[Cite as State v. Cody, 2011-Ohio-2289.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 95753 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

TYRONE CODY

DEFENDANT-APPELLANT 

JUDGMENT: 

DISMISSED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-516633 

BEFORE: Rocco, J., Celebrezze, P.J., and Cooney, J. 

RELEASED AND JOURNALIZED: May 12, 2011 
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 -iFOR APPELLANT

Tyrone Cody, pro se 

Inmate No. 571-526 

Belmont Correctional Institution 

P.O. Box 540 

St. Clairsville, Ohio 43950 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Edward H. Kraus 

Assistant County Prosecutor 

Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

KENNETH A. ROCCO, J.: 

{¶ 1} Defendant-appellant Tyrone Cody, proceeding pro se, appeals 

from the most recent trial court order that denied his fifth motion for judicial 

release, which was accompanied by a “motion for recusal.” 

{¶ 2} Cody presents two assignments of error. He argues the trial 

court acted improperly in failing to recuse itself from conducting further 

proceedings in this case. He further argues the trial court abused its 
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discretion in denying his fifth motion for judicial release with the notation he 

was “not to further file, based on these issues.” 

{¶ 3} This court lacks jurisdiction to consider either of Cody’s 

assignments of error. Therefore, his appeal is dismissed. 

{¶ 4} In view of the necessity of dismissal, the underlying facts of this 

case will be discussed only briefly. The App.R. 9(A) record reveals Cody 

originally was indicted in October 2008. He was charged with many 

co-defendants on numerous counts pertaining to an alleged mortgage fraud 

scheme. 

{¶ 5} In June 2009, Cody entered guilty pleas to twelve counts in order 

to obtain the dismissal of the others. The trial court called his case for 

sentencing on July 16, 2009, and imposed a prison term that totaled two 

years. The next day, the order of Cody’s sentence was filed with the court 

clerk. 

{¶ 6} The record reflects that, beginning in early 2010, Cody filed 

successive motions pursuant to R.C. 2929.20 seeking judicial release. The 

trial court denied each. Cody filed his motions on the following dates: March 

29, 2010; April 14, 2010; April 20, 2010; June 7, 2010; and, finally for 

purposes of this appeal, August 11, 2010. 
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{¶ 7} The latter motion also was accompanied by a “motion for recusal.” 

 Cody alleged therein that his “undersigned counsel” was “affiliated with the 

law firm” that represented the trial judge in another matter. 

{¶ 8} In his motions for judicial release, Cody generally argued that his 

convictions were the result of circumstances not likely to reoccur, that 

substantial grounds existed tending to excuse his convictions, and that he had 

responded to correctional treatment. The trial court denied his motions 

within approximately one week of their filing dates without opinion. 

{¶ 9} Cody filed his appeal in this case from the trial court’s August 26, 

2010 judgment entry, which states: 

{¶ 10} “Defendant’s motion for judicial release is denied. Defendant 

has now filed five (5) motions for judicial release. This case is concluded. 

There are no substantive remaining issues. Defendant is not to further file, 

based on these issues.” 

{¶ 11} Cody presents the following two assignments of error. 

{¶ 12} “I. The trial court erred and abused its discretion when 

it arbitrarily, improperly, and/or with bias denied the 

defendant-appellant’s motion for recusal in violation of 

defendant-appellant’s constitutional rights, and accordingly, the 
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denial must be vacated and remanded for further proceedings, and 

the trial court must recuse itself. 

{¶ 13} “II. The trial court erred and abused its discretion when 

it ordered, in effect, the preclusion of the defendant-appellant from 

filing any subsequent motions for judicial release, which violated the 

defendant-appellant’s rights and was not in compliance with R.C. 

2929.20, and, accordingly, is contrary to law and void, and, therefore, 

must be vacated.”

{¶ 14} Since this court lacks jurisdiction to consider either of Cody’s 

assignments of error, they cannot be addressed. 

{¶ 15} The following is relevant to the argument Cody presents in his 

first assignment of error: 

{¶ 16} “The Chief Justice of the Ohio Supreme Court, or his designee, 

has exclusive jurisdiction to determine a claim that a common pleas judge is 

biased or prejudiced. Section 5(C), Article IV, Ohio Constitution. R.C. 

2701.03 provides the exclusive means by which a litigant may claim that a 

common pleas court judge is biased and prejudiced. State ex rel. Pratt v. 

Weygandt (1956), 164 Ohio St. 463, 132 N.E.2d 191, paragraph three of the 

syllabus; Jones v. Billingham (1995), 105 Ohio App.3d 8, 11, 663 N.E.2d 657. 

A litigant who believes that the trial judge should be disqualified must file an 
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affidavit of bias or prejudice with the clerk of the supreme court pursuant to 

R.C. 2701.03. Id. Since only the Chief Justice or her designee may hear a 

disqualification matter, a court of appeals is without authority to void the 

judgment of the trial court because of bias or prejudice of the judge. Beer v. 

Griffith (1978), 54 Ohio St.2d 440, 441-42, 377 N.E.2d 775.” (Emphasis 

added.) State v. Mackey (Feb. 14, 2000), Warren App. No. CA99-06-065. 

See, also, State v. Bacon, Cuyahoga App. No. 85475, 2005-Ohio-6238, ¶66. 

{¶ 17} If Cody believed the trial judge should be removed from his case 

due to bias or prejudice against him, his exclusive remedy was to file an 

affidavit of disqualification pursuant to R.C. 2701.03. This court lacks 

jurisdiction to decide the merits of Cody’s first assignment of error. 

{¶ 18} Likewise, this court cannot determine the merits of Cody’s second 

assignment of error. 

{¶ 19} Cody argues therein that the trial court abused its discretion in 

denying his fifth motion for judicial release. However, “it is well-established 

that the denial of a motion for judicial release is not a final appealable order. 

State v. Masko, Trumbull App. No. 2004-T-0070, 2004-Ohio-5297, ¶2, citing 

State v. Singh (2001), 146 Ohio App.3d 38[, 764 N.E.2d 1096].” State v. 

Bennett, Muskingum App. No. CT2005-0009, 2006-Ohio-2812, ¶15. See, also, 

State v. Hanes, Coshocton App. No. 2006-CA-013, 2007-Ohio-3764, ¶7; Rone v. 
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State, Ashtabula App. No. 2005-A-0075, 2006-Ohio-1268, ¶5, citing State v. 

Coffman, 91 Ohio St.3d 125, 2001-Ohio-273, 742 N.E.2d 644. 

{¶ 20} Since the trial court’s denial of Cody’s motion for judicial release 

does not constitute a final order, this court also lacks jurisdiction to consider 

this argument. 

Appeal dismissed. 

It is ordered that appellee recover from appellant costs herein taxed. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure. 

________________________________ 

KENNETH A. ROCCO, JUDGE 

FRANK D. CELEBREZZE, JR., P.J., and 

COLLEEN CONWAY COONEY, J., CONCUR