[Cite as State v. Murrill , 2021-Ohio-1449.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

MICKEY MURRILL, Appellant. :

:

:

:

:

: CASE NO. CA2020-08-081

O P I N I O N

4/26/2021

CRIMINAL APPEAL FROM BUTLER C OUNTY COURT OF COMMON PLEAS Case No. CR2018-02-0219

Michael T. Gmoser, Butler County Prosecuting Attorney, Stephen M. Wagner, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45 011, for appellee Christopher P. Frederick, 200 High Street, Suite 550 Hamilton, Ohio 45011, for appellant

M. POWELL, P.J. {¶ 1} Appellant, Mickey Murrill, appeals a decision of the Butler Cou nty Court of Common Pleas denying his petition for postconviction relief ("P CR petition"). {¶ 2} Appellant was indicted in February 2018 on 25 sexual offenses, including firstdegree felony kidnapping with a sexual motivation specification in violation of R.C. 2905.01(A)(2), and first-degree felony rape in violation of R.C . 2907.02(A)(1)(b).Butler CA2020-08-081

- 2 - Appellant's 25 charges stemmed from his actions with several ch ildren he knew through friends and family. The case was assigned to a judge on the Bu tler County Court of Common Pleas ("trial judge"). {¶ 3} In September 2018, appellant pled guilty to the rape and kidnap ping charges and to one count of gross sexual imposition, two counts of ille gal use of a minor in a nudityoriented material or performance, two counts of pandering sexua lly oriented material involving a minor, and three counts of voyeurism. {¶ 4} Appellant's sentencing hearing was held on October 16, 2018. T he trial judge accepted the parties' stipulation that a prison term of life wi thout parole would not be imposed on the rape conviction. The trial judge sentenced appe llant to an indefinite prison term of 10 years to life for the kidnapping offense and an inde finite prison term of 15 years to life for the rape offense and ordered these two sentences to run consecutively to each other. Based on the parties' stipulation, these sentences were imposed with the possibility of parole after serving the aggregate minimum sentence. For th e remaining offenses, the trial judge merged one offense with the kidnapping offense, imp osed definite prison terms on the remaining felony offenses, and ordered that these prison terms be served concurrently with the indefinite sentences imposed for the rape and kidnapping offenses, for an aggregate prison sentence of 25 years to life. Appellan t was designated a Tier III sex offender. Appellant appealed his sentence, arguing that th e consecutive sentences were contrary to law because the trial judge failed to make the required findings under R.C. 2929.14(C)(4). We upheld appellant's sentence in State v. Murrill , 12th Dist. Butler No. CA2018-11-215, 2019-Ohio-3318. {¶ 5} On October 24, 2018, eight days after sentencing appellant, the trial judge recused himself in an unrelated criminal case. In that case, d efendant Dustin Lawrence was convicted of sexual offenses, including rape and kidnapping , and was sentenced to 33Butler CA2020-08-081

- 3 - years in prison by the trial judge in May 2017. The trial judg e's recusal occurred during postconviction relief proceedings. The trial judge's entry of recusal explained that a member of his family "had been the victim of a similar crime which may have impacted the Court's original sentencing determination." By letter dated March 19, 2019, the Butler County

Prosecutor's Office notified the defendants who had been senten ced by the trial judge for similar crimes of the judge's recusal in the Lawrence case. Appellant received this notice with respect to his rape an d kidnapping convictions. {¶ 6} Appellant filed, pro se, a PCR petition, arguing that the trial judge was biased against him, thus violating his due process rights. The Ohio S upreme Court assigned a retired judge to preside over the PCR proceedings. The retired judge appointed counsel for appellant, construed the PCR petition as alleging that the trial judge's decision to sentence appellant to consecutive prison terms on the rape and kidnapping offenses was because of judicial bias, and scheduled an evidentiary hearing. On July 29, 2020, two weeks after the evidentiary hearing, the trial court denied app ellant's PCR petition. Citing this court's opinions in State v. Lawrence , 12th Dist. Butler Nos. CA2017-06-078 and CA2019-03-048, 2020-Ohio-855; and State v. Sharp , 12th Dist. Butler No. CA2019-10-181, 2020-Ohio-3497, in which we rejected similar claims of judicial bias from sex offenders sentenced by the trial judge, the trial court found that Counsel for Murrill argues that the trial judge was obliged to inform Murrill prior to sentencing that he was potentially bias ed because of the nature of Murrill's crimes. This contention assumes that the trial judge was biased or potentially biased. Given the pronouncements of the court of appeals in Lawrence and Sharp , this argument is perforce unavailing. There is no evidence of bias or potential bias, direct or circumstantial. {¶ 7} Appellant now appeals, raising one assignment of error: {¶ 8} MR. MURRILL WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS OF

LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS WHEN T HEButler CA2020-08-081

