[Cite as State v. Brown,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Appellate Case No. 2013-CA-13 Plaintiff-Appellee : : Trial Court Case No. 2010-CR-07 v. : : LARRY C. BROWN, JR. : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : :

........... OPINION Rendered on the 30th day of May, 2014. ...........

KEVIN S. TALEBI, Atty. Reg. #0069198, by JANE A. NAPIER, Atty. Reg. #0061426, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorneys for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. #0076791, 75 North Pioneer Boulevard, Springboro, Ohio 45066 Attorney for Defendant-Appellant

.............

FAIN, J.

{¶ 1} Defendant-appellant Larry C. Brown, Jr. appeals from his conviction and

sentence for violating the terms of his community control while he was on judicial release. 2

Brown contends that the trial judge, who was formerly the prosecutor involved in his criminal

case, was biased and prejudiced against Brown. Also, Brown contends that his trial counsel

provided ineffective assistance by failing to raise the issue of the trial judge’s bias and prejudice.

Finally, Brown contends that the four-year prison sentence imposed by the trial court is contrary

to law, because it exceeds the three-year maximum sentence for third-degree felonies that became

effective in September 2011.

{¶ 2} We conclude that Brown forfeited the issue of the trial court’s alleged bias and

prejudice when he failed to seek disqualification of the trial judge through an affidavit of bias or

prejudice pursuant to R.C. 2701.03. We conclude that Brown has failed to demonstrate that he

received ineffective assistance of trial counsel. We also conclude that Brown’s sentence is not

contrary to law. Accordingly, the judgment of the trial court is Affirmed.

I. After Brown Successfully Moved for Judicial Release, He Violated His Community

Control and the Trial Court Reimposed Brown’s Original Sentence

{¶ 3} In January 2010, a Champaign County Grand Jury indicted Larry C. Brown, Jr.

on one count of Improper Handling of Firearms in a Motor Vehicle, a fourth-degree felony in

violation of R.C. 2923.16(A)(1); one count of Shooting at Wild Animal Along a Roadway, a

fourth-degree misdemeanor in violation of R.C. 1531.02; one count of Hunting by the Aid/Use of

a Motor Vehicle Conveyance, a fourth-degree misdemeanor in violation of R.C. 1531.02; one

count of Having Weapons While Under Disability, a third-degree felony in violation of R.C.

2923.13; and one count of Possession of Marijuana, a minor misdemeanor in violation of R.C.

2925.11(A). The State subsequently dismissed the one count of Possession of Marijuana. [Cite as State v. Brown,

.] {¶ 4} A jury found Brown not guilty of the Improper Handling of Firearms in a Motor

Vehicle count and guilty on the remaining three counts. Brown was sentenced to thirty days in

jail on each of the fourth-degree misdemeanor counts and to four years in prison on the

third-degree felony count, Having Weapons While Under Disability. The trial court made the

two 30-day sentences consecutive to each other and concurrent with the four-year prison term.

The trial court also fined Brown a total of $500 and suspended his hunting license for a period of

three years. The trial court then ordered Brown to be on post-release control for three years

following his release from prison, noting that a post-release control violation could result in

prison or jail time for up to one-half of the original sentence. Brown did not appeal from his

judgment of conviction and sentence.

{¶ 5} In May 2011, Brown moved for Judicial Release from prison. The trial court

granted Brown’s motion, releasing him from prison on September 30, 2011. As part of the

judicial release, the trial court placed Brown on community control for three years and noted that

if Brown’s community control was subsequently revoked, then Brown would be sentenced to

four years on the count of Having Weapons While Under Disability and thirty days on each of the

remaining two counts. The trial court also stated that upon release from prison Brown would be

on post-release control for three years and if Brown were to violate post-release control, the

violation would result in prison or jail time for up to one-half of the original sentence. As part of

his judicial release from prison, Brown agreed not to consume alcohol and to pay $50 per month

to the Champaign County Clerk of Court.

