State v. Murrill

2021 Ohio 1449

• Court: Ohio Court of Appeals
• Decided: April 26, 2021
• Docket: CA2020-08-081
• Status: Published

Opinion

[Cite as State v. Murrill, 2021-Ohio-1449.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, : CASE NO. CA2020-08-081

Appellee, : OPINION 4/26/2021 : - vs - :

MICKEY MURRILL, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2018-02-0219

Michael T. Gmoser, Butler County Prosecuting Attorney, Stephen M. Wagner, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Christopher P. Frederick, 200 High Street, Suite 550 Hamilton, Ohio 45011, for appellant

M. POWELL, P.J.

{¶ 1} Appellant, Mickey Murrill, appeals a decision of the Butler County Court of

Common Pleas denying his petition for postconviction relief ("PCR petition").

{¶ 2} Appellant was indicted in February 2018 on 25 sexual offenses, including first-

degree felony kidnapping with a sexual motivation specification in violation of R.C.

2905.01(A)(2), and first-degree felony rape in violation of R.C. 2907.02(A)(1)(b). Butler CA2020-08-081

Appellant's 25 charges stemmed from his actions with several children he knew through

friends and family. The case was assigned to a judge on the Butler County Court of

Common Pleas ("trial judge").

{¶ 3} In September 2018, appellant pled guilty to the rape and kidnapping charges

and to one count of gross sexual imposition, two counts of illegal use of a minor in a nudity-

oriented material or performance, two counts of pandering sexually oriented material

involving a minor, and three counts of voyeurism.

{¶ 4} Appellant's sentencing hearing was held on October 16, 2018. The trial judge

accepted the parties' stipulation that a prison term of life without parole would not be

imposed on the rape conviction. The trial judge sentenced appellant to an indefinite prison

term of 10 years to life for the kidnapping offense and an indefinite prison term of 15 years

to life for the rape offense and ordered these two sentences to run consecutively to each

other. Based on the parties' stipulation, these sentences were imposed with the possibility

of parole after serving the aggregate minimum sentence. For the remaining offenses, the

trial judge merged one offense with the kidnapping offense, imposed definite prison terms

on the remaining felony offenses, and ordered that these prison terms be served

concurrently with the indefinite sentences imposed for the rape and kidnapping offenses,

for an aggregate prison sentence of 25 years to life. Appellant was designated a Tier III

sex offender. Appellant appealed his sentence, arguing that the consecutive sentences

were contrary to law because the trial judge failed to make the required findings under R.C.

2929.14(C)(4). We upheld appellant's sentence in State v. Murrill, 12th Dist. Butler No.

CA2018-11-215, 2019-Ohio-3318.

{¶ 5} On October 24, 2018, eight days after sentencing appellant, the trial judge

recused himself in an unrelated criminal case. In that case, defendant Dustin Lawrence

was convicted of sexual offenses, including rape and kidnapping, and was sentenced to 33

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years in prison by the trial judge in May 2017. The trial judge's recusal occurred during

postconviction relief proceedings. The trial judge's entry of recusal explained that a member

of his family "had been the victim of a similar crime which may have impacted the Court's

original sentencing determination." By letter dated March 19, 2019, the Butler County

Prosecutor's Office notified the defendants who had been sentenced by the trial judge for

similar crimes of the judge's recusal in the Lawrence case. Appellant received this notice

with respect to his rape and kidnapping convictions.

{¶ 6} Appellant filed, pro se, a PCR petition, arguing that the trial judge was biased

against him, thus violating his due process rights. The Ohio Supreme Court assigned a

retired judge to preside over the PCR proceedings. The retired judge appointed counsel

for appellant, construed the PCR petition as alleging that the trial judge's decision to

sentence appellant to consecutive prison terms on the rape and kidnapping offenses was

because of judicial bias, and scheduled an evidentiary hearing. On July 29, 2020, two

weeks after the evidentiary hearing, the trial court denied appellant's PCR petition. Citing

this court's opinions in State v. Lawrence, 12th Dist. Butler Nos. CA2017-06-078 and

CA2019-03-048, 2020-Ohio-855; and State v. Sharp, 12th Dist. Butler No. CA2019-10-181,

2020-Ohio-3497, in which we rejected similar claims of judicial bias from sex offenders

sentenced by the trial judge, the trial court found that

Counsel for Murrill argues that the trial judge was obliged to inform Murrill prior to sentencing that he was potentially biased because of the nature of Murrill's crimes. This contention assumes that the trial judge was biased or potentially biased. Given the pronouncements of the court of appeals in Lawrence and Sharp, this argument is perforce unavailing. There is no evidence of bias or potential bias, direct or circumstantial.

{¶ 7} Appellant now appeals, raising one assignment of error:

{¶ 8} MR. MURRILL WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS OF

LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS WHEN THE -3- Butler CA2020-08-081

TRIAL COURT FAILED TO DISCLOSE A POTENTIAL BIAS AGAINST HIM.

{¶ 9} Relying upon the trial judge's entry of recusal in the Lawrence case, appellant

argues that he was deprived of his due process rights when the trial judge failed to disclose

a potential bias against him at sentencing. Appellant further argues that the trial judge "had

the duty to recuse himself [in the case at bar] after his impartiality was disclosed," and that

his failure to recuse violated the Ohio Code of Judicial Conduct.

