[Cite as In re Disqualification of Sage, 134 Ohio St.3d 1217, 2011-Ohio-7082.]

I N RE D ISQUALIFICATION OF S AGE . T HE S TATE OF O HIO v . J OHNSON . [Cite as In re Disqualific ation of Sage, 134 Ohio St.3d 1217, 2011-Ohio-7082.] Affidavit of disqualification—R.C. 2701.03—Allegations of misconduct by assistant prosecutor in underlying case and judge’s professional relationship with assistant prosecutor are insufficient to warrant disqualification—Judge’s knowledge of allegations against prosecutor would not prejudice judge against defendant. (No. 11-AP-038—Decided May 10, 2011.)
O N A FFIDAVIT OF D ISQUALIFICATION in Butler County Court of Common Pleas
Case No. CR2010-11-1867.

__________________ O’C ONNOR , C.J. {¶ 1} Defendant Tyree Johnson and his attorney, Kenneth J. Crehan,
have each filed affidavits with the cl erk of this court under R.C. 2701.03 seeking to disqualify Judge Michael J. Sage from further proceedings in case No. CR2010-11-1867, a criminal matter now pendi ng in the Court of Common Pleas of Butler County. {¶ 2} Defendant Johnson and attorney Crehan claim that Judge Sage cannot be impartial in the underlying case because of the judge’s relationship with Jason Phillabaum, a former assistant prosecutor for Butler County who was assigned to Judge Sage’s courtroom for several years. Phillabaum has been accused of prosecutorial misconduct involving the gun specifications charged in
Johnson’s indictment. {¶ 3} Judge Sage has responded in writing to the concerns raised in the affidavit of disqualif ication. The judge states that he has been fair to Johnson onS UPREME C OURT OF O HIO

2 every occasion and is not biased or prejudiced against him in any manner. Judge Sage maintains that he has exercised extraordinary caution and discretion by referring all matters relating to Philla baum’s alleged misconduct to a visiting judge.
Relevant Facts {¶ 4} In December 2010, Johnson was charged with two counts of aggravated robbery and three counts of fel onious assault. All five counts carried a firearm specification. {¶ 5} In February 2011, the Butler County prosecutor alleged that assistant prosecutor Phillabaum had committed prosecutorial misconduct in Johnson’s case. Specifically, Phillabaum was accused of adding the firearm specifications to Johnson’s indictment w ithout presenting those specifications to the grand jury for a vote. Phillabaum was subsequently terminated from his position as an assistant county prosecutor. {¶ 6} On February 10, 2011, Judge Sage held a hearing on the state’s motion to unseal the grand-jury proceedings in Johnson’s case. Because Phillabaum was the prosecutor assigned to Judge Sage’s courtroom, Judge Sage believed that he could not preside over Johnson’s trial if he heard evidence of Phillabaum’s alleged misconduct. The judge, citing State v. Gillard , 40 Ohio St.3d 226, 533 N.E.2d 272 (1988), found that hearing evidence on those claims against Phillabaum could potentially under mine his ability to sit as a fair and impartial judge in the case against Johnson. Therefore, Judge Sage referred all
matters that dealt with Phillabaum’s alleged misconduc t to a visiting judge. Retired Judge Guy Guckenberger was appoi nted to hear those issues involving Phillabaum, and Judge Sage retained jurisdiction over Johnson’s underlying
criminal case. {¶ 7} On March 24, 2011, Judge Guckenberger found that the grand jury did not return gun specifications agains t Johnson because the vote sheet did notJanuary Term, 2011

