[Cite as In re Disqualification of DeWine, 136 Ohio St.3d 1250, 2012-Ohio-6288.] 

IN RE DISQUALIFICATION OF DEWINE. 

THE STATE OF OHIO v. MCCANTS. 

[Cite as In re Disqualification of DeWine, 136 Ohio St.3d 1250, 

2012-Ohio-6288.] 

Judges—Affidavit of disqualification—Disqualification denied.

(No. 12-AP-085—Decided August 24, 2012.) 

ON AFFIDAVIT OF DISQUALIFICATION in Hamilton County 

Court of Common Pleas Case No. B 1103329-1. 

__________________ 

O’CONNOR, C.J. 

{¶ 1} Thomas R. Koustmer, attorney for the defendant, has filed an 

affidavit with the clerk of this court under R.C. 2701.03 seeking to disqualify 

Judge Pat DeWine from presiding over any further proceedings in case No. B 

1103329-1, now pending on an alleged community-control-sanction violation in 

the Court of Common Pleas of Hamilton County. 

{¶ 2} Koustmer alleges that Judge DeWine is biased and prejudiced 

against defendant Neeco McCants. This bias, according to Koustmer, has resulted 

in Judge DeWine’s forming a “conclusion of guilt” prior to the hearing on 

McCants’s alleged community-control violation; “usurp[ing] the authority of the 

probation officer” by pursuing the community-control violation after the 

probation department had decided to dismiss it; and infringing upon McCants’s 

constitutional rights. 

{¶ 3} Judge DeWine has responded in writing to the concerns in the 

affidavit, offering a detailed account of his handling of the underlying case. 

Judge DeWine contends that he “can proceed in this case without prejudice or 
SUPREME COURT OF OHIO

2

bias” and that McCants will be “provided a fair and impartial” communitycontrol-revocation hearing. 

{¶ 4} For the following reasons, no basis has been established for 

ordering the disqualification of Judge DeWine. 

Background of the Underlying Case

{¶ 5} In July 2011, Judge DeWine placed McCants on community 

control for a period of two years following a guilty plea to a charge of attempting 

to carry a concealed weapon. On March 29, 2012, McCants was indicted on a 

separate charge for carrying a concealed weapon, and Judge DeWine was also 

assigned to hear that case. On April 5, 2012, a community-control-sanction 

violation was filed against McCants in the original case, based on the new 

indictment. Judge DeWine continued the hearing on the community-control 

violation until after the trial on the new charge. 

{¶ 6} That trial occurred on June 5, 2012, and the jury returned a verdict 

of not guilty on the single charge of carrying a concealed weapon. However, 

during presentation of the evidence, two police officers testified that they had 

observed McCants and others huddled around a small bag in a driveway. As the 

officers approached, McCants ran away and a gun fell out of his pants. One of the 

officers caught McCants, and McCants threw a bag of marijuana on the ground. 

Immediately following the jury verdict, Judge DeWine asked counsel for the 

prosecution whether he would move forward with the community-control 

violation. The assistant county prosecutor answered: “Yeah, we probably want to 

add the marijuana that was found on him and things like that to the probation 

violation.” Judge DeWine subsequently set the community-control-revocation 

hearing for June 19, 2012. 

{¶ 7} According to Koustmer, prior to the June 19 hearing, he spoke to 

the county prosecutor and a representative from the Hamilton County Probation 

Department, who both indicated that they would dismiss the community-control 
January Term, 2012 

3

violation. This appears to be confirmed by the transcript of the June 19 hearing, 

which begins: 

The Court: Good morning. All right. We’re here today for 

a probation violation. Anything from the State? 

Mr. Vick: No, Your Honor. The original charge is Rule 2, 

carrying a concealed weapon. The probation department declined 

to— 

The Court: Why is that, do you know? 

Mr. Vick: He didn’t tell me. 

The Court: Before I dismiss it, I want to see the probation 

officer in here. Who is the probation officer? 

Mr. Vick: Nick Kern. 

The Court: Tell him I want to see him here. 

