler, 135 Ohio St.3d 1271, 2013-Ohio-890.] 

IN RE DISQUALIFICATION OF WINKLER. 

THE STATE OF OHIO v. CAMPBELL. 

[Cite as In re Disqualification of Winkler, 135 Ohio St.3d 1271, 

2013-Ohio-890.] 

Judges—Affidavit of disqualification—R.C. 2701.03—Judge’s remarks at affiant’s 

sentencing hearing conveyed appearance of bias or prejudice—

Reasonable, objective observer might conclude that judge was hostile to 

affiant—Affidavit granted—Judge disqualified from resentencing.

(No. 12-AP-136—Decided February 6, 2013.) 

ON AFFIDAVIT OF DISQUALIFICATION in Hamilton County Court of Common Pleas 

Case No. B-0808031. 

__________________ 

O’CONNOR, C.J. 

{¶ 1} William A. Campbell, defendant in the underlying proceeding, has 

filed an affidavit with the clerk of this court under R.C. 2701.03 seeking to 

disqualify Judge Ralph E. Winkler from presiding over any further proceedings in 

case No. B-0808031, pending for a resentencing hearing in the Court of Common 

Pleas of Hamilton County. 

{¶ 2} Campbell alleges that Judge Winkler should be disqualified from 

resentencing him because Judge Winkler made “biased and prejudiced” 

comments about Campbell at his initial sentencing. In addition, Campbell claims 

that Judge Winkler voluntarily recused himself from another proceeding 

involving Campbell, which demonstrates that the judge “felt he was biased and 

prejudiced toward” Campbell. Campbell further asserts that Judge Winkler has 

put him through “undue hardship” by failing to timely and properly rule on his 
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postconviction petition and ruling only after Campbell had filed a complaint for a 

writ of mandamus against the judge. 

{¶ 3} Judge Winkler has responded in writing to the concerns raised in 

Campbell’s affidavit. Judge Winkler denies any bias or prejudice against 

Campbell and explains that all of his comments about Campbell were based on 

evidence in the trial court record and presentence-investigation (“PSI”) report. As 

the trial court judge, Judge Winkler believes that he is uniquely qualified to 

resentence Campbell and that any newly assigned judge would be required to read 

the court record to properly resentence him. Judge Winkler acknowledges that he 

recused himself from another proceeding involving Campbell, but he claims that 

he did so “out of fairness” and “to give [Campbell] a fresh start with a different 

Judge.” Finally, Judge Winkler believes that Campbell is biased and prejudiced 

against him and the justice system and that Campbell treated him and court staff 

with “disdain and a lack of respect” during the trial court proceedings. 

{¶ 4} Campbell’s affidavit is well taken—not because Campbell has 

proven that Judge Winkler is personally biased or prejudiced against him, but 

because the circumstances here indicate that the judge’s removal is necessary to 

“avoid even an appearance of bias, prejudice, or impropriety, and to ensure the 

parties, their counsel, and the public the unquestioned neutrality of an impartial 

judge.” In re Disqualification of Floyd, 101 Ohio St.3d 1215, 2003-Ohio-7354, 

803 N.E.2d 816, ¶ 10. 

Background

{¶ 5} In 2009, a jury convicted Campbell of operating a vehicle under 

the influence of alcohol (“OVI”) and two counts of aggravated vehicular 

homicide: one count for OVI-based aggravated vehicular homicide and the other 

count for recklessness-based aggravated vehicular homicide. The jury acquitted 

Campbell on a charge of failing to comply with an order or signal of a police 
January Term, 2013 

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officer. Judge Winkler imposed consecutive prison terms for each offense. See 

State v. Campbell, 1st Dist. No. C-090875, 2012-Ohio-4231, 978 N.E.2d 970, ¶ 2. 

{¶ 6} At sentencing, Judge Winkler made the following comments: 

I have had many jury trials over the years, and I have seen 

many jury trials worked in the courthouse since 1983. I would 

have to say that none of those trials – you were the most guilty 

person I have ever seen, so you are free to say you are not guilty. 

Ludicrous. 

* * * 

* * * The evidence indicated, pointed toward your total 

guilt on all the charges that you were found guilty of and actually 

pointed to your guilt on the charge that you were found not guilty 

of. So you were probably guilty of the count that the jury let you 

go on from the evidence I heard. 

* * * 

He has offenses of violence and a plethora of prior 

convictions showing he isn’t just a drunk driver, that he is a mean 

person that assaults people and beats people up and bothers people 

and he has been pretty much a pestilence on society his whole life. 

From what I can tell, he hasn’t done much more than take 

up space and breathe oxygen. I can’t find one good thing he has 

done in the PSI or one thing in his favor as a human being. 

So with that in mind, I will pass a sentence based upon his 

life’s work as a criminal, and I will pass a sentence based upon 

how he behaved in this case. He is a poster boy for DUI 

defendants, as far as I’m concerned. And people like Mr. 

Campbell prove to me for organizations like Mothers Against 
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Drunk Driving, he, through his life, has been a road terrorist who 

can’t stop drinking and driving and hurting people. 

