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

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 DefendantAppellant. 

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. 
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Case No. 19 MA 0079

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 
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Case No. 19 MA 0079

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 
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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 
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Case No. 19 MA 0079

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. 
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Case No. 19 MA 0079

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 
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Case No. 19 MA 0079

judgment impossible.” State v. Power, 7th Dist. Columbiana No. 12 CO 14, 2013-Ohio4254, ¶ 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. 
[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.