{¶ 8} According to Judge DeWine, the probation officer appeared 

shortly thereafter, and “the Court and defense counsel were informed that the 

State and probation department still wished to proceed with an amended probation 

violation.” At that time, the parties and the court went back on the record, and the 

probation department indicated that it would amend the community-control 

violation to include allegations relating to the police officers’ testimony from the 

separate trial. Judge DeWine allowed a continuance, and the probation 

department subsequently filed the amended community-control violation, which 

included the new allegations of marijuana possession, foot pursuit from a police 

officer, and trespassing. 

{¶ 9} Koustmer thereafter filed two motions to dismiss the amended 

violation, arguing that the amendment violates the Rules of Criminal Procedure 

and disrespects the jury’s decision and the grand jury’s decision—the grand jury 
SUPREME COURT OF OHIO

4

had previously ignored these same allegations by refusing to indict McCants on 

these charges. Judge DeWine denied the motions to dismiss and set the matter for 

a full hearing on the amended community-control violation. Koustmer 

subsequently filed this affidavit of disqualification. 

Merits of the Affidavit of Disqualification 

{¶ 10} Koustmer’s affidavit lists several allegations of bias and prejudice, 

which can be grouped into four main categories: (1) Judge DeWine has 

prejudged McCants’s guilt on the amended community-control violation, (2) 

Judge DeWine “usurped” the authority of the probation department by pursuing 

the community-control violation after the department had decided to dismiss it, 

(3) Judge DeWine is biased and prejudiced against McCants because he presided 

over the trial on the separate carrying-a-concealed-weapon charge, and (4) Judge 

DeWine’s actions have violated McCants’s constitutional rights. None of these 

allegations, however, are sufficient to warrant disqualification. 

Alleged prejudgment of the issues

{¶ 11} Koustmer claims that Judge DeWine has prejudged McCants’s 

guilt on the amended community-control violation based on two of Judge 

DeWine’s comments at the June 19 hearing. First, Koustmer points to the 

following passage, in which Judge DeWine is responding to Koustmer’s request 

to dismiss the probation department’s motion to amend the violation: 

 At this point, he has been convicted of carrying a concealed 

weapon. He has been acquitted—excuse me—of carrying a 

concealed weapon; however, there was substantial evidence 

introduced and that is uncontroverted, that he violated at least 

some of the laws. 
January Term, 2012 

5

 The probation department wishes to amend the charge. I’m 

not sure whether it makes any difference whether it’s continued or 

dismissed and then a new charge is filed. 

 But I think in this case, the most appropriate thing is to deal 

with all of those issues at once, and so * * * 

 

{¶ 12} Second, Koustmer claims that the following statement by Judge 

DeWine similarly demonstrates that he had predetermined McCants’s guilt: “Mr. 

Koustmer, do you want—Count 2 says that he would obey all laws. There’s clear 

testimony that he did not obey all laws, okay?” 

{¶ 13} According to Judge DeWine, he made these comments when 

deciding that “there was a sufficient evidentiary basis to allow amendment of the 

probation violation rather than the dismissal sought by Mr. Koustmer.” Judge 

DeWine repeatedly states throughout his response to Koustmer’s affidavit that he 

has not expressed any opinion or made “any decision as to Mr. McCants’ guilt or 

innocence” and that at the eventual revocation hearing, McCants may “present 

whatever evidence he deems appropriate” and “subpoena and examine any 

witnesses he feels are appropriate.” Finally, Judge DeWine states that he has 

“every confidence that Mr. McCants will be provided a fair and impartial trial.” 

{¶ 14} The term “bias or prejudice” “implies a hostile feeling or spirit of 

ill will * * * 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 the facts.” State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 469, 

132 N.E.2d 191 (1956). In addition, bias or prejudice on the part of the judge will 

not be presumed. “ ‘In fact, the law presumes that a judge is unbiased and 

unprejudiced in the matters over which he presides, and bias or prejudice must be 

strong enough to overcome the presumption of his integrity.’ ” In re 

Disqualification of O’Neill, 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d 
SUPREME COURT OF OHIO

6

17, ¶ 16, quoting 48A Corpus Juris Secundum, Judges, Section 108, at 731 

(1981). 

