Opinion
No. 88-AP-175
Submitted February 10, 1989 —
Decided February 10, 1989.
Judges — Affidavit of disqualification — Alleged errors of law or procedure not grounds for disqualification — Judge who presided at trial not automatically disqualified from hearing motion to vacate sentence.
ON AFFIDAVIT OF DISQUALIFICATION.
The affidavit of disqualification filed herein by petitioner-defendant, Wallace Northern, seeks the disqualification of Judge James P. Kilbane from ruling upon affiant's petition for post-conviction relief arising from his 1976 conviction. The affidavit in essence alleges that certain actions by Judge Kilbane deprived affiant of a fair trial.
A judge is presumed to follow applicable law in all respects. In re Disqualification of Grigsby (1988), 36 Ohio St.3d 607, 522 N.E.2d 461. Alleged errors of law or procedure are legal issues subject to appeal and are not grounds for the disqualification of a judge. In re Disqualification of Light (1988), 36 Ohio St.3d 604, 522 N.E.2d 458.
In the absence of evidence of bias, prejudice, or other factors, a judge who presided at trial is not automatically disqualified from hearing a petitioner's motion to vacate or set aside his sentence. Walters v. United States (S.D.N.Y. 1975), 404 F. Supp. 996, affirmed (C.A. 2, 1976), 542 F.2d 1166; Schoonover v. State (1978), 2 Kan. App. 2d 481, 483, 582 P.2d 292, 295. I find no evidence of such bias, prejudice, or other disqualifying factors in the record.
For the foregoing reasons, the affidavit of disqualification is found not well-taken and is hereby dismissed.