State v. Cook , 2014 Ohio 3165 ( 2014 )

[Cite as State v. Cook, 2014-Ohio-3165.]
IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2013 CA 22
v. : T.C. NO. 07CR107
JERRY H. COOK : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 18th day of July , 2014.
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JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main
Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
SEAN J. VALLONE, Atty. Reg. No. 0064053, 5 Irongate Park Drive, Suite A, Centerville,
Ohio 45459
Attorney for Defendant-Appellant
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FROELICH, P.J.
{¶ 1} Jerry H. Cook appeals from a judgment of the Champaign County Court of
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Common Pleas which, after a hearing, revoked his community control and ordered him to
serve an aggregate term of 18 months in prison for burglary and assault. Cook raises two
assignments of error, both of which focus on that fact that the trial judge for his revocation
hearing was formerly a prosecutor on his case. For the following reasons, the trial court’s
judgment will be affirmed.
{¶ 2} In May 2007, Cook was indicted on aggravated burglary, a first-degree
felony, and three first-degree misdemeanors: assault, theft, and aggravated menacing. Cook
was arrested on the charges in January 2008, and an arraignment hearing occurred on
January 28, 2008. Then-County Prosecutor Nick Selvaggio appeared for the State and
indicated that he would serve as trial counsel. A second arraignment hearing, with defense
counsel, was held on February 6, 2008; Assistant Prosecutor Richard Houghton appeared for
the State at that hearing.
{¶ 3} On March 10, 2008, the court conducted a final pretrial conference.
Selvaggio indicated at that hearing that the case had been assigned to Assistant Prosecutor
Shockling, but that he (Selvaggio) “took it over.” Due to delayed discovery, Selvaggio
requested that the final pretrial conference be continued. Selvaggio appeared for the State
at the second final pretrial conference on March 20. On May 28, 2008, another pretrial
conference was held, at which time Cook appeared with new counsel; Assistant Prosecutor
Houghton appeared for the State.
{¶ 4} On June 28, 2008, Cook pled guilty to burglary, a fourth-degree felony, and
assault. In exchange for the plea, the theft and aggravated menacing charges were
dismissed. The State, represented by Houghton, indicated that it agreed to recommend a
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presentence investigation and that, if no currently unknown criminal history were revealed,
the State would recommend community control. A presentence investigation was
conducted. On August 4, 2008, the trial court sentenced Cook to three years of community
control for the burglary. As for the assault, the court imposed six months in jail, all of
which was suspended. The court imposed “concurrent” fines of $200 for each offense.
Houghton again represented the State at the sentencing hearing.
{¶ 5} On June 2, 2010, Cook was brought before the trial court and notified that
the probation department was charging him with violating his community control sanctions.
The court indicated that counsel would be appointed, and continued the hearing until June
10. On June 10, Cook stipulated to the existence of probable cause, but indicated that he
would like to contest the merits of the alleged violations. The court scheduled a hearing for
June 15. Houghton appeared for the State at both the June 2 and June 10, 2010 hearings.
{¶ 6} Selvaggio represented the State at the June 15, 2010 revocation hearing.
The State presented the testimony of Cook’s probation officer and argued that Cook’s
community control should be revoked. The court, however, continued Cook on community
control, with additional requirements, including that Cook be placed on house arrest at his
brother-in-law’s home pending admittance to a residential treatment program. The trial
court informed Cook that, if he violated community control, he faced 18 months in prison
for the burglary and six months in jail for the assault, to be served concurrently.
{¶ 7} In 2012, Selvaggio was elected to the Champaign County Court of Common
Pleas, General Division, upon the retirement of the original trial judge. Selvaggio’s term
was effective January 1, 2013.
[Cite as State v. Cook, 2014-Ohio-3165.]
{¶ 8} In April 2013, Cook was brought before the trial court on allegations that he
had violated his community control by failing to keep his probation officer apprised of his
residence since June 28, 2010, and by testing positive for marijuana. A revocation hearing
was held before Judge Selvaggio on May 9, 2013; Cook did not object to Judge Selvaggio’s
presiding over the hearing.
{¶ 9} Cook’s probation officer testified at the revocation hearing that Cook had
been at large since shortly after the June 15, 2010 revocation hearing and that, upon Cook’s
apprehension, he provided a urine sample that tested positive for marijuana. Cook testified
that his brother-in-law’s home was an “unhealthy” environment, that he tried to contact his
parole officers and the adult parole authority but was “super confused,” and he eventually
got married and “continued on with my life.” Cook testified that he smokes marijuana to
self-medicate for various medical conditions. The trial court revoked Cook’s community
control and sentenced him to an aggregate term of 18 months in prison.
{¶ 10} Cook appeals from the trial court’s judgment.