{¶ 15} Koustmer has failed to overcome those presumptions here, because 

the two comments do not demonstrate that Judge DeWine has a “fixed 

anticipatory judgment” about the alleged community-control violation. Judge 

DeWine may have formed an initial opinion from evidence presented at the earlier 

trial, but judges often form conditional opinions about a case during preliminary 

matters. It is well settled that the formation of these conditional opinions does not 

counter the presumption of the judge’s ability to preside fairly and impartially 

over future proceedings. In re Disqualification of Horvath, 105 Ohio St.3d 1247, 

2004-Ohio-7356, 826 N.E.2d 305, ¶ 8; In re Disqualification of Brown, 74 Ohio 

St.3d 1250, 1251, 657 N.E.2d 1353 (1993). Further, Judge DeWine asserts that 

the comments were made only to support his decision allowing the amendment of 

the community-control-violation charge, and McCants will have the opportunity 

to present evidence to dispute the probation department’s claims at a “fair and 

impartial” revocation hearing. Because nothing in the record contradicts Judge 

DeWine’s assurances, there is no clear existence of a “fixed anticipatory 

judgment.” Disqualification is therefore not warranted. 

Judge DeWine’s conduct allegedly “usurping” the authority 

of the probation department 

{¶ 16} Koustmer next alleges that Judge DeWine “usurped the authority 

of the probation officer” by pursuing the community-control sanction after the 

probation department had indicated a desire to dismiss the pending violation. 

Koustmer similarly alleges that Judge DeWine “singlehandedly converted” the 

community-control-violation claim to include the additional offenses. 

{¶ 17} In response, Judge DeWine states that to the best of his knowledge, 

Koustmer’s claim that the prosecution and probation department desired to 

dismiss the sanction “is not factually correct.” According to Judge DeWine, the 
January Term, 2012 

7

prosecutor indicated his desire to amend the community-control violation 

immediately after the June 5 trial. At the beginning of the June 19 hearing on the 

community-control violation, a probation officer “who had not been previously 

assigned to the case and who apparently had no knowledge of the case” was 

present. Accordingly, Judge DeWine requested that the probation officer 

assigned to the case appear in his courtroom, and after he did, “the Court and 

defense counsel were informed that the State and probation department still 

wished to proceed with an amended probation violation.” 

{¶ 18} Koustmer is making a serious allegation of misconduct against 

Judge DeWine—i.e., Judge DeWine somehow pressured or urged the probation 

department to amend the community-control-violation charge against its wishes. 

In an affidavit-of-disqualification proceeding, the burden falls on the affiant to 

submit sufficient evidence demonstrating that disqualification is warranted. See 

R.C. 2701.03(B)(1) (requiring an affiant to include specific allegations of bias, 

prejudice, or disqualifying interest and the facts to support those allegations). 

Accordingly, the affiant is often required to submit evidence beyond the affidavit 

itself supporting the allegations contained therein. See, e.g., In re Disqualification 

of Crow, 91 Ohio St.3d 1209, 741 N.E.2d 137 (2000) (denying an affidavit when 

an affiant failed to provide supporting affidavits from participants in allegedly 

improper conversations). Yet Koustmer offers no third-party affidavits or any 

other compelling evidence to support his claims of “usurpation,” other than the 

June 19 hearing transcript. In contrast, Judge DeWine has provided the June 5 

trial transcript showing that the prosecutor expressly stated that he would 

“probably want to add the marijuana that was found on him and things like that to 

the probation violation.” Further, Judge DeWine thoroughly explains why he 

requested the presence of the probation officer at the June 19 hearing, and he 

explains what occurred when the parties were off the record. 
SUPREME COURT OF OHIO

8

{¶ 19} While the transcript from the June 19 hearing certainly 

demonstrates indecision and confusion on the part of the probation department, 

the record here does not demonstrate that Judge DeWine pressured the probation 

department into amending the claim of a community-control violation. In light of 

Judge DeWine’s explanation, Koustmer’s vague, unsubstantiated, and speculative 

allegations are insufficient evidence to warrant judicial disqualification. See, e.g., 

In re Disqualification of Walker, 36 Ohio St.3d 606, 522 N.E.2d 460 (1988) 

