State v. Hill , 2012 Ohio 5210 ( 2012 )

[Cite as State v. Hill, 2012-Ohio-5210.]
IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24966
vs. : T.C. CASE NO. 2010 CR 3880
ANDRE C. HILL : (Criminal Appeal from the
Common Pleas Court)
Defendant-Appellant :
.........
OPINION
Rendered on the 9th day of November, 2012.
.........
Mathias H. Heck, Prosecuting Attorney, by R. Lynn Nothstine, Assistant Prosecuting
Attorney, Atty. Reg. No. 0061560, P.O. Box 972, 301 West Third Street, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
James C. Staton, Atty. Reg. No. 0068686, 5613 Brandt Pike, Huber Heights, Ohio 45424
Attorney for Defendant-Appellant
.........
GRADY, P.J.:
{¶ 1} Defendant Andre C. Hill appeals from a judgment of conviction for
possession of cocaine (10 grams but less than 2.5 grams of crack cocaine), R.C. 2925.11(A), a
second degree felony. The judgment was entered by the trial court after accepting a plea of
no contest Defendant entered following the court’s denial of his Crim.R. 12(C)(3) motion to
suppress evidence.
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{¶ 2} The indictment charging the offense of which Defendant was convicted alleges
that his offense occurred on or about December 6, 2010. No hearing was held on
Defendant’s motion to suppress evidence. However, in its Decision and Order overruling
Defendant’s motion, the trial court found that the evidence Defendant moved to suppress was
seized in a search of the premises at 4261 Foxton Court, in Dayton, and that the search was
performed on the authority of a search warrant obtained on December 6, 2010, by Dayton
Police Detective Ryan T. Halburnt.
{¶ 3} The motion to suppress Defendant filed on February 9, 2011 [Dkt. 12] argued
that the search and seizure was illegal because the search warrant Detective Halburnt obtained
was not signed by a judge, having instead been signed by Colette E. Moorman, a magistrate of
the Dayton Municipal Court. R.C. 2933.21 authorizes a judge of a court of record to issue
search warrants. “A search warrant is void ab initio if not signed by a judge prior to the
search.” State v. Williams, 57 Ohio St.3d 24, 565 N.E.2d 563 (1991), syllabus by the court.
{¶ 4} The State argued that the magistrate was authorized to sign the warrant on
December 6, 2010, having been appointed a substitute judge following the death of the
Honorable Dennis J. Greaney, an incumbent judge of the Dayton Municipal Court. The State
attached to its written response a copy of an order signed by the Presiding/Administrative
Judge of the Dayton Municipal Court, appointing the magistrate to serve as a Substitute Judge
of that court “during the absence of Judge Greaney” * * * “for December 6-7, 2010.” The
order was filed on January 3, 2011. The entry also contains an oath of office prescribed for
judges to which the magistrate subscribed on that same date.
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{¶ 5} The trial court agreed with the State and overruled Defendant’s motion to
suppress, writing:
O.R.C. Section 1901.12 permits the appointment of a substitute judge in a
municipal court in the temporary absence of a judge. The State has produced
the order which appointed Moorman as a substitute judge on the day she signed
the search warrant. Accordingly, the search was properly executed, and
Defendant’s motion must be overruled. [Dkt. 16].
{¶ 6} Defendant moved the court to reconsider its decision [Dkt. 18], arguing that
pursuant to R.C. 1901.10(A)(1)(a) appointments following and on account of a judge’s death
must instead be made by the chief justice of the supreme court. The trial court overruled
Defendant’s motion to reconsider, finding that R.C. 1901.10(A)(1)(a) does not apply “because
Moorman was appointed for a limited period of time as opposed to being appointed to
temporarily fill the entire vacancy created by Judge Greaney’s death.” [Dkt. 19].
{¶ 7} Defendant waived his right to a trial and entered a plea of no contest to the
indicted charge on September 22, 2011. [Dkt. 22]. On December 22, 2011, having accepted
Defendant’s plea and found him guilty, the court entered a judgment of conviction imposing a
mandatory term of imprisonment of four years. [Dkt. 33]. Defendant filed a timely notice of
appeal. [Dkt. 35]. He raises two assignments of error on appeal.
{¶ 8} Defendant’s first assignment of error:
“THE APPOINTMENT OF AN INTERIM JUDGE BY OTHER THAN THE CHIEF
JUSTICE OF THE OHIO SUPREME COURT WAS IMPROPER UPON THE DEATH OF
THE SITTING JUDGE.”
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{¶ 9} Defendant’s second assignment of error:
“THE TRIAL COURT ERRED WHEN IT ADMITTED EVIDENCE ACQUIRED BY THE
IMPROPER WARRANT.”
{¶ 10} R.C. 1901.10 provides for filling a vacancy in the office of a judge of the
municipal court. Paragraph (A)(1)(a) of that section states:
The judges of the municipal court and officers of the court shall take an oath of
office, as provided in section 3.23 of the Revised Code. The office of judge of
the municipal court is subject to forfeiture, and the judge may be removed from
office, for the causes and by the procedure provided in sections 3.07 to 3.10 of
the Revised Code. A vacancy in the office of judge exists upon the death,
resignation, forfeiture, removal from office, or absence from official duties for
a period of six consecutive months, as determined under this section, of the
judge and also by reason of the expiration of the term of an incumbent when no
successor has been elected or qualified. The chief justice of the supreme court
may designate a judge of another municipal court to act until that vacancy is
filled in accordance with section 107.08 of the Revised Code. A vacancy
resulting from the absence of a municipal judge from official duties for a
period of six consecutive months shall be determined and declared by the
legislative authority.
{¶ 11} R.C. 107.08, to which R.C. 1901.10(A)(1)(a) refers, provides for filling the
judicial vacancy through an appointment made by the governor, and mirrors the provisions of
Article IV, § 13, Ohio Constitution.