{¶ 11} Cook’s first assignment of error states: “The Trial Judge erred by not
recusing himself from the proceeding pursuant to The Ohio Code of Judicial Conduct.”
{¶ 12} Cook claims that Judge Selvaggio, the trial judge at the 2013 revocation
hearing, should have recused himself, because he personally participated in the prosecution
of Cook while the county prosecutor. Cook cites to the Ohio Code of Judicial Conduct,
Rule 2.11, which provides, in part:
(A) A judge shall disqualify himself or herself in any proceeding in which
the judge’s impartiality might reasonably be questioned, including but not
limited to the following circumstances: * * *
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(7) The judge meets any of the following criteria:
(a) The judge served as a lawyer in the matter in controversy or was
associated with a lawyer who participated substantially as a lawyer in
the matter during such association;
(b) The judge served in governmental employment, and in such
capacity participated personally and substantially as a lawyer or
public official concerning the particular matter, or has publicly
expressed in such capacity an opinion concerning the merits of the
particular matter in controversy;
(c) The judge was a material witness concerning the matter;
(d) The judge previously presided as a judge over the matter in
another court.
(Emphasis added.) Cook emphasizes that Judge Selvaggio, while the county prosecutor,
appeared for State as trial counsel during Cook’s 2010 revocation hearing and personally
advocated for the revocation of Cook’s community control at that time.
{¶ 13} At the outset, “R.C. 2701.03 sets forth the procedures for seeking
disqualification of a common pleas court judge for prejudice. Under that statute, a party
may file an affidavit of disqualification with the clerk of the supreme court. The Chief
Justice of the Supreme Court of Ohio or his designee determines whether the judge is biased
or prejudiced. Callison v. DuPuy, Miami App. No.2002 CA 52, 2003-Ohio-3032, ¶ 22,
citing Beer v. Griffith (1978), 54 Ohio St.2d 440, 441, 377 N.E.2d 775 and Section 5(C),
Article IV, Ohio Constitution. This procedure provides ‘the exclusive means by which a
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litigant may claim that a common pleas judge is biased and prejudiced.’ Jones v.
Billingham (1995), 105 Ohio App.3d 8, 11, 663 N.E.2d 657.” State v. Galluzzo, 2d Dist.
Champaign No. 2004-CA-25, 2006-Ohio-309, ¶ 15; Mathewson v. Mathewson, 2d Dist.
Greene No. 05-CA-35, 2007-Ohio-574, ¶ 36. Cook did not seek the disqualification of the
trial judge under R.C. 2701.03. Accordingly, we have no authority to review the issue of
the trial judge’s alleged bias and prejudice. E.g., State v. Osie, Slip Opinion No.
2014-Ohio-2966, ¶ 62-65.
{¶ 14} Even if we were to consider the issue, the Ohio Supreme Court has expressly
stated that the failure to timely object to a trial judge’s participation in a particular cause
results in waiver of that objection. The Supreme Court stated: “In the absence of
extraordinary circumstances, an affidavit of disqualification should not be used to disqualify
a judge after lengthy proceedings have taken place in the case. A party may be said to have
waived the right to obtain a judge’s disqualification when the alleged basis therefor has been
known to the party for some time, but the objection is raised in an untimely fashion, well
after the judge has participated in the proceedings.” In re Disqualification of Pepple, 47
Ohio St.3d 606, 546 N.E.2d 1298 (1989). See also, e.g., In re Disqualification of Spon, 134
Ohio St.3d 1254, 2012-Ohio-6345, 984 N.E.2d 1069, ¶ 34 (“[I]t is well settled that an
affidavit of disqualification must be filed as soon as possible after the affiant becomes aware
of circumstances that support disqualification and that failure to do so may result in waiver
of the objection.”).
{¶ 15} Moreover, we addressed and rejected arguments identical to Cook’s under
similar facts in State v. Brown, 2d Dist. Champaign No. 2013-CA-13, 2014-Ohio-2301 and
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State v. Louden, 2d Dist. Champaign Nos. 2013-CA-30 & 2013-CA-31, 2014-Ohio-3059.
In both cases, we reasoned that the defendant waived his objection to the trial judge’s
presiding over his hearing by not filing an affidavit of disqualification, even though the
judge had previously participated as a prosecutor in the same case. As we stated in Brown:
Brown did not raise this issue while the case was pending in the trial
court. Brown’s remedy for a claim of judicial bias and prejudice based upon
facts known to him before trial was to seek to disqualify the trial judge by
means of an affidavit of bias or prejudice filed with the Supreme Court of
Ohio pursuant to R.C. 2701.03. This affidavit should have been filed prior
to the hearing on Brown’s alleged community control violations, at which the
trial judge made factual findings against Brown. State v. Scharsch, 2d Dist.