{¶ 10} The avenue for redress when a party alleges violation of the Ohio Code of

Judicial Conduct or error in a judge's failure to recuse is to file an affidavit of disqualification

with the Ohio Supreme Court under R.C. 2701.03. See State v. Stumph, 1st Dist. Hamilton

No. C-190318, 2021-Ohio-723; State v. Payne, 149 Ohio App.3d 368, 2002-Ohio-5180 (7th

Dist.). "[A]ny allegations of judicial misconduct are not cognizable on appeal, but [are] a

matter properly within the jurisdiction of the Disciplinary Counsel." State v. Williams, 9th

Dist. Summit No. 25827, 2011-Ohio-6067, ¶ 14. "Thus, an appellate court lacks the

authority to pass upon the disqualification of a common pleas judge or to void a judgment

of a trial court on that basis." Wilburn v. Wilburn, 169 Ohio App.3d 415, 2006-Ohio-5820,

¶10 (9th Dist.). We therefore decline to address appellant's argument that the trial judge's

failure to recuse in the case at bar violated the Ohio Code of Judicial Conduct. Payne at ¶

11.

{¶ 11} While a court of appeals cannot reverse a common pleas court's judgment

based upon failure to recuse, it can address allegations that a defendant's due process

rights were violated. Id. Ohio courts have held that a judicial bias claim may be interpreted

"as an argument that [the defendant's] sentence is contrary to law based on a due process

violation." State v. Johnson, 8th Dist. Cuyahoga No. 107528, 2019-Ohio-4668, ¶ 26;

Stumph at ¶ 25 (appellate courts have jurisdiction to review a claim of bias where an

appellant argues that the trial court's bias impacts the outcome of the case and violates the

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appellant's due process rights).

{¶ 12} We therefore have jurisdiction to review appellant's claim he was deprived of

his due process rights when the trial judge failed to disclose a potential bias against him at

sentencing. See State v. Filous, 8th Dist. Cuyahoga No. 104287, 2016-Ohio-8312, ¶ 12

(defendant argued that his due process rights were violated because the trial court failed to

afford him a fair and impartial sentence and was biased against him given the court's

comments during the sentencing hearing); State v. Power, 5th Dist. Holmes No. 15 CA 1,

2015-Ohio-3001, ¶ 27 (defendant argued that his sentence was contrary to law because

comments made by the trial court during the change of plea and sentencing hearings

indicated the court was prejudiced or biased against him). Appellant essentially argues that

the trial judge's imposition of consecutive sentences was the product of judicial bias given

the judge's recusal in the Lawrence case eight days later.

{¶ 13} It is well settled that a criminal trial before a biased judge is fundamentally

unfair and denies a defendant due process of law. State v. Dean, 127 Ohio St.3d 140,

2010-Ohio-5070, ¶ 48. Judicial bias has been described as "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." Id.

{¶ 14} Judges are presumed not to be biased or prejudiced toward those appearing

before them, and a party alleging bias or prejudice must present evidence to overcome the

presumption. Sharp, 2020-Ohio-3497 at ¶ 11. The evidence must demonstrate an

appearance of bias or prejudice compelling enough to overcome the presumption of judicial

integrity. Id.

{¶ 15} Appellant has failed to present any evidence of the trial judge's judicial bias

or prejudice against him at sentencing. Instead, appellant asks this court to presume that

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the trial judge was biased or prejudiced at his sentencing simply because the judge

expressed a concern he "may" have been biased at sentencing in the Lawrence case. The

trial judge's recusal in that case occurred in the context of a PCR petition filed by Lawrence

15 months after he was originally sentenced by the judge. As we have previously stated,

the trial judge "did not admit to actual bias at [Lawrence's] sentencing hearing. Rather, the

record indicates the judge was second guessing the fairness in his decision to impose

consecutive sentences" at the original sentencing hearing. Lawrence, 2020-Ohio-855 at ¶

27. In other words, the trial judge expressed concern about his state of mind in May 2017

when he originally sentenced Lawrence. Just as "this [did] not amount to an

acknowledgment of actual bias at sentencing, nor [did] it implicate any bias or prejudice at

trial" concerning Lawrence, this likewise "does not amount to an acknowledgment of actual

bias at sentencing, nor does it implicate any bias or prejudice at trial" regarding appellant.

Id. We will not presume otherwise. Id. Appellant's claim "appears to be nothing more than

speculation in an effort to take advantage of events in an unrelated case." Sharp at ¶ 14.

{¶ 16} Moreover, a review of appellant's sentencing hearing fails to establish any

hostile feelings, ill will, undue friendship, or favoritism toward either side. Appellant was

indicted on 25 separate sexual offenses; all but two were felonies. Appellant pled guilty to

ten sexual offenses and the remaining 15 sexual offenses were dismissed. The ten

offenses involved six children as well as unidentified "pre-pubescent children" and an

unidentified "pre-pubescent female." The trial judge accepted the parties' stipulation that a

prison term of life without parole would not be imposed on the rape conviction. Although

the trial judge imposed consecutive sentences on the rape and kidnapping offenses, he did

not impose consecutive sentences on the remaining felony sexual offenses. Had the trial

judge sentenced appellant to consecutive sentences on all counts, appellant would have

faced a minimum of 43 years in prison before parole eligibility.

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{¶ 17} Appellant has not demonstrated anything that would overcome the

presumption of judicial integrity in his case and has failed to show that the trial judge was

biased in imposing the sentence. The assignment of error is overruled.

{¶ 18} Judgment affirmed.

HENDRICKSON and BYRNE, JJ., concur.

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