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{¶ 12} R.C. 1901.10(A)(1)(b) provides for instead filling a vacant judicial office
through an election when the vacancy occurs during a designated period prior to the next
general election.
{¶ 13} R.C. 1901.12 provides for the vacation period of judges of the municipal
courts, and states:
(A) A municipal judge is entitled to thirty days of vacation in each calendar
year. Not less than two hundred forty days of open session of the municipal
court shall be held by each judge during the year, unless all business of the
court is disposed of sooner.
(B) When a court consists of a single judge, a qualified substitute may be
appointed in accordance with division (A)(2) of section 1901.10 of the Revised
Code to serve during the thirty-day vacation period, who shall be paid in the
same manner and at the same rate as the incumbent judge, except that, if the
substitute judge is entitled to compensation under division (A)(5) or (6) of
section 141.04 of the Revised Code, then section 1901.121 of the Revised
Code shall govern its payment. If a court consists of two judges, one of the
judges shall be in attendance at the court at all times, and the presiding judge
shall have the authority to designate the vacation period for each judge, and
when necessary, to appoint a substitute for the judge when on vacation or not
in attendance. If a court consists of more than two judges, two-thirds of the
court shall be in attendance at all times, and the presiding judge shall have
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authority to designate the vacation period of each judge, and, when necessary,
to appoint a substitute for any judge on vacation or not in attendance.
{¶ 14} The principal distinction between R.C. 1901.10 and 1901.12 is not with
respect to the period of time of the appointments concerned. The principal distinction is
instead with respect to the predicate event that authorizes the appointment.
{¶ 15} R.C. 1901.10 applies when a judicial office once filled by commission
becomes vacant by reason of any of the events that section identifies, which includes the death
of the incumbent judge. Then, the chief justice of the Supreme Court may designate another
commissioned municipal court judge to act in the vacant position until a successor is
appointed by the governor or following a general election. R.C. 107.08; Article IV, § 13,
Ohio Constitution.
{¶ 16} R.C. 1901.12 applies when a commissioned incumbent judge is temporarily
absent by reason of one or more of the 30 days of vacation which that section authorizes
municipal judges to take. A “substitute judge” must then be appointed by the court’s
presiding judge to serve in the incumbent’s position. The substitute judge’s powers derive
from the incumbent’s commission. A substitute judge cannot be appointed to serve in the
position of a deceased judge, because that judge’s death terminates his or her commission.
Furthermore, death is not a “temporary absence.”
{¶ 17} The Presiding/Administrative Judge of the Dayton Municipal Court was not
authorized to appoint a substitute judge to serve in Judge Greaney’s position following his
death. The further issue is whether that rendered illegal the search and seizure that were
conducted pursuant to the warrant the magistrate signed.
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{¶ 18} Defendant argues that even if the magistrate’s appointment as a substitute
judge was authorized by R.C. 1901.12, she lacked authority to sign the search warrant on or
about December 6, 2010, because she did not subscribe to her oath of office as a judge until
January 3, 2011, the date she was appointed a substitute judge. R.C. 3.23 prescribes the oath
a judge of a court of record must take. Article XV, § 7 of the Constitution of Ohio states:
Every person chosen or appointed to any office under this state, before entering
upon the discharge of its duties, shall take an oath or affirmation, to support the
constitution of the United States, and of this state, and also an oath of office.
{¶ 19} R.C. 3.22 mirrors to the constitutional provision, and states:
Each person chosen or appointed to an office under the constitution or laws of
this state, and each deputy or clerk of such officer, shall take an oath of office
before entering upon the discharge of his duties. The failure to take such oath
shall not affect his liability or the liability of his sureties.
{¶ 20} The oath of office to which the magistrate subscribed on January 3, 2011, upon
her appointment as a substitute judge, did not authorize her to exercise the powers of that
judicial office on December 6-7, 2010, the term of her appointment, because she did not
subscribe to the oath before exercising her powers of office on those dates, which the
magistrate did when she signed the search warrant on December 6, 2010. The further issue is
whether that defect rendered illegal the search and seizure that were conducted pursuant to the
warrant.
{¶ 21} Defendant relies on State v. Williams, which held that a warrant is void ab
initio if not signed by a judge prior to the search. In Williams, the warrant bore no signature
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at all. In the present case, the warrant bore the signature of a person purporting to be a judge.
The warrant did not suffer from the facial defect in Williams, which rendered the warrant
void and therefore precluded application of the “good faith” exception in United States v.
Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See State v. Spaw, 18 Ohio
App.3d 77, 480 N.E.2d 1138 (1984).
{¶ 22} The power and authority of a judicial officer and the validity of her office
cannot be collaterally attacked in a criminal proceeding. Those challenges must instead be
made in an original action in quo warranto to determine whether the judge had a valid title to
her office, in which proceeding the judge herself would be made a party defendant and have
an opportunity to appear and make a defense thereto. Stiess v. State, 103 Ohio St. 33, 41
(1921). That challenge is not reviewable on appeal from an adverse judgment rendered in the
criminal proceeding. State ex rel. Stowell v. Lovinger, 6 Ohio St.3d 21, 450 N.E.2d 1176(1983).
{¶ 23} The two errors Defendant assigns with respect to the trial court’s denial of his
motion to dismiss constitute a collateral attack on his criminal conviction, and are therefore
not reviewable in this appeal from his criminal conviction. Id. Defendant’s two
assignments of error are overruled. The judgment of the trial court will be affirmed.
Donovan, J., and Hall, J., concur.
Copies mailed to:
R. Lynn Nothstine, Esq.
James C. Staton, Esq.
Hon. Barbara P. Gorman
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