STATE OF OHIO v. DEMETRIUS TINKER

pellant was indicted for one single count of burglary on December 27,

2018. On February 6, 2019, Appellant entered into a written plea agreement with the

state, in which the state agreed to recommend a sentence of six years, and Appellant

reserved the right to argue for a lesser sentence. At the sentencing hearing, the state

explained that an offer of an agreed sentence of four years was rejected by Appellant,

despite the fact that Appellant had been made aware that the state intended to

recommend a six-year sentence.

{¶3} According to statements made at the sentencing hearing, Appellant

burglarized the residence of an 89-year-old woman, who saw him enter her home through

a side door that leads into her kitchen. The victim’s purse was on the kitchen table

because she had just returned from daily mass. Appellant took the purse from the kitchen

table and fled through the same side door.

{¶4} The victim followed Appellant and observed him entering a neighbor’s

residence located on the opposite side of the street. The victim returned to her home,

called the police, and provided both a description of Appellant and his last known

whereabouts. Another neighbor provided the same information to the police.

{¶5} When the police arrived and knocked at the door of the residence where

Appellant was last seen, a female occupant told them that she was alone in the house.

After some conversation, she admitted that Appellant was also in the house. When the

police entered the residence, Appellant admitted to burglarizing the victim’s home and

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taking her purse, which was recovered intact. The female occupant, who was Appellant’s

girlfriend, was later charged with obstruction of justice for initially misleading law

enforcement.

{¶6} Although Appellant had no felony record at the time of sentencing, he had

a lengthy misdemeanor record, including theft, obstruction, disorderly conduct, petty theft,

and possession of drug paraphernalia. Appellant’s counsel requested a community

control sanction, which included drug rehabilitation, based on Appellant’s long-standing

struggle with drug addiction.

{¶7} Appellant’s counsel explained that Appellant’s “whole life [had] been a

period of being clean then relapsing, and he is somebody that, absent his addiction, he

probably would not have a criminal history.” (Sentencing Hrg., p. 7.) Appellant, who was

a trustee at the jail, expressed remorse for his actions, which he characterized as a

mistake. At the end of his allocution, Appellant asked for a second chance.

{¶8} Unmoved, the trial court observed that “burglary of an elderly person * * * is

the worst thing that you can do short of killing somebody.” (Id., p. 9.) The trial court

further observed that a person’s home is the one place where that person should feel safe

and secure. Prior to imposing the sentence, the trial court stated:

In my day, as a bailiff and a lawyer, that was a penalty for which you could

get three, four -- two, three, four, or five to fifteen years. And that’s what the

crime should be. It’s something that people should spend a long time in the

penitentiary for. Burglary ain’t a mistake like you characterize it. * * * So

now when this woman comes home at night, she either has to have a dog

or a flashlight or a gun or a friend or a cop or somebody or something with

her so that she can defend herself against who the next person [sic] might

be breaking into her house. There may never be another person. It may

be the boogieman, but in her mind somebody’s in that house. She’ll never

know for sure. She’s always got to wonder if somebody’s waiting behind

the door.

(Id., p. 10-11.) Later in the sentencing hearing, the trial court informed Appellant that “[i]f

[Appellant] broke into [the trial judge’s residence], [the trial judge] would shoot

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[Appellant.]” (Id., p. 14.)

{¶9} The trial court imposed a six-year sentence, which is within the range of

sentences for a second-degree felony. This timely appeal followed.

ASSIGNMENT OF ERROR NO. 1

THE APPELLANT’S PLEA WAS NOT KNOWINGLY, VOLUNTARILY, AND

INTELLIGENTLY MADE.