3 include any gun specification. On Marc h 30, 2011, the state filed a superseding indictment against Johnson adding the gun specifications. {¶ 8} On April 4, 2011, attorney Crehan filed a motion to dismiss the indictment and supersedin g indictment. The motion asserts that all charges
should be dismissed because Johnson’s ri ght to due process was violated by Phillabaum’s misconduct. On April 13, 2011, Judge Sage referred the matter to Judge Guckenberger because the motion to dismiss raised issues of prosecutorial misconduct involving Phillabaum. {¶ 9} On April 14, 2011, Crehan filed the instant affidavits of disqualification. For the following r easons, I find no basis for ordering the disqualification of Judge Sage. Attorney Crehan’s Affidavit of Disqualification {¶ 10} Crehan contends that Judge Sage cannot sit as an impartial trier of
fact because he has reviewed too much information about Phillabaum’s
misconduct as it relates to J ohnson’s case. According to Crehan, Judge Sage has reviewed the motion to dismiss, which contains the same information the judge previously decided he could not hear because he did not want to prejudice himself
as the trier of fact in Johnson’s case. Crehan further alleges that Judge Sage’s magistrate has briefed the judge on the i ssues raised in the motion to dismiss. {¶ 11} For his part, Judge Sage denies th at he has been prejudiced by the allegations of prosecutor ial misconduct against Phillaba um. According to the judge, he did nothing more than “briefly” review the motion to dismiss in order to
decide whether he should refer the matte r to Judge Guckenberger. Judge Sage avers that he has not considered or participated in any matters regarding the allegations of misconduct against Phillabaum and has instead severed those allegations from Johnson’s criminal case. {¶ 12} At the outset, I fail to unders tand how Phillabaum’s alleged misconduct would prejudice the judge agai nst the defendant. Despite JudgeS UPREME C OURT OF O HIO

4 Sage’s concerns, State v. Gillard is not applicable here. Gillard held that a trial judge who hears ex parte evidence during a pretrial hearing that a defendant has attempted to harm, coerce, or intimidate an opposing witness cannot be the same judge who conducts the trial. The cour t was concerned that a judge who heard inflammatory information that portrayed the defendant as “a dangerous person and a subverter of the criminal justice system” would be unable to preside over defendant’s trial in a fair and impartial manner. Gillard , 40 Ohio St.3d at 229, 533 N.E.2d 272. But the type of evidence of prosecutorial misconduct that would be presented in this case does not raise the same concerns and would not affect the defendant’s right to a fair trial in the same manner as the evidence submitted
in Gillard

. {¶ 13} In any event, in affidavit-of-disqualification proceedings the burden falls on the affiant to submit sufficient evidence that would support the disqualification request. See R.C. 2701.03(B)(1) (requiring affiant to include specific allegations of bias, prejudice, or disqualifying interest and the facts to support those allegations). Attorney Crehan alleges that Judge Sage has developed a bias or prejudice against his client by having reviewed the information contained in the motion to dismiss. But Crehan fails to identify any specific information in the motion to dis miss that would have prejudiced the judge against Johnson. If there are reasons why Judge Sage cannot serve fairly and impartially in the underlying case, Crehan must explain those reasons and provide supporting evidence as R.C. 2701.03 require s. This requirement has been explained in other affidavit cases. See, e.g. , In re Disqualification of Mitrovich
, 101 Ohio St.3d 1214, 2003-Ohio-7358, 803 N.E.2d 816, ¶ 4 (“An affidavit must describe with specificity a nd particularity those facts alleged to support the claim of bias or prejudice”); In re Disqualification of Walker , 36 Ohio St.3d 606, 522 N.E.2d 460 (1988) (vague or unsubstantiate d allegations are insufficient to establish bias or prejudice).January Term, 2011