- 4 - TRIAL COURT FAILED TO DISCLOSE A POTENTIAL BIAS AGAINST HIM. {¶ 9} Relying upon the trial judge's entry of recusal in the Lawrence case, appellant argues that he was deprived of his due process rights when the trial judge failed to disclose a potential bias against him at sentencing. Appellant further argues that the trial judge "had the duty to recuse himself [in the case at bar] after his impar tiality was disclosed," and that

his failure to recuse violated the Ohio Code of Judicial Conduc t. {¶ 10} The avenue for redress when a party alleges violation of the Oh io Code of Judicial Conduct or error in a judge's failure to recuse is to file an affidavit of disqualification with the Ohio Supreme Court under R.C. 2701.03. See State v. Stumph , 1st Dist. Hamilton No. C-190318, 2021-Ohio-723; State v. Payne, 149 Ohio App.3d 368, 2002-Ohio-5180 (7th Dist.). "[A]ny allegations of judicial misconduct are not cogn izable on appeal, but [are] a matter properly within the jurisdiction of the Disciplinary Cou nsel." State v. Williams, 9th Dist. Summit No. 25827, 2011-Ohio-6067, ¶ 14. "Thus, an appell ate court lacks the authority to pass upon the disqualification of a common pleas j udge or to void a judgment

of a trial court on that basis." Wilburn v. Wilburn , 169 Ohio App.3d 415, 2006-Ohio-5820, ¶10 (9th Dist.). We therefore decline to address appellant's a rgument that the trial judge's

failure to recuse in the case at b ar violated the Ohio Code of Judicial Conduct. Payne at ¶

11. {¶ 11} While a court of appeals cannot reverse a common pleas court's judgment based upon failure to recuse, it can address allegations that a defendant's due process rights were violated. Id. Ohio courts have held that a judicial bias claim may be interpr eted "as an argument that [the defendant's] sentence is contrary to law based on a due process

violation." State v. Johnson , 8th Dist. Cuyahoga No. 107528, 2019-Ohio-4668, ¶ 26; Stumph at ¶ 25 (appellate courts have jurisdiction to review a claim o f bias where an appellant argues that the trial c ourt's bias impacts the outcom e of the case and violates theButler CA2020-08-081

- 5 - appellant's due process rights). {¶ 12} We therefore have jurisdiction to review appellant's claim he w as deprived of his due process rights when the trial judge failed to disclose a potential bias against him at sentencing. See State v. Filous , 8th Dist. Cuyahoga No. 104287, 2016-Ohio-8312, ¶ 12 (defendant argued that his due process rights were violated bec ause the trial court failed to afford him a fair and impartial sentence and was biased against him given the court's comments during the sentencing hearing); State v. Power , 5th Dist. Holmes No. 15 CA 1, 2015-Ohio-3001, ¶ 27 (defendant argued that his sentence was co ntrary to law because comments made by the trial court during the change of plea and sentencing hearings indicated the court was prejudiced or biased against him). App ellant essentially argues that the trial judge's imposition of consecutive sentences was the p roduct of judicial bias given the judge's recusal in the Lawrence case eight days later. {¶ 13} It is well settled that a criminal trial before a biased judge is fundamentally unfair and denies a defendant due process of law. State v. Dean , 127 Ohio St.3d 140, 2010-Ohio-5070, ¶ 48. Judicial bias has been described as "a h ostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litiga nts or his attorney, with the formation of a fixed anticipatory judgment on the part of the j udge, as contradistinguished from an open state of mind which will be governed by the law an d the facts." Id. {¶ 14} Judges are presumed not to be bi ased or prejudiced toward those appearing before them, and a party alleging bias or prejudice must presen t evidence to overcome the presumption. Sharp , 2020-Ohio-3497 at ¶ 11. The evidence must demonstrate an appearance of bias or prejudice c ompelling enough to overcome t he presumption of judicial integrity. Id. {¶ 15} Appellant has failed to present any evidence of the trial judge 's judicial bias or prejudice against him at sentencing. Instead, appellant ask s this court to presume thatButler CA2020-08-081

- 6 - the trial judge was biased or prejudiced at his sentencing simp ly because the judge expressed a concern he "may" have been biased at sentencing in the Lawrence case. The trial judge's recusal in that case occurred in the context of a PCR petition filed by Lawrence 15 months after he was originally sentenced by the judge. As w e have previously stated, the trial judge "did not admit to actual bias at [Lawrence's] s entencing hearing. Rather, the record indicates the judge was second guessing the fairness in his decision to impose consecutive sentences" at the original sentencing hearing. Lawrence , 2020-Ohio-855 at ¶ 27. In other words, the trial judge expressed concern about hi s state of mind in May 2017 when he originally sentenced Lawrence. Just as "this [did] not amount to an acknowledgment of actual bias at sentencing, nor [did] it impli cate any bias or prejudice at trial" concerning Lawrence, this likewise "does not amount to a n acknowledgment of actual bias at sentencing, nor does it implicate any bias or prejudice at trial" regarding appellant.

Id. We will not presume otherwise. Id. Appellant's claim "appears to be nothing more than speculation in an effort to take advantage of events in an unre lated case." Sharp at ¶ 14. {¶ 16} Moreover, a review of appellant's sentencing hearing fails to e stablish any hostile feelings, ill will, undue friendship, or favoritism tow ard either side. Appellant was indicted on 25 separate sexual offenses; all but two were felon ies. Appellant pled guilty to ten sexual offenses and the remaining 15 sexual offenses were d ismissed. The ten offenses involved six children as well as unidentified "pre-pub escent children" and an unidentified "pre-pubescent female." The trial judge accepted the parties' stipulation that a prison term of life without parole would not be imposed on the rape conviction. Although the trial judge imposed consecutive sentences on the rape and k idnapping offenses, he did not impose consecutive sentences on the remaining felony sexual offenses. Had the trial judge sentenced appellant to consecutive sentences on all count s, appellant would have

faced a minimum of 43 years in prison before parole eligibility.Butler CA2020-08-081

- 7 - {¶ 17} Appellant has not demonstrated anything that would overcome the presumption of judicial integrity in his case and has failed to show that the trial judge was biased in imposing the sentence. The assignment of error is ov erruled. {¶ 18} Judgment affirmed.

HENDRICKSON and BYRNE, JJ., concur.