Opinion
No. 87-AP-275
Decided December 17, 1987.
Judges — Affidavit of disqualification — Alleged error in sentencing not amenable to affidavit — Differences in sentences between judges is one of hazards of wrongdoing.
ON AFFIDAVIT OF DISQUALIFICATION.
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 Fairfield County.
A judge is presumed to follow applicable law in all respects and "[g]enerally, 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.