State v. Hardesty (In re Forchione)

120 N.E.3d 855, 155 Ohio St. 3d 1254, 2018 Ohio 5437
CourtOhio Supreme Court
DecidedAugust 3, 2018
DocketNo. 18-AP-091
StatusPublished
Cited by1 cases

This text of 120 N.E.3d 855 (State v. Hardesty (In re Forchione)) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hardesty (In re Forchione), 120 N.E.3d 855, 155 Ohio St. 3d 1254, 2018 Ohio 5437 (Ohio 2018).

Opinion

O'Connor, C.J.

*1254{¶ 1} Jonathan T. Sinn, counsel for the defendant, has filed an affidavit with the clerk of this court pursuant to R.C. 2701.03 seeking to disqualify Judge Frank G. Forchione from presiding over any further proceedings in the above-referenced case, now pending for trial.

{¶ 2} Mr. Sinn claims that Judge Forchione is biased against the defendant based on information that the judge received ex parte from the prosecutor's office before the initial pretrial conference. Mr. Sinn is also critical of Judge Forchione's participation in plea negotiations and claims that the judge is personally hostile toward him.

*856{¶ 3} Judge Forchione has responded in writing to the affidavit and believes that there is no basis for his disqualification. According to the judge, he has adopted a pretrial policy by which prior to the first court conference, the parties may provide the court with documents that could assist him in understanding the case and make the initial pretrial meaningful. In this case, Judge Forchione acknowledged receiving and reviewing the indictment, police report, and another report-presumably from the prosecutor-before the first pretrial. The judge also acknowledges that during the first pretrial, he "expressed discomfort" with the parties' proposed plea bargain and suggested a longer sentence. The judge states that he also advised the defendant that he would not be punished for choosing to exercise his constitutional right to a jury trial. Finally, Judge Forchione notes that although Mr. Sinn has engaged in challenging and disrespectful behavior during this litigation, the judge has treated him fairly.

{¶ 4} For the reasons explained below, Mr. Sinn has not established that Judge Forchione's disqualification is warranted.

{¶ 5} As an initial matter, an affidavit of disqualification must be filed "as soon as possible after the incident giving rise to the claim of bias and prejudice occurred," and the failure to do so may result in waiver of the objection, *1255especially when "the facts underlying the objection have been known to the party for some time." In re Disqualification of O'Grady , 77 Ohio St.3d 1240, 1241, 674 N.E.2d 353 (1996). Most of the events giving rise to Mr. Sinn's affidavit occurred before or during the first pretrial conference in January 2018. Yet Mr. Sinn waited until July 27, 2018-just ten days before the scheduled trial-to file his affidavit. Because nothing in the record justifies the delay in filing the affidavit, Mr. Sinn has waived the right to disqualify Judge Forchione based on the judge's alleged conduct at the initial pretrial conference. See In re Disqualification of Corrigan , 91 Ohio St.3d 1210, 741 N.E.2d 137 (2000) (affiant waived objections to judge when incidents giving rise to claim of bias occurred "several months prior to the filing of the affidavit" and affidavit was filed "less than three weeks before the scheduled trial").

{¶ 6} Even if Mr. Sinn had not waived his objections to Judge Forchione, the record does not set forth sufficient grounds for disqualification. In disqualification requests, "[t]he term 'bias or prejudice' 'implies a hostile feeling or spirit of ill-will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.' " In re Disqualification of O'Neill , 100 Ohio St.3d 1232, 2002-Ohio-7479, 798 N.E.2d 17, ¶ 14, quoting State ex rel. Pratt v. Weygandt , 164 Ohio St. 463, 469, 132 N.E.2d 191 (1956). "The statutory right to seek disqualification of a judge is an extraordinary remedy. * * * A judge is presumed to follow the law and not to be biased, and the appearance of bias or prejudice must be compelling to overcome these presumptions." In re Disqualification of George , 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5.

{¶ 7} Mr. Sinn primarily alleges that during the first pretrial, Judge Forchione improperly relied on ex parte information from the prosecutor's office. Specifically, Mr. Sinn asserts that the prosecutor sent the judge various documents on January 5, 2018, pursuant to the judge's pretrial policy, but the prosecutor failed to provide the documents to the defendant until three days later. In response, Judge Forchione identifies the documents he received from *857the prosecutor's office, but the judge fails to explain why he would have received those documents before defense counsel. As the Code of Judicial Conduct directs, "[t]o the extent reasonably possible, all parties or their lawyers shall be included in communications with a judge." Jud.Cond.R. 2.9, Comment 1. Judge Forchione should ensure that if parties submit documents to him, they include all other parties or their counsel in those communications. In disqualification requests, however, the issue is narrow and focused on the ability of a judge to fairly and impartially preside over a particular case. Although a judge's improper ex parte communications may result in the judge's removal from a case, see, e.g. , In re Disqualification of Sheward , 134 Ohio St.3d 1226, 2012-Ohio-6289, 982 N.E.2d 717, Mr. Sinn has *1256

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Cite This Page — Counsel Stack

Bluebook (online)
120 N.E.3d 855, 155 Ohio St. 3d 1254, 2018 Ohio 5437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hardesty-in-re-forchione-ohio-2018.