[Cite as State v. Weger, 2023-Ohio-1194.]

COURT OF APPEALS

LICKING COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES:

: Hon. William B. Hoffman, P.J.

 Plaintiff - Appellee : Hon. Patricia A. Delaney, J.

: Hon. Craig R. Baldwin, J.

-vs- :

:

JAMIE WEGER, : Case No. 2022 CA 00063

:

 Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Licking County 

Municipal Court, Case No. 

21CRB00221

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 11, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

J. MICHAEL KING TODD W. BARSTOW

Assistant Law Director 261 West Johnstown Road

City of Newark Suite 204

40 West Main Street, Fourth Floor Columbus, Ohio 43230

Newark, Ohio 43055
Licking County, Case No. 2022 CA 00063 2

Baldwin, J.

{¶1} The appellant appeals her sentence because it was re-imposed by an acting 

judge rather than the original sentencing judge after the case was affirmed on appeal.

Appellee is the State of Ohio. 

STATEMENT OF THE FACTS AND THE CASE

{¶2} The appellant was charged on February 22, 2021 with child endangerment 

in violation of R.C. 2919.22, a misdemeanor of the first degree. The matter proceeded to 

a bench trial on July 20, 2021, at which time the appellant was found guilty. The trial court 

sentenced the appellant to 180 days in jail, with 120 days suspended and credit for time 

served; one-year probation after her release from jail; completion of a parenting skills 

class; and, payment of a $150.00 fine and court costs. The appellant appealed the 

decision, and was granted a stay of execution of her sentence pending appeal. On June 

27, 2022, this court affirmed the trial court’s decision in State v. Weger, 5th Dist. Licking 

No. 2021 CA 00062, 2022-Ohio-2204. 

{¶3} On July 5, 2022 the trial court issued a scheduling order setting the matter 

for an “imposition of sentence” hearing on July 15, 2022. The appellant appeared for the 

hearing without counsel, and the trial court appointed counsel for her at her request. The 

hearing was continued until August 24, 2022. 

{¶4} The August 24, 2022 hearing proceeded as scheduled. The original judge 

was unable to preside, and an acting judge had been appointed. The acting judge called 

the matter for hearing. Counsel for the appellant objected to the acting judge imposing 

sentence because she was not the judge who imposed the original sentence. The 

appellant incorrectly avers in her Statement of the Case and Facts that “[c]ounsel 
Licking County, Case No. 2022 CA 00063 3

objected to having the matter heard by the acting judge and asked that the case be 

continued so that the assigned, elected judge could preside over the hearing.” A review 

of the August 24, 2022 hearing transcript reveals that when asked if he was objecting or 

making a motion to continue, counsel replied “Objecting.” The acting judge then stated 

that “with no motion to continue before me I will be proceeding and your objection is noted 

on the record and recorded.” 

{¶5} The acting judge thereafter re-imposed the original sentence that had been 

imposed by the judge who initially heard the case, which was 180 days with 120 days 

suspended, for a total of sixty days, and credit for time served. The appellant had served 

twenty-four days; thus, she was remanded to the county jail to serve the remaining thirtysix days on her sixty-day jail sentence. In addition, the acting judge reminded the 

appellant that the original judge had ordered that she be placed on probation for a period 

of one year following the completion of her jail term, that she complete a parenting skills 

program, and that she pay a $150.00 fine and court costs. Finally, the acting judge 

advised the appellant that the original judge would be returning to the bench the next day, 

and she could file a motion for reconsideration of re-imposition of the sentence for the 

original judge’s consideration at that time. 

{¶6} The appellant filed a timely appeal, and sets forth the following sole 

assignment of error:

{¶7} “I. THE TRIAL COURT ABUSED ITS DISCRETION BY NOT PERMITTING 

APPELLANT TO BE SENTENCED BY THE ASSIGNED MUNICIPAL COURT JUDGE.” 
Licking County, Case No. 2022 CA 00063 4

{¶8} The appellant contends that the trial court abused its discretion when the 

acting judge re-imposed the sentence that had originally imposed by the trial court after 

the case had been affirmed on appeal. We disagree.

STANDARD OF REVIEW

{¶9} Abuse of discretion connotes more than an error of law or judgment; it 

implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore 

v. Blakemore, 5 Ohio St.2d 217, 450 N.E.2d 1140 (1983), at 219, citing Steiner v. Custer

(1940), 137 Ohio St. 448 [31 N.E.2d 855] [19 O.O. 148]; Conner v. Conner (1959), 170 

Ohio St. 85 [162 N.E.2d 852] [9 O.O.2d 480]; Chester Township v. Geauga Co. Budget 

Comm. (1976), 48 Ohio St.2d 372 [358 N.E.2d 610] [2 O.O.3d 484]. 