(“vague, unsubstantiated allegations of the affidavit are insufficient on their face 

for a finding of bias or prejudice”); In re Disqualification of Flanagan, 127 Ohio 

St.3d 1236, 2009-Ohio-7199, 937 N.E.2d 1023, ¶ 4 (“Allegations that are based 

solely on hearsay, innuendo, and speculation * * * are insufficient to establish 

bias or prejudice”); In re Disqualification of Cacioppo, 77 Ohio St.3d 1245, 674 

N.E.2d 356 (1996) (“The hearsay allegations of the affiant will not stand in the 

face of an affirmative denial by the trial judge of substantive ex parte contacts”). 

{¶ 20} In addition, an element of Koustmer’s allegation is that Judge 

DeWine is biased because he permitted the probation department to amend the 

violation, even though such an amendment allegedly violates the Rules of 

Criminal Procedure. However, an affidavit of disqualification “is not a vehicle to 

contest matters of substantive or procedural law.” In re Disqualification of 

Solovan, 100 Ohio St.3d 1214, 2003-Ohio-5484, 798 N.E.2d 3, ¶ 4. A party’s 

disagreement or dissatisfaction with a court’s legal rulings, even if those rulings 

may be erroneous, is not grounds for disqualification. In re Disqualification of 

Floyd, 101 Ohio St.3d 1217, 2003-Ohio-7351, 803 N.E.2d 818, ¶ 4. Trial judges 

are entitled to exercise discretion in ruling on many matters, and it is not the chief 

justice’s role in deciding an affidavit of disqualification to second-guess each 

ruling. The remedy for these and other legal claims, if any, lies on appeal, not 

through the filing of an affidavit of disqualification. In re Disqualification of 

Russo, 110 Ohio St.3d 1208, 2005-Ohio-7146, 850 N.E.2d 713, ¶ 6. 
January Term, 2012 

9

Judge DeWine’s participation in the separate trial

{¶ 21} Koustmer also alleges that Judge DeWine is biased and prejudiced 

“by virtue of having presided over [McCants’s] Carrying Concealed Weapons 

trial.” However, absent a showing of actual bias, the mere fact that a judge 

presided over prior proceedings involving one or more of the parties presently 

before him is not sufficient to warrant disqualifying that judge from presiding 

over a subsequent proceeding involving the same parties. See State v. Were, 118 

Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 57 (“A trial judge is not 

disqualified simply because he acquired knowledge of the facts during a prior 

proceeding”); State v. D’Ambrosio, 67 Ohio St.3d 185, 188, 616 N.E.2d 909 

(1993) (“A judge need not recuse himself simply because he acquired knowledge 

of the facts during a prior proceeding”). Thus, Judge DeWine is not disqualified 

merely because he presided over McCants’s June 2012 trial on the separate 

charge. 

Alleged constitutional violations

{¶ 22} Throughout his affidavit, Koustmer alleges that Judge DeWine 

“has and will discount the mandates of substantive due process as required by the 

United States and Ohio Constitutions.” An affidavit of disqualification, however, 

is not the appropriate vehicle for determining whether a judge has violated a 

party’s constitutional rights. In re Disqualification of Griffin, 101 Ohio St.3d 

1219, 2003-Ohio-7356, 803 N.E.2d 820, ¶ 8-9. Koustmer has other legal 

remedies available to his client to challenge Judge DeWine’s actions, including 

appeal. Koustmer may not litigate these issues in an affidavit of disqualification. 

In re Disqualification of Russo, 110 Ohio St.3d 1208, 2005-Ohio-7146, 850 

N.E.2d 713, ¶ 6. 

Conclusion 

{¶ 23} The statutory right to seek disqualification is an “extraordinary 

remedy.” In re Disqualification of George, 100 Ohio St.3d 1241, 2003-Ohio-
SUPREME COURT OF OHIO

10

5489, 798 N.E.2d 23, ¶ 5. “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.” Id. Those presumptions have not been overcome in this 

case. 

{¶ 24} For the reasons stated above, the affidavit of disqualification is 

denied. The case may proceed before Judge DeWine. 

______________________