[Cite as State v. Vega, 2023-Ohio-3885.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112613

v. :

RICARDO VEGA, III, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: VACATED AND REMANDED

RELEASED AND JOURNALIZED: October 26, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-20-649286-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Jasmine Jackson, Assistant Prosecuting 

Attorney, for appellee. 

Friedman, Gilbert & Gerhardstein and Marcus Sidoti, for 

appellant. 

PER CURIAM:

Defendant-appellant, Ricardo Vega, III (“Vega”), appeals his 17-month 

prison sentence and claims the following error:
Appellant’s sentence is contrary to law because the record does not 

support the imposition of the near maximum sentence for a fourthdegree felony. 

We vacate Vega’s sentence and remand the case to the trial court for a 

new sentencing hearing consistent with his opinion. 

I. Facts and Procedural History

Vega pleaded guilty to one count of improper handling of a firearm in a 

motor vehicle in violation of R.C. 2923.16(B), a fourth-degree felony. The trial court 

sentenced him to 17 months in prison, a $250 fine, and ordered forfeiture of the gun 

to Cleveland police. Defense counsel objected to the sentence and argued that Vega 

had no prior criminal record except for a minor misdemeanor from 2016, was 

gainfully employed, and had a carrying-a-concealed-weapon permit. The court, 

unpersuaded by defense counsel’s remarks, noted the offense was serious enough to 

warrant a prison sentence because, at the time of his arrest, Vega had a Glock 27 in 

one pocket and a magazine with eight live rounds in the other pocket. (Tr. 6.) The 

court also noted that Vega was in possession of drug paraphernalia at the time of the 

offense, and he had previously been charged as a juvenile with committing an act 

that would constitute burglary if committed by an adult. Vega now appeals his 

sentence. 

II. Law and Analysis

In the sole assignment of error, Vega argues his sentence is contrary to 

law because the record does not support the imposition of the near maximum 

sentence. 
We review felony sentences under the standard set forth in R.C. 

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 

1231. R.C. 2953.08(G)(2) provides that an appellate court may increase, reduce, 

modify, or vacate and remand a felony sentence if the court clearly and convincingly 

finds either that the record does not support the sentencing court’s findings, or the 

sentence is otherwise “contrary to law.”

“A sentence is contrary to law if it falls outside the statutory range for 

the offense or if the sentencing court fails to consider the purposes and principles of 

sentencing set forth in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.” 

State v. Angel, 8th Dist. Cuyahoga No. 110456, 2022-Ohio-72, ¶ 8, citing State v. 

Pawlak, 8th Dist. Cuyahoga No. 103444, 2016-Ohio-5926, ¶ 58. 

Although the trial court must consider the sentencing factors in R.C. 

2929.11 and 2929.12, R.C. 2953.08(G)(2) does not allow an appellate court to 

modify or vacate a sentence based on its view that the sentence is not supported by 

the record under R.C. 2929.11 and 2929.12. State v. Bryant, 168 Ohio St.3d 250, 

2022-Ohio-1878, 198 N.E.3d 68, ¶ 22. However, an appellate court may reverse a 

trial court’s judgment if the court considered evidence outside the factors contained 

in R.C. 2929.11 and 2929.12 when imposing a sentence. Id., citing State v. Jones, 

163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 31, 39; see also State v. 

Munoz, 8th Dist. Cuyahoga No. 112006, 2023-Ohio-1895, ¶ 19.

Vega contends the trial court was biased against him because he was 

charged but acquitted of other serious offenses in another case. He implies the trial 
court had already decided to impose a prison term before considering the statutory 

factors set forth in R.C. 2929.11 and 2929.12 as a result of his acquittal in the 

separate case. Indeed, Vega filed an affidavit of disqualification with the Ohio 

Supreme Court detailing the facts he believed support his bias claim. 

An appellate court generally has “‘no authority to determine a claim 

that a trial judge is biased or prejudiced against a defendant and no authority to void 

a trial court’s judgment based on a claim that the trial judge is biased or prejudiced.’” 

State v. Frazier, 2017-Ohio-8307, 98 N.E.3d 1291, ¶ 16 (8th Dist.), quoting State v. 

Williamson, 8th Dist. Cuyahoga No. 104294, 2016-Ohio-7053, ¶ 27. However, 

because proceedings before a biased judge are fundamentally unfair, they deny a 

defendant due process of law. State v. Robinson, 8th Dist. Cuyahoga No. 110467, 

2022-Ohio-1311, ¶ 88, citing State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 

937 N.E.2d 97, ¶ 48; Munoz at ¶ 24. “As a result, a trial court’s judgment may be 

reversed due to judicial bias if the bias or prejudice violated the defendant’s right to 

due process and deprived the defendant of a fair proceeding.” Robinson at ¶ 88, 

citing Dean at ¶ 48. 

In determining whether alleged judicial bias resulted in the imposition 

of an unlawful sentence, an appellate court presumes the trial court was unbiased 

when it imposed the sentence, and the bias or prejudice must be compelling in order 

to overcome the presumption. Id., citing State v. Eaddie, 8th Dist. Cuyahoga No. 

106019, 2018-Ohio-961, ¶ 18, quoting State v. Filous, 8th Dist. Cuyahoga No. 
104287, 2016-Ohio-8312, ¶ 14. To overcome the presumption, an offender must link 

the court’s inappropriate comments to the court’s decisions. Munoz at ¶ 24. 

At the sentencing hearing, defense counsel recounted on the record 

how the trial court had stated that “Lady Justice was raped today” when Vega was 

acquitted. (Tr. 8.) Although the trial court indicated that it “accepts all verdicts,” it 

did not deny having made the egregious comment. Vega also asserted that the court 

sentenced him to the near-maximum sentence even though he had virtually no 

criminal record and despite the presumption of community control set forth in R.C. 

2929.13(B)(1) for his fourth-degree felony. Therefore, Vega sufficiently linked the 

alleged bias to the court’s decision to impose the near-maximum prison term on an 

offense that is normally punished through community control. We make no 

comment regarding the propriety of Vega’s sentence; only that the trial court was 

biased against Vega and that the sentencing proceeding was fundamentally unfair. 

Fortunately, the trial court granted Vega bond pending this appeal and, in an 

abundance of caution, we sustain the sole assignment of error. 

Judgment vacated and case remanded to the trial court, with 

instructions that the administrative judge assign the case to a different judge.

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

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, PRESIDING JUDGE

EILEEN T. GALLAGHER, JUDGE

MARY J. BOYLE, JUDGE