State v. Marsh

522 N.E.2d 457, 36 Ohio St. 3d 603, 1987 Ohio LEXIS 455

• Court: Ohio Supreme Court
• Decided: December 17, 1987
• Docket: No. 87-AP-275
• Status: Published

Opinion

Moyer, C.J.

The affidavit of disqualification filed herein alleges that Judge John D. Martin pursues a sentencing pattern which would preclude probation if the defendant, Rick Marsh, is convicted or accepts a plea bargain in case No. 87CRJY0102 in the Court of Common Pleas of Fair-field County.

A judge is presumed to follow applicable law in all respects and “[generally, the severity of a sentence imposed in conformity to the law by a trial court rests in the discretion of that court * * *.” State v. Williams (1982), 7 Ohio App. 3d 160, 162, 7 OBR 204, 207, 454 N.E. 2d 1334, 1337.

If it may later be shown that the judge legally erred by not considering required mitigating factors in imposing sentence, that is a matter for appeal and not for an affidavit of disqualification. State v. Baker (1984), 25 Ohio Misc. 2d 11, 15, 25 OBR 232, 236, 495 N.E. 2d 976, 980.

Differences in sentences between judges are to be expected and “the possibility of being sentenced by a more severe judge is one of the hazards of wrongdoing.” Baker, supra, at 15, 25 OBR at 237, 495 N.E. 2d at 981.

For these reasons, the affidavit is found not well-taken and is hereby dismissed.