{¶ 6} In October 2012, the trial court held a probable cause and merits hearing on

allegations that Brown had violated his community control. The trial court found Brown guilty

of a community control violation, based on evidence that Brown had operated a motor vehicle 4

while under the influence of alcohol and had failed to pay monies due in his criminal case. The

trial court returned Brown to community control with the previously outlined conditions, adding

a condition that Brown may not drive a motor vehicle. The trial court also ordered Brown to

successfully complete the residential program at West Central Community Based Correctional

Facility. Once again, the trial court noted that if Brown were to violate his community control

conditions, a four-year sentence would be imposed on his Having Weapons While Under

Disability conviction and thirty-day sentences would be imposed on each of his remaining two

convictions.

{¶ 7} In March 2013, a hearing was held on further alleged violations of Brown’s

community control. Based on the evidence before it, the trial court found that Brown had

violated his community control in February 2013, when he was unsuccessfully discharged from

the residential program at West Central Community Based Correctional Facility. The trial court

then revoked Brown’s community control sanctions and imposed the following terms of

imprisonment: four years in prison on the one count of Having Weapons While Under

Disability and thirty days in jail on each of the remaining two counts. The trial court ran all

sentences concurrent to one another and noted a total jail-time credit of 570 days. The trial court

also ordered that Brown would be subject to post-release control for three years after his release

from prison.

{¶ 8} From his community control violation finding and sentence, Brown appeals.

II. Brown Failed to File an Affidavit of Bias or Prejudice

with the Supreme Court of Ohio 5

{¶ 9} Brown’s First Assignment of Error states:

THE TRIAL COURT FAILED TO ACT IMPARTIALLY AND

UNBIASED WHEN IT REVOKED THE APPELLANT’S COMMUNITY

CONTROL SANCTIONS AND SENTENCED THE APPELLANT TO FOUR

YEARS IN PRISON.

{¶ 10} In this assignment of error, Brown contends that “[i]t is plain and clear that it was

impossible for the trial court judge in March 2013, who was the same individual who sat as the

prosecuting attorney against this Defendant just five months earlier, to not harbor a hostile feeling

or ill will toward the Defendant.” Brief, p. 6-7. In his brief, Brown also cites Canon 3 of the

Code of Judicial Conduct and defines “[t]he term ‘bias or prejudice.’” Brief, p. 6.

{¶ 11} In essence, Brown contends that the trial judge should have been disqualified

from determining whether Brown violated his community control due to the fact that the trial

judge had formerly been the prosecutor in Brown’s criminal case.1 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,

, citing In re

Disqualification of Pepple,

, 607,

(1989).

1 We find nothing in the record, beyond the fact that the trial judge had earlier been the prosecutor in this case, to suggest that the trial judge was, in fact, biased and prejudiced against Brown. 6

{¶ 12} 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.

{¶ 13} Brown’s First Assignment of Error is overruled.

III. Brown Has Failed to Demonstrate Ineffective Assistance of Trial Counsel

{¶ 14} Brown’s Second Assignment of Error states:

APPELLANT WAS DENIED HIS CONSTITUTIONALLY

GUARANTEED RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN

TRIAL COUNSEL FAILED TO REQUEST THAT THE TRIAL COURT

JUDGE RECUSE HIMSELF DUE TO HIS PRIOR INVOLVEMENT IN THE

CASE AS PROSECUTOR.

{¶ 15} A claim of ineffective assistance of trial counsel requires both a showing that trial

counsel’s representation fell below an objective standard of reasonableness, and that the

defendant was prejudiced as a result. Strickland v. Washington,

,

,

(1984). A reviewing court “must indulge in a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.”

.

The prejudice prong requires a finding that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different, with a reasonable

probability being “a probability sufficient to undermine confidence in the outcome.”

. 7

See also State v. Bradley,

,

(1989).

{¶ 16} Brown contends that his trial counsel’s failure to raise an obvious issue of bias

and prejudice clearly fell below any objective standard of reasonableness and “there is simply no

way to know how the revocation hearing would have come out had the trial court judge properly

recused himself after such a request from defense counsel and the matter had been tried to an

unbiased and impartial judge.” Brief, p. 7-8.

{¶ 17} Brown’s claim of ineffective assistance of counsel fails for at least two reasons.

