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

IN RE DISQUALIFICATION OF SAGE. 

THE STATE OF OHIO v. JOHNSON. 

[Cite as In re Disqualification 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.) 

ON AFFIDAVIT OF DISQUALIFICATION in Butler County Court of Common Pleas 

Case No. CR2010-11-1867. 

__________________ 

O’CONNOR, C.J. 

{¶ 1} Defendant Tyree Johnson and his attorney, Kenneth J. Crehan, 

have each filed affidavits with the clerk 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 pending 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 disqualification. The judge states that he has been fair to Johnson on 
SUPREME COURT OF OHIO

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 Phillabaum’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 felonious 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 without 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 undermine 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 misconduct to a visiting judge. 

Retired Judge Guy Guckenberger was appointed 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 against Johnson because the vote sheet did not 
January Term, 2011 

3

include any gun specification. On March 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 superseding indictment. The motion asserts that all charges 

should be dismissed because Johnson’s right 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 reasons, 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 Johnson’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 issues raised in the motion to dismiss. 

{¶ 11} For his part, Judge Sage denies that he has been prejudiced by the 

allegations of prosecutorial misconduct against Phillabaum. According to the 

judge, he did nothing more than “briefly” review the motion to dismiss in order to 

decide whether he should refer the matter 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 understand how Phillabaum’s alleged 

misconduct would prejudice the judge against the defendant. Despite Judge 
SUPREME COURT OF OHIO

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 court 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 dismiss 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 requires. 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 and 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 unsubstantiated 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 engaged in misconduct, but Judge Sage was already aware 

of those allegations. The motion to dismiss 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 Guckenberger 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 Johnson. 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 Affidavit of Disqualification 

{¶ 16} Johnson claims that Judge Sage cannot be impartial in his case due 

to the judge’s close relationship with Phillabaum. According to Johnson, if he is 

convicted, Judge Sage will punish him more harshly because of the judge’s 

relationship with Phillabaum. In addition, Johnson believes 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 proceeding, the more acute the concern that 

the judge may be tempted to depart from the expected judicial detachment or to 

reasonably appear to have done so.” In re Disqualification of Shuff, 117 Ohio 
SUPREME COURT OF OHIO

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, however, does not provide convincing 

proof that Judge Sage’s disqualification is justified. Judge Sage has severed the 

allegations of misconduct against 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 relationship 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 relationship requires the judge’s disqualification. A judge will not be 

disqualified based on the mere existence of a professional relationship with a 

person involved in a pending action, absent 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 was 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 between judge and assistant prosecutor 

does not mandate judge’s disqualification 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 judge not warranted where another judge 
January Term, 2011 

7

who served on the same court but in a different 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 sentence are speculative and based entirely 

on Johnson’s own subjective beliefs. But Johnson’s subjective beliefs alone are 

not sufficient to support his affidavit 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 disqualification are denied. The case 

may proceed before Judge Sage. 

______________________