Champaign No. 2013-CA-38, 2014-Ohio-1756, ¶ 9, citing In re
Disqualification of Pepple, 47 Ohio St.3d 606, 607, 546 N.E.2d 1298 (1989).
By not filing an affidavit of bias before trial, Brown elected to be tried
by the trial judge assigned to his case. In fairness to the State, he should not
be allowed to seek a favorable outcome from that trial judge while retaining
the ability to raise the bias and prejudice issue in the event of an unfavorable
outcome.
(Footnote omitted.) Brown at ¶ 11-12. See also State v. Batty, 4th Dist. Ross No. 13 CA
3398, 2014-Ohio-2826 (defendant waived argument that the trial judge, who had previously
served as a prosecutor in the case, was not qualified to preside over the case by failing to
object and by not filing an affidavit of prejudice with the Supreme Court of Ohio).
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{¶ 16} Cook does not argue on appeal that he was unaware that Judge Selvaggio
had personally participated as a prosecutor in his criminal case, and the record reflects that
he was. Cook was present at the January 28, 2008 arraignment, the March 10, 2008 pretrial
conference, and the June 15, 2010 community control violation hearing; Selvaggio appeared
as the prosecutor for each of these hearings. Cook had the same defense counsel for both
the 2010 community control violation hearing, during which Selvaggio appeared as the
prosecutor, and the 2013 community control violation, over which Selvaggio presided as
judge. Cook’s dialogue with Judge Selvaggio during sentencing for the 2013 community
control violation reflected Cook’s awareness, at that time, that Judge Selvaggio had been a
prosecutor on his case. Despite his awareness, Cook did not, at any time, seek
disqualification or recusal of the judge. Instead, Cook elected to permit the trial court to
conduct the 2013 revocation hearing, without objection. Under these circumstances, Cook
has waived any error in the trial court’s participation in the revocation proceeding.
{¶ 17} Cook’s first assignment of error is overruled.
{¶ 18} Cook’s second assignment of error states: “Appellant was denied the
effective assistance of counsel in violation of his rights under the 6th Amendment [to] the
United States Constitution and Article 1, Section 10 of the Ohio Constitution.”
{¶ 19} To reverse a conviction based on ineffective assistance of counsel, an
appellant must demonstrate both that trial counsel's conduct fell below an objective standard
of reasonableness and that the errors were serious enough to create a reasonable probability
that, but for the errors, the result of the trial would have been different. Strickland v.
Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42
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Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption
that his or her conduct falls within the wide range of reasonable assistance. Strickland, 466
U.S. at 688. Hindsight is not permitted to distort the assessment of what was reasonable in
light of counsel’s perspective at the time, and a debatable decision concerning trial strategy
cannot form the basis of a finding of ineffective assistance of counsel. State v. Cook, 65
Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v. Rucker, 2d Dist. Montgomery No.
24340, 2012-Ohio-4860, ¶ 58.
{¶ 20} Cook claims that his trial counsel acted deficiently for two reasons. First,
he argues that his counsel was ineffective for failing to challenge Judge Selvaggio’s
presiding over the 2013 revocation hearing. Second, he asserts that his trial counsel should
have requested a competency evaluation and/or entered a not guilty by reason of insanity
(NGRI) plea.
{¶ 21} With respect to the trial court’s presiding over the 2013 revocation hearing,
there is no indication in the record that the outcome of the hearing would have been different
had the trial judge recused himself and another judge presided over the hearing. The facts
presented at the hearing – notably that Cook violated his house arrest shortly after the first
(2010) revocation hearing, Cook had previously absconded, his whereabouts were unknown
for approximately three years, and he continued to use marijuana – supported the trial court’s
conclusion that he was not amenable to community control. In addition, as we stated in
Brown, “it could have been trial strategy on the part of trial counsel to not seek
disqualification of the particular trial judge in this case, if trial counsel had reason to believe
that this particular judge would be more familiar with the facts and more lenient than another
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judge.” Brown at ¶ 18.
{¶ 22} In addition, we find no support in the record that Cook was incompetent or
satisfied the criteria for a NGRI plea. Cook’s discussions with the trial court reflect that he
may have low cognitive abilities and that he needed some guidance and support to live
independently. During sentencing on the community control violations in 2013, Cook
indicated that he did not understand some of the legal terms and notifications that the court
provided. However, the court was able to clarify those matters using simpler terms, and
there is no indication that Cook was unable to understand the court proceedings and to assist
with his defense.
{¶ 23} Cook’s second assignment of error is overruled.
{¶ 24} The trial court’s judgment will be affirmed.
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DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Jane A. Napier
Sean J. Vallone
Hon. Nick A. Selvaggio