ANALYSIS

{¶10} Ohio Criminal Rule 25(B) permits another judge to act after a verdict or 

finding of guilt, and states:

If for any reason the judge before whom the defendant has been tried 

is unable to perform the duties of the court after a verdict or finding of guilt, 

another judge designated by the administrative judge, or, in the case of a 

single-judge division, by the Chief Justice of the Supreme Court of Ohio, 

may perform those duties. If such other judge is satisfied that he cannot 

perform those duties because he did not preside at the trial, he may in his 

discretion grant a new trial.

{¶11} The Ohio Supreme Court addressed the application of Crim.R. 25(B) as 

follows:
Licking County, Case No. 2022 CA 00063 5

In addition, the Rules of Criminal Procedure specifically authorize a 

trial judge who has not presided over a trial to sentence a defendant. 

Crim.R. 25(B) provides:

If for any reason the judge before whom the defendant has been tried 

is unable to perform the duties of the court after a verdict or finding 

of guilt, another judge designated by the administrative judge, or, in 

the case of a single-judge division, by the Chief Justice of the 

Supreme Court of Ohio, may perform such duties. If such other judge 

is satisfied that he cannot perform those duties because he did not 

preside at the trial, he may in his discretion grant a new trial.

(Emphasis added.)

Thus, it is “entirely proper” for a substitute judge to sentence a 

defendant after the retirement or death of the judge who presided over the 

defendant's trial. State v. Green, 122 Ohio App.3d 566, 571, 702 N.E.2d 

462 (12th Dist.1997). See also State v. Fitzpatrick, 1st Dist. Hamilton Nos. 

C–930413, C–930439, B–927123, and B–928955, 1994 WL 164189 (May 

4, 1994) (Crim.R. 25(B) authorized substitution of judge on sentencing when 

substitute judge stated on record that trial judge “would not be available for 

several months” and substitute “had familiarized himself with the file”).

State v. Roberts, 150 Ohio St.3d 47, 2017-Ohio-2998, 78 N.E.3d 851, ¶38-39. See, also, 

State v. Dowell, 8

th Dist. Cuyahoga No. 110629, 2022-Ohio-615, ¶14 (“...Crim.R. 25(B) 

does not prohibit another judge from presiding over postconviction proceedings if the 

original judge is unable to perform those duties for any reason.”)
Licking County, Case No. 2022 CA 00063 6

{¶12} In this case, the original judge, who had already sentenced the appellant 

prior to her first appeal, was unavailable on the day the hearing was scheduled for reimposition of the appellant’s sentence. An acting judge had been appointed, and the 

matter proceeded. The appellant objected, but did not request a continuance. The acting 

judge did not “sentence” the appellant, but rather, simply engaged in the ministerial act of 

re-imposing the sentence that had previously been imposed by the original judge. 

{¶13} A “ministerial act” is “‘. . . one which a person performs in a given state of 

facts, in a prescribed manner, in obedience to the mandate of legal authority, without 

regard to, or the exercise of, his own judgment upon the propriety of the act being done.’” 

State ex rel, Trauger v. Nash, 66 Ohio St.612, 64 N.E. 558 (1902), 618. This is precisely 

what the acting judge did in this case. She performed the function of re-imposing the 

appellant’s sentence pursuant to the mandate of legal authority that had been previously 

exercised by the original judge, without regard to her own judgment on the propriety of 

the sentence. 

{¶14} This reasoning is supported by State v. Robb, 88 Ohio St.3d 59, 2000-Ohio275, 723 N.E.2d 1019, in which the Court stated: 

. . . [D]efendant argues that his death penalty must be vacated because 

Judge Patrick McGrath signed the writ of execution when, in fact, retired 

Judge Thomas Mitchell presided over the case and sentenced defendant to 

death.

However, signing the death warrant was a ministerial act, since 

Judge Mitchell had already imposed the death penalty and signed the 

sentencing entry. Crim.R. 25(B) permits another judge to be assigned a 
Licking County, Case No. 2022 CA 00063 7

case if, “for any reason,” the original judge “is unable to perform the duties 

of the court after a verdict.” Although the file does not explain why another 

judge signed the writ, defendant still “has not contradicted the presumption 

of regularity accorded all judicial proceedings.” State v. Hawkins (1996), 74 

Ohio St.3d 530, 531, 660 N.E.2d 454, 455. Accord State v. Sweet (1995), 

72 Ohio St.3d 375, 650 N.E.2d 450; State ex rel. Tillimon v. Weiher (1992), 

65 Ohio St.3d 468, 469, 605 N.E.2d 35, 36.

Id. at 88. 

{¶15} Based upon the foregoing, we find that the trial court did not abuse its 

discretion when the acting judge re-imposed the sentence that had originally imposed by 

the trial court after the case had been affirmed on appeal. 

{¶16} The appellant’s sole assignment of error is overruled, and the judgment of 

the Licking County Municipal Court is hereby affirmed. 

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.