* * * [T]his case calls for the maximum sentence possible 

under the law and I will pass gladly that sentence upon the 

defendant at this time. 

* * * 

The defendant must serve his actual term of 28 years in 

prison and not leave a day earlier than 28 years. 

{¶ 7} Campbell unsuccessfully challenged his convictions in direct 

appeals to the appeals court and this court. But in February 2012, the appeals 

court granted Campbell’s motion to reopen his direct appeal, and in September 

2012, the appeals court vacated his sentences for the two counts of aggravated 

vehicular homicide, holding that they were allied offenses of similar import. The 

prosecution conceded that the trial court had erred in sentencing Campbell for the 

two charges.1

 The appeals court remanded the case to Judge Winkler for 

resentencing, which he has not yet scheduled. 

Waiver 

{¶ 8} In deciding previous affidavit-of-disqualification cases, the chief 

justice has explained that a party may be considered to have waived its objection 

to the judge when “the objection is not raised in a timely fashion and the facts 

underlying the objection have been known to the party for some time.” In re 

Disqualification of O’Grady, 77 Ohio St.3d 1240, 1241, 674 N.E.2d 353 (1996). 

Here, Campbell knew about Judge Winkler’s comments since his 2009 sentencing 

hearing, but he did not file the affidavit of disqualification until December 2012. 

 

1. The appeals court rejected Campbell’s additional claim that the OVI was an allied offense of 

either aggravated-vehicular-homicide conviction. Campbell, 2012-Ohio-4231, 978 N.E.2d 970, at 

¶ 15. 
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However, during that time period, Campbell’s various appeals were pending in 

the appeals court and this court, and the appeals court did not vacate his sentences 

and remand the matter for resentencing until September 2012. Thus, despite the 

fact that some of the alleged prejudicial conduct occurred years ago, Campbell 

has not waived his right to file this affidavit because he has only recently learned 

that the matter has returned to Judge Winkler for resentencing. 

Analysis

{¶ 9} Because a sentencing judge must ordinarily explain the reasons for 

imposing a sentence, judicial comments during sentencing, even if disapproving, 

critical, or heavy-handed, do not typically give rise to a cognizable basis for 

disqualification. See Flamm, Judicial Disqualification, Section 16.4, 450-463 (2d 

Ed.2007). As other courts have explained, “ ‘[i]t is the court’s prerogative, if not 

its duty, to assess the defendant’s character and crimes at sentencing, after * * * 

guilt has been decided.’ ” (Brackets and ellipsis sic.) Connecticut v. Rizzo, 303 

Conn. 71, 128-129, 31 A.3d 1094 (2011), quoting United States v. Pearson, 203 

F.3d 1243, 1278 (10th Cir.2000). “Furthermore, ‘to a considerable extent a 

sentencing judge is the embodiment of public condemnation and * * * [a]s the 

community’s spokesperson * * * can lecture a defendant as a lesson to that 

defendant and as a deterrent to others.’ ” (Brackets and ellipses sic.) Id. at 129, 

quoting United States v. Bakker, 925 F.2d 728, 740 (4th Cir.1991). As the United 

States Supreme Court has explained: 

The judge who presides at trial may, upon completion of 

the evidence, be exceedingly ill disposed towards the defendant, 

who has been shown to be a thoroughly reprehensible person. But 

the judge is not thereby recusable for bias or prejudice, since his 

knowledge and the opinion it produced were properly and 

necessarily acquired in the course of the proceedings, and are 
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indeed sometimes (as in a bench trial) necessary to completion of 

the judge’s task. 

Liteky v. United States, 510 U.S. 540, 550-551, 114 S.Ct. 1147, 127 L.Ed.2d 474 

(1994). Accordingly, a trial judge’s harsh comments to a defendant during 

sentencing will not ordinarily lead to disqualification. 

{¶ 10} Nonetheless, in previous affidavit-of-disqualification proceedings 

under R.C. 2701.03, the chief justice has also explained that if a judge’s words or 

actions convey the impression that the judge has developed a “ ‘hostile feeling or 

spirit of ill will,’ ” or if the judge has reached a “ ‘fixed anticipatory judgment’ ” 

that will prevent the judge from hearing the case with “ ‘ an open state of mind 

* * * governed by the law and the facts,’ ” then the judge should not remain on 

the case. In re Disqualification of Hoover, 113 Ohio St.3d 1233, 2006-Ohio7234, 863 N.E.2d 634, ¶ 7, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 

463, 469, 132 N.E.2d 191 (1956) (setting forth the definition of bias and 

prejudice). Further, Jud.Cond.R. 2.8(B) mandates that judges be “patient, 

dignified, and courteous” towards litigants. Thus, a judge, “notwithstanding the 

conduct of litigants or counsel, has an ethical obligation to conduct himself or 

herself in a courteous and dignified manner that does not convey the appearance 

of bias or prejudice toward litigants or their attorneys.” In re Disqualification of 

Cleary, 88 Ohio St.3d 1220, 1222-1223, 723 N.E.2d 1106 (2000), citing Canon 

3(B)(4) and (5) of the former Code of Judicial Conduct (superseded by Canon 2, 

effective Mar. 1, 2009). 

