[Cite as State v. Papotto , 2019-Ohio-5405.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO Appellee

v. ROBERT M. PAPOTTO Appellant C.A. No. 29188

APPEAL FROM JUDGMENT ENTERED IN THE STOW MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 18 CRB 0426

DECISION AND JOURNAL ENTRY Dated: December 31, 2019

SCHAFER, Judge. {¶1} Defendant-Appellant, Robert Pa potto, appeals from his convictio n in the Stow Municipal Court. This Court affirms.

I. {¶2} One afternoon, the police responde d to a report of a fistfight between two men at a casino in Northfield. Papotto was one of the men involved in t he fight and the other was W.K. When officers spoke with the men, they each identified the othe r as the initial aggressor. The officers, therefore, reviewed the casino’s security footage at the scene. Based on their review of the footage, the officers deter mined that Papotto was the aggre ssor. {¶3} Papotto was charged with one count of assault in violation of N orthfield Village

Codified Ordinance 636.02. He wa s appointed counsel and demand ed a jury trial. On the day of trial, however, the State amended his charge to disorderly cond uct in violation of R.C. 2917.11(A)(1). Because the amended charge was a minor misdemea nor, the trial court dismissed2

the jury and held a bench trial. At the conclusion of trial, t he court found Papotto guilty and sentenced him to a fine. The court later granted his motion to stay the execution of his sentence for purposes of his appeal. {¶4} Papotto now appeals from his conviction and raises two assignme nts of error for

our review.

II. Assignment of Error I The trial court erred by being extremely prejudicial when she c onvicted Appellant of disorderly conduct. This conviction was unjust an d decided by a judge who was hostile, aggressive and “in a hurry” in direct vi olation of his constitutional rights and the Oh io Codes of Judicial Conduct. {¶5} In his first assignment of error, Papotto argues that he was pr ejudiced as a result of “unwarranted and egregious conduc t” on the part of the trial ju dge. He asserts that he was denied

a fair trial because the trial judge acted in a hostile and bia sed manner. For the following reasons, we reject his argument. {¶6} The issue of whether a convicti on must be vacated due to bias o r prejudice on the part of a trial judge is one that lies exclusively within the j urisdiction of the Chief Justice of the Ohio Supreme Court. See State v. Polke , 9th Dist. Medina No. 18CA0061-M, 2019-Ohio-904, ¶ 7; R.C. 2701.031. This Court lacks authority “to void a trial court’s judgment on the basis of personal bias or prejudice on the part of the trial judge * * * .” State v. Hunter , 151 Ohio App.3d 276, 2002-Ohio-7326, ¶ 18 (9th Dist.), citing Beer v. Griffith , 54 Ohio St.2d 440, 441-442 (1978). Nevertheless, we may determine whether conduct on the part of a trial judge denied a criminal defendant due process of law. See, e.g., State v. Powell , 9th Dist. Lorain No. 12CA010284, 2017- Ohio-4030, ¶ 8-13. “A judge is presumed to follow the law and not to be biased, and the3

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, ¶ 5. {¶7} Papotto argues that he was “severely prejudiced” at trial becau se the trial judge

violated several canons of the Ohio Code of Judicial Conduct. According to Papotto, the judge acted in a hostile manner, chided him for wasting time, and rus hed the proceedings to attend to a personal commitment. In support of his claim, he points to two affidavits that claim to recount

statements made or excha nges had off the record. {¶8} Upon review, Papotto’s arguments must fail for three reasons. First, the statements and exchanges he cites that do not appear in the trial court re cord “are inappropriate for consideration on direct appeal.” State v. Zeber , 9th Dist. Summit No. 28481, 2017-Ohio-8987, ¶ 8. That is because “[t]his Cour t’s review is limited to the re cord before us.” Easley v. Akron , 9th Dist. Summit No. 28809, 2018-Ohio-2550, ¶ 5. Second, Papotto f ailed to object to any alleged misconduct on the part of the tria l court judge and has not arg ued plain error on appeal. See Powell at ¶ 12. He, therefore, forfeited those arguments, and this Co urt will not construct a claim of plain

error on his behalf. See id, ; State v. Butler , 9th Dist. Summit No. 23786, 2008-Ohio-781, ¶ 31. Finally, to the extent Papotto asks us to void his conviction b ecause the trial judge violated certain

ethical canons or was biased or prejudiced against him, we lack the authority to do so. See Hunter at ¶ 18, citing Beer at 441-442. Relief was availabl e to him, if at all, through a properly filed affidavit of disqualification. See R.C. 2701.031. Accordingly, his first assignment of error is

overruled. Assignment of Error II The trial court erred by not granting the motion to withdraw fi led by the Public Defender’s Office and appointing new counsel on the char ge of [a]ssault and not continuing the proceedings to another day rendering App ellant left with ineffective assistance of counsel.4

{¶9} In his second assignment of error, Papotto argues that the tria l court erred when it failed to grant the motion to wit hdraw that defense counsel fil ed two days before trial. He argues

that the court’s error caused him to receive ineffective assist ance of counsel because his attorney was unprepared, did not represent him to the best of his abilit ies, and failed to object when the court denied his request for a recess. According to Papotto, t he trial court should have granted the motion to withdraw, continued the proceedings, and appointed hi m new counsel. Upon review, this Court rejects his argument. {¶10} The Sixth Amendment to the United States Constitution guarantee s a criminal defendant the right to counsel for his defense. Accord Ohio Constitution, Article I, Section 10. Yet, a defendant has no constitutional right to counsel if his sole charge is a minor misdemeanor

for which no sentence of confinement is available. See State v. Roth , 9th Dist. Lorain No. 17CA011083, 2018-Ohio-2564, ¶ 39. Because the State reduced Pa potto’s original charge to a minor misdemeanor at the start of trial, he had no constitution al right to counsel. See id. Defense counsel continued to represent P apotto, but had no obligation t o do so. Further, we would note that Papotto never objected to defense counsel’s continued repr esentation or sought to represent himself. Because Papotto had no constitutional right to counse l and, in any event, failed to raise this issue with the trial court, w e conclude that his argument lacks merit. As such, his second assignment of error is overruled.

III. {¶11} Papotto’s assignments of error are overruled. The judgment of the Stow Municipal

Court is affirmed. Judgment affirmed.5

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, direc ting the Stow Municipal Court, County of Summit, State of Ohio, to carry this judgment into ex ecution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof , this document shall consti tute the journal entry of judgment, and it shall be file s tamped by the Clerk of the Cour t of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to m ake a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellant.

JULIE A. SCHAFER FOR THE COURT

CARR, P. J. HENSAL, J. CONCUR.

APPEARANCES:

ROBERT M. PAPOTTO , pro se, Appellant. BRADRIC T. BRYAN, Prosecuting Attorney, for Appellee.