{¶10} Guilty pleas are governed by Crim.R. 11. Pursuant to Crim.R. 11(C)(2), the

trial judge must engage in a colloquy with a defendant to review the rights that the

defendant is waiving as a result of the guilty plea, and the consequences of the plea. “The

underlying purpose, from the defendant’s perspective, of Crim.R. 11(C) is to convey to

the defendant certain information so that he can make a voluntary and intelligent decision

whether to plead guilty.” State v. Rowbotham, 173 Ohio App.3d 642, 2007-Ohio-6227,

879 N.E.2d 856, ¶ 17 (7th Dist.), citing State v. Ballard, 66 Ohio St.2d 473, 479-480, 423

N.E.2d 115 (1981).

{¶11} As part of the colloquy, the trial court is required to advise the defendant of

certain constitutional and nonconstitutional rights. The constitutional rights are outlined in

Crim.R. 11(C)(2) and include: the right to a jury trial, to confront witnesses against him,

have a compulsory process for obtaining witnesses in his favor, and require the state to

prove all elements beyond a reasonable doubt at a trial where the defendant cannot be

compelled to testify against himself. State v. Bell, 7th Dist. Mahoning No. 14 MA 0017,

2016-Ohio-1440, ¶ 9, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621, ¶ 19-21; Ballard, supra, at 477. The trial court must strictly comply with

informing the defendant of these requirements; if it fails to strictly comply, the defendant’s

plea is invalid. Bell at ¶ 9, citing Veney at ¶ 31; Ballard at 477.

{¶12} The trial court must also advise a defendant of his nonconstitutional rights:

the nature of the charges; the maximum penalty the defendant is subject to, including

postrelease control, if applicable; whether the defendant is eligible for probation or

community control sanctions; and that a trial court may immediately proceed to

sentencing after the plea is accepted. Bell at ¶ 10. Unlike the information required

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regarding constitutional rights, a trial court need only substantially comply with these

requirements. Id. “Substantial compliance means that under the totality of the

circumstances the defendant subjectively understands the implications of his plea and

the rights he is waiving.” Bell at ¶ 10, citing Veney at ¶ 15.

{¶13} A complete failure to advise of one of the non-constitutional rights requires

the vacation of the plea without an analysis of prejudice. State v. Cruz-Ramos, 7th Dist.

Mahoning No. 17 MA 0077, 2019-Ohio-779, 132 N.E.3d 170, ¶ 11. However, if the court's

advisement on a non-constitutional right is considered partial compliance with the rule,

then the plea cannot be vacated unless the defendant demonstrates prejudice. Id.

{¶14} Civ.R. 11(C)(2)(a) provides only that the court shall determine that the

defendant has an understanding of the nature of the charges. It does not require a verbal

explanation by the court, but merely for the court to be satisfied that the defendant in fact

understands the charges. Id. We have repeatedly recognized that a defendant can obtain

the actual elements of the charged offense from “whatever source, be it the trial court, the

prosecutor, or some other source.” State v. Harris, 7th Dist. Mahoning No. 08 MA 0030,

2008-Ohio-6298, ¶ 22, citing State v. Johnson, 7th Dist. Mahoning No. 07 MA 0008, 2008-

Ohio-1065, ¶ 8.

{¶15} Appellant’s signed plea agreement reads, in pertinent part, “COUNSEL

HAS ADVISED ME AND I FULLY UNDERSTAND THE NATURE OF THE CHARGE(S)

AGAINST ME AND THE ELEMENTS CONTAINED THEREIN.” (2/6/2019 Plea

Agreement, p. 1.) At the plea hearing, the trial court inquired, “Do you understand the

nature of the charge and all the elements contained within it?” Appellant responded, “Yes,

sir.” (2/6/19 Plea Hrg., p. 3.)

{¶16} In State v. Johnson, supra, we recognized the validity of a guilty plea where

the plea agreement contained the identical averment quoted above. Id. at ¶14-15.