{¶ 11} Here, Judge Winkler’s comments have crossed the line between 

acceptable sentencing comments about a defendant’s character and comments that 

convey the appearance of bias or prejudice. “The proper test for determining 

whether a judge’s participation in a case presents an appearance of impropriety 

is * * * an objective one. A judge should step aside or be removed if a reasonable 
January Term, 2013 

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and objective observer would harbor serious doubts about the judge’s 

impartiality.” In re Disqualification of Lewis, 117 Ohio St.3d 1227, 2004-Ohio7359, 884 N.E.2d 1082, ¶ 8. Judge Winker’s descriptions of Campbell might 

reasonably cause an objective observer to question whether he has developed 

hostile feelings toward Campbell and whether he may be able to weigh fairly and 

impartially any arguments Campbell may offer on resentencing. Similarly, an 

objective observer who has read the affidavit and the judge’s response might 

reasonably question whether Judge Winkler can now set aside his seemingly fixed 

views about Campbell and resentence him according to the law and facts. 

{¶ 12} In addition, other unique facts in the record support the conclusion 

that an appearance of impropriety exists. For example, Judge Winkler’s response 

to the affidavit shows no recognition that a reasonable person may view his 

comments as undignified or derogatory. Had Judge Winkler acknowledged that 

his statements were harsh, but still affirmed his ability to impartially resentence 

Campbell, the outcome here may have been different. Instead, Judge Winkler’s 

response suggests that he is not able to view his conduct objectively. In addition, 

Judge Winkler failed to respond to Campbell’s allegations regarding the judge’s 

refusal to timely and properly rule on Campbell’s postconviction petition. See, 

e.g., In re Disqualification of Floyd, 101 Ohio St.3d 1215, 2003-Ohio-7354, 803 

N.E.2d 816, ¶ 9 (“the statements sworn to by the affiant, and unchallenged by the 

judge, could suggest to a reasonable person the appearance of impropriety”). 

{¶ 13} Accordingly, on this record, Judge Winkler’s impartiality could 

reasonably be questioned and disqualification is necessary to avoid an appearance 

of impropriety. The chief justice has followed the same course in similar cases. 

See, e.g., In re Disqualification of Crawford, 110 Ohio St.3d 1223, 2005-Ohio7156, 850 N.E.2d 724, ¶ 5 (a judge’s “vitriolic language,” among other things, 

might “cause the reasonable and uninvolved observer to question the judge’s 

ability to preside fairly and impartially over further trial proceedings”); In re 
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Disqualification of Hoover, 113 Ohio St.3d 1233, 2006-Ohio-7234, 863 N.E.2d 

634, ¶ 8 (“The judge’s own words might very well cause a reasonable and 

objective observer to wonder how and whether a judge who could pen such a 

lengthy diatribe against an attorney could later sit fairly and impartially on cases 

involving the same attorney”); In re Disqualification of Sheward, 77 Ohio St.3d 

1258, 1260, 674 N.E.2d 365 (1996) (when comments by judge reflected no actual 

bias or prejudice but could nonetheless “suggest to a reasonable person the 

appearance of prejudice,” judge was disqualified to “ensure the parties’ absolute 

confidence in the fairness” of the proceedings); In re Disqualification of 

Ruehlman, 74 Ohio St.3d 1229, 1230, 657 N.E.2d 1339 (1991) (a judge’s 

disqualification ordered “in the interest of avoiding even the appearance of any 

bias or prejudice”); In re Disqualification of Maschari, 88 Ohio St.3d 1212, 1213, 

723 N.E.2d 1101 (1999) (a unique “combination of factors” cited by the affiant is 

sufficient to create an appearance of impropriety mandating disqualification). 

{¶ 14} It is important to reiterate that Campbell has not established that 

Judge Winkler has an actual, personal bias against him, and reassignment of the 

case to a new judge does not imply that any unethical conduct occurred. 

However, the nature and extent of Judge Winkler’s comments, along with the 

other facts in the record, make it necessary to appoint a different trial judge to 

conduct the new sentencing hearing. As this court has long stated, “[i]t is of vital 

importance that the litigant should believe that he will have a fair trial.” State ex 

rel. Turner v. Marshall, 123 Ohio St. 586, 587, 176 N.E. 454 (1931). And while 

Judge Winkler is correct in stating that any newly assigned judge will be required 

to review the trial court record to properly sentence Campbell, the gain in 

preserving the appearance of propriety outweighs the countervailing 

considerations of duplicated effort. See United States v. Navarro-Flores, 628 

F.2d 1178, 1185 (9th Cir.1980). 
January Term, 2013 

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{¶ 15} For the reasons stated above, the affidavit of disqualification is 

granted, and it is ordered that Judge Ralph E. Winkler participate no further in the 

underlying proceeding. The case is returned to the administrative judge of the 

Hamilton County Court of Common Pleas for reassignment. 

{¶ 16} In addition, in accordance with R.C. 2951.03(D) and Sup.R. 45(E), 

it is ordered that Campbell’s presentence-investigation report, which was attached 

to Judge Winkler’s response to the affidavit of disqualification, shall be placed 

under seal by the clerk of this court. 

______________________