First, Brown concedes in his brief that there is no way of knowing how his revocation hearing

would have turned out if the trial court judge had recused himself. In short, Brown concedes

that he cannot show “that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

. Indeed, the

record before us supports the findings made by the trial court and supports a revocation of

Brown’s community control. Therefore, we have no basis in this record for concluding that

there is a reasonable probability that the result of the proceeding would have been different if

another judge had presided over this case.

{¶ 18} Second, we conclude that 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 judge. Consequently, based on our review of the record before us, we conclude that

Brown has failed to demonstrate that his trial counsel provided ineffective assistance.

{¶ 19} Brown’s Second Assignment of Error is overruled. 8

IV. The Trial Court’s Reimposition of Brown’s

Sentence Is Not Contrary to Law

{¶ 20} Brown’s Third Assignment of Error states:

THE TRIAL COURT VIOLATED THE MANDATES OF OHIO LAW

WHEN SENTENCING APPELLANT TO FOUR YEARS IN PRISON UPON

ITS FINDING THAT APPELLANT VIOLATED THE TERMS OF HIS

COMMUNITY CONTROL.

{¶ 21} In July 2010, Brown was sentenced to four years in prison on his third-degree

felony of Having Weapons While Under Disability. Amendments to Ohio’s sentencing statutes

were made effective on September 30, 2011 by 2011 House Bill 86 (H.B. 86). Pursuant to these

amendments, a prison sentence for a third-degree felony of Having Weapons While Under

Disability was limited to no more than three years.

{¶ 22} The General Assembly expressly provided in Section 4 of H.B. 86 when the

amendments were to be applicable: “The amendments * * * apply to a person who commits an

offense specified or penalized under those sections on or after the effective date of this section

and to a person to whom division (B) of section 1.58(B) of the Revised Code makes the

amendments applicable.” R.C. 1.58(B) identifies which law to apply when a statute is amended

after the commission of a crime, but before sentence is imposed: “If the penalty, forfeiture, or

punishment for any offense is reduced by a reenactment or amendment of a statute, the penalty,

forfeiture, or punishment, if not already imposed, shall be imposed according to the statute as

amended.” [Cite as State v. Brown,

.] {¶ 23} The key phrase in R.C. 1.58(B) is “if not already imposed.” There is no question

in this case that Brown’s four-year sentence was first imposed in July 2010, prior to the effective

date of H.B. 86. Brown then moved for judicial release, which was granted. The judicial

release statute, R.C. 2929.20, provides, in part:

(K) If the court grants a motion for judicial release under this section, the

court shall order the release of the eligible offender, shall place the eligible

offender under an appropriate community control sanction, under appropriate

conditions, and under the supervision of the department of probation serving the

court and shall reserve the right to reimpose the sentence that it reduced if the

offender violates the sanction. If the court reimposes the reduced sentence, it

may do so either concurrently with, or consecutive to, any new sentence imposed

upon the eligible offender as a result of the violation that is a new offense. The

period of community control shall be no longer than five years. The court, in its

discretion, may reduce the period of community control by the amount of time the

eligible offender spent in jail or prison for the offense and in prison. * * *

(Emphasis added.)

{¶ 24} After receiving judicial release, Brown was found to have violated the terms of

his community control. As a result, the trial court, pursuant to R.C. 2929.20, “reimposed”

Brown’s sentence in March 2013. While it is true that this reimposition of Brown’s sentence

occurred after the effective date of H.B. 86, we conclude that Brown is not entitled to the reduced

penalties in the amended version of R.C. 2929.14. A reimposition of an original sentence under

which a defendant has served some time in prison and then been granted judicial release is

different from a sentence that is “not already imposed.” R.C. 1.58(B). Because we have 10

concluded that Brown is not entitled to the reduced penalties set forth in H.B. 86, we conclude

that the trial court’s sentence is not contrary to law.

{¶ 25} Brown’s Third Assignment of Error is overruled.

V. Conclusion

{¶ 26} All of Brown’s assignments of error having been overruled, the judgment of the

trial court is Affirmed.

.............

FROELICH, P.J., and WELBAUM, J., concur.

Copies mailed to:

Kevin S. Talebi Jane A. Napier Marshall G. Lachman Hon. Nick A. Selvaggio