Opinion
No. 20-AP-011
02-21-2020
IN RE DISQUALIFICATION OF LUCCI. The State of Ohio v. Krug.
{¶ 1} Kimberly Kendall Corral, counsel for the defendant, has filed an affidavit pursuant to R.C. 2701.03 seeking to disqualify Judge Eugene A. Lucci from presiding over any further proceedings in the above-referenced case, which is now pending on the defendant's motion to withdraw his 1993 guilty plea to one count of felonious assault.
{¶ 2} Ms. Corral claims that during a 2008 sentencing hearing in a separate case, Judge Lucci stated that the defendant's 1993 felonious-assault offense had involved "pistol-whipping a cop." According to Ms. Corral, the judge's comment was false and not based on any information in the record. Because of the judge's comment, Ms. Corral believes that an objective observer would have serious doubts about Judge Lucci's impartiality in any further proceedings involving the defendant.
{¶ 3} Judge Lucci filed a response to the affidavit and denies that his comment is evidence of bias against the defendant. Judge Lucci acknowledges that while sentencing the defendant in the separate 2008 case, he described the defendant's 1993 felonious-assault conviction as involving "pistol-whipping a cop." According to Judge Lucci, he based the 2008 comment on a description of the defendant's 1993 conviction in a presentence-investigation report, and he made the comment in response to defense counsel's argument that the defendant had no prior offenses involving a gun. To support his position, Judge Lucci submitted a copy of the 2008 sentencing transcript and the presentence-investigation report.
{¶ 4} A judge could be disqualified from resentencing a defendant or deciding postconviction motions if the judge relied on extrajudicial information to support the initial sentence and made other undignified comments during sentencing. See e.g. , In re Disqualification of Sutula , 149 Ohio St.3d 1219, 2016-Ohio-8599, 74 N.E.3d 449 (disqualifying a judge from resentencing a defendant based on the judge's comments and conduct at the initial sentencing, including her apparent reliance on extrajudicial sources to justify the sentence); In re Disqualification of Winkler , 135 Ohio St.3d 1271, 2013-Ohio-890, 986 N.E.2d 996 (disqualifying a judge from resentencing a defendant because, among other reasons, the judge's descriptions of the defendant and other comments at the initial sentencing might have caused an objective observer to question whether the judge could fairly weigh any arguments that the defendant might offer on resentencing).
{¶ 5} According to Judge Lucci, his 2008 description of the defendant's 1993 offense was based on information included in a presentence-investigation report. If the defendant believed that Judge Lucci had misread the report or improperly relied on it, the defendant may have had other remedies to raise those allegations. Ms. Corral, however, has not established that Judge Lucci's isolated 2008 comment warrants his removal for bias. "A judge is presumed to follow the law and not to be biased, and the appearance of bias or prejudice must be compelling to overcome these presumptions." In re Disqualification of George , 100 Ohio St.3d 1241, 2003-Ohio-5489, 798 N.E.2d 23, ¶ 5. Based on this record, Judge Lucci's 2008 comment is insufficient to overcome the presumption that he will fairly and impartially decide the defendant's pending motion to withdraw his 1993 guilty plea. See In re Disqualification of Zmuda , 149 Ohio St.3d 1241, 2017-Ohio-317, 75 N.E.3d 1255.
{¶ 6} The affidavit of disqualification is denied. The case may proceed before Judge Lucci. In addition, it is ordered that the clerk of this court seal from the public the presentence-investigation report submitted with Judge Lucci's response to the affidavit of disqualification. See Sup.R. 45(E) and R.C. 2951.03.