5 {¶ 14} Moreover, my own review of the motion to dismiss reveals no such prejudicial information. See In re Disqualification of Solovan , 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 5 (denying affidavit of disqualification where it was “impossible to discern” from the information in the affidavit “any evidence of bias or prejudice”). Judge Sage was concerned with hearing evidence that Phillabaum engaged in prosecutorial misconduct. The motion to dismiss alleges that Phillabaum enga ged in misconduct, but Judge Sage was already aware of those allegations. The motion to dismis s also refers to Judge Guckenberger’s findings that the grand jury did not return gun specifications in Johnson’s case. The motion to dismiss, however, contains no evidence of any misconduct committed by Phillabaum because Judge Gu ckenberger found it unnecessary to take testimony on that issue. {¶ 15} In sum, it is not clear how review of the motion to dismiss would have prejudiced Judge Sage against Johns on. On this record, no reasonable and objective observer would have serious doubts about the judge’s impartiality. In re Disqualification of Lewis , 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 8 (setting forth the proper test for disqualifying a judge).
Defendant Johnson’s Affida vit of Disqualification {¶ 16} Johnson claims that Judge Sage cannot be impartial in his case due to the judge’s close relationship with Ph illabaum. According to Johnson, if he is convicted, Judge Sage will punish him mo re harshly because of the judge’s relationship with Phillabaum . In addition, Johnson belie ves that Judge Sage will “hold a grudge” against his attorney because attorney Crehan may be called to testify against Phillabaum. {¶ 17} “Generally, the more intimate the relationship between a judge and a person who is involved in a pending proc eeding, the more acute the concern that the judge may be tempted to depart from th e expected judicial detachment or to reasonably appear to have done so.” In re Disqualification of Shuff
, 117 OhioS UPREME C OURT OF O HIO

6 St.3d 1230, 2004-Ohio-7355, 884 N.E.2d 1084, ¶ 6. And disqualification is appropriate where a judge has significant personal or professional connections to one of the parties, In re Disqualification of Celebrezze , 105 Ohio St.3d 1241, 2004-Ohio-7360, 826 N.E.2d 301, or enjoys a close relationship with or holds particularly strong emotional ties to a person involved in an action before the judge, In re Disqualification of Nadel , 47 Ohio St.3d 604, 546 N.E.2d 926 (1989). {¶ 18} The affidavit in this case, how ever, does not provide convincing proof that Judge Sage’s disqualification is justified. Judge Sage has severed the allegations of misconduct ag ainst Phillabaum from Johnson’s underlying criminal case. Thus, Phillabaum is not involved in any proceedings before Judge Sage. Moreover, there is no evidence before me that Judge Sage and Phillabaum share any close friendship or social relations hip or have strong emotional ties. {¶ 19} As to the fact that Phillabaum previously served as the prosecutor assigned to Judge Sage’s courtroom, Johnson has not shown that this prior professional relationshi p requires the judge’s disqualif ication. A judge will not be disqualified based on the me re existence of a profe ssional relationship with a person involved in a pending action, abse nt some evidence that the judge’s relationship will affect the judge’s consideration of the case. See In re Disqualification of Koch , 113 Ohio St.3d 1220, 2006-Ohio-7228, 863 N.E.2d 624 (disqualification of entire county bench is not warranted where county prosecutor and assistant prosecutors may be called as witnesses); In re Disqualification of
Russo , 127 Ohio St.3d 1232, 2009-Ohio-7201, 937 N.E.2d 1021 (disqualification of judge not required where defendant wa s a nonjudicial employee of the same court as the judge); In re Disqualification of Economus , case No. 87-AP-059 (Sept. 8, 1987) (an existing friendship be tween judge and assistant prosecutor does not mandate judge’s dis qualification from cases handled by that assistant prosecutor); and In re Disqualification of Celebrezze
, 74 Ohio St.3d 1231, 657 N.E.2d 1341 (1991) (disqualification of judg e not warranted where another judgeJanuary Term, 2011

7 who served on the same court but in a di fferent division was a party and potential witness). Here, Johnson’s claims that Judge Sage will hold a grudge against defense counsel and impose a harsher sent ence are speculative and based entirely on Johnson’s own subjective beliefs. But Johnson’s subjective beliefs alone are not sufficient to support his a ffidavit of disqualification. See In re Disqualification of Lewis , 117 Ohio St.3d 1227, 2004-Ohio-7359, 884 N.E.2d 1082, ¶ 7. {¶ 20} “A judge is presumed to follow the law and not to be biased, and the appearance of bias or prejudice must be compelling to overcome these presumptions.” In re Disqualification of George
, 100 Ohio St.3d 1241, 2003- Ohio-5489, 798 N.E.2d 23, ¶ 5. Those presumptions have not been overcome in
this case. {¶ 21} Accordingly, the affidavits of di squalification are denied. The case may proceed before Judge Sage.

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