Appellant cites Johnson, supra, but contends in error that “Appellant [ ] did not sign a

document stating that his attorney advised him and he fully understood the nature of the

charge and the elements of those charges.” (Appellant’s Brf., p. 8.) Because Appellant’s

first assignment of error is based on an incorrect factual argument, and the

acknowledgement in the plea agreement is identical to the acknowledgement in the plea

agreement in Johnson, supra, we find that the first assignment of error has no merit.

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ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT WAS BIASED AGAINST THE APPELLANT AND

DEPRIVED HIM OF A FAIR SENTENCING HEARING.

{¶17} It is well established that a criminal defendant who is tried before a biased

judge has been denied due process. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128,

767 N.E.2d 166, ¶ 34, citing Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d

460 (1986); Tumey v. Ohio, 273 U.S. 510, 534, 47 S.Ct. 437, 71 L.Ed. 749 (1927).

Judicial bias is defined 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 facts.

State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 73 N.E.3d 414, ¶ 33 (2016),

quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956),

paragraph four of the syllabus.

{¶18} However, an appellate court does not have authority to disqualify a trial

court judge or to void the judgment of a trial court judge based on a claim of judicial bias.

State v. Baker, 7th Dist. Belmont No. 18 BE 0018, 2019-Ohio-1807, ¶ 13, citing Paparodis

v. Snively, 7th Dist. Columbiana No. 06-CO-5, 2007-Ohio-6910, ¶ 48, citing State v.

Ramos, 88 Ohio App.3d 394, 398, 623 N.E.2d 1336, (9th Dist.1993). “The Chief Justice

of the Supreme Court of Ohio, or his designee, has exclusive jurisdiction to determine a

claim that a common pleas judge is biased or prejudiced.” Id. citing Jones v. Billingham,

105 Ohio App.3d 8, 11, 663 N.E.2d 657 (2d Dist.1995), citing Section 5(C), Article IV,

Ohio Constitution; Adkins v. Adkins, 43 Ohio App.3d 95, 539 N.E.2d 686 (4th Dist.1988).

{¶19} Even assuming that Appellant’s bias claim was properly before us, the trial

court did not demonstrate bias against Appellant. We have recognized that “opinions

formed by the judge on the basis of facts in the record do not constitute a basis for a bias

or partiality motion unless they display a deep[-]seated antagonism that would make fair

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judgment impossible.” State v. Power, 7th Dist. Columbiana No. 12 CO 14, 2013-Ohio4254, ¶ 26, citing State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶

49.

{¶20} We further observed in Power that “critical, disapproving, or even hostile

statements ordinarily do not support a bias or partiality challenge”. Id. We cited with favor

cases from other districts holding that reversible error has not occurred where a

sentencing judge, in explaining his sentence, makes critical statements about a

defendant’s conduct based upon the facts of the case presented to the court. Id. at ¶ 27,

citing State v. Cemino, 2d Dist. Montgomery No. 24442, 2011-Ohio-5690, ¶ 8, 18-20

(scolding defendant and characterizing what he did as nasty, despicable, disgusting, and

awful was not indicative of bias); and State v. Coomer, 12th Dist. Clinton Nos. CA2009-

09-016, CA2009-09-017, 2010-Ohio-3474, ¶ 18 (trial court’s statement that the defendant

was a psychopath may have been ill-advised, but it was not reversible).

{¶21} Here, the trial court’s sentence was based on the underlying circumstances

of the crime, particularly the age of the victim, rather than any apparent bias against

Appellant. The record reflects that the sentence imposed was based on the law and the

facts adduced at the sentencing hearing.

{¶22} In summary, the Chief Justice of the Supreme Court has exclusive

jurisdiction in regard to judicial disqualification, and, therefore, we find that the second

assignment of error was improperly raised here. Even assuming arguendo that we have

the authority to consider the claim, we find that no evidence of bias against Appellant is

in the record.

For the foregoing reasons, we find that Appellant’s guilty plea was knowing,

intelligent, and voluntary, and that the claim of bias was not properly raised. Accordingly,

Appellant’s conviction and sentence are affirmed.