State v. Campbell

[Cite as State v. Campbell, 2026-Ohio-2710.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HIGHLAND COUNTY STATE OF OHIO, : CASE NO. 25CA24 Plaintiff-Appellee, : v. : DECISION AND JUDGMENT ENTRY TIMOTHY B. CAMPBELL, : Defendant-Appellant. : ________________________________________________________________ APPEARANCES: Angela Miller, Jupiter, Florida, for appellant1. Anneka P. Collins, Highland County Prosecuting Attorney, and Adam J. King, Assistant Prosecuting Attorney, Hillsboro, Ohio, for appellee. ________________________________________________________________ CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:7-8-26 ABELE, J. {¶1} This is an appeal from a Highland County Common Pleas Court judgment of conviction and sentence. Timothy Campbell, defendant below and appellant herein, raises three assignments of error for review: FIRST ASSIGNMENT OF ERROR: “THE TRIAL COURT’S SENTENCE OF APPELLANT, WHICH INCLUDED BOTH THE MAXIMUM JAIL TERM AND THE MAXIMUM FINE, WAS AN ABUSE OF DISCRETION. R.C. 2929.22.” 1 Different counsel represented appellant during the trial court proceedings. Highland App. No. 25CA24 2 SECOND ASSIGNMENT OF ERROR: “THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A DISTRICT-WIDE EMPLOYMENT PROHIBITION AS A CONDITION OF STAY PENDING APPEAL. U.S. CONST. AMENDS. VIII, XIV; OHIO CONST. ART. I, §§ 9, 16; OHIO APP.R. 7.” THIRD ASSIGNMENT OF ERROR: “THE REPRESENTATION PROVIDED TO CAMPBELL FELL BELOW THE PREVAILING NORMS FOR COUNSEL AND AFFECTED THE OUTCOME OF HIS SENTENCING IN VIOLATION OF THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, §§ 2, 10, AND 16 OF THE OHIO CONSTITUTION.” {¶2} In May 2025, a Highland County Grand Jury returned an indictment that charged appellant with one count of felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony. Appellant entered a not guilty plea. {¶3} At appellant’s September 29, 2025 jury trial, Rhonda Matracia testified that she is employed at the local VFW and on February 14, 2025 observed appellant enter the VFW and order a drink at the bar. After she said hello, she lost him in the crowd until “there was a commotion . . . at the back end of the bar. The band stopped playing, and the lights came on.” Appellee played State’s Exhibit 1, the VFW surveillance video, for the jury. Matracia stated that when she got to the victim, she observed blood on him and he “was lying on the floor, his wife was hovering over him, he was completely unconscious.” Highland App. No. 25CA24 3 {¶4} VFW bartender Dorothy Leath worked the night of February 14, 2025. Leath said that as appellant entered the VFW, the victim (Shane Fligor) sat at a table in a corner with his wife. When appellant entered, he “came in and ordered a beer and mingled, and then he ended up over there in the corner, and [appellant] was pointing at [Fligor], I didn’t hear what he said.” Then, Leath testified, “I saw [appellant] hit [Fligor] two times.” Similarly, VFW employee Chuck Bender “saw [appellant] walk in, looked like him and [Fligor] was having a conversation and then [appellant] started swinging... at Fligor.” VFW employee Donita Palmer testified that on February 14, 2025, she was outside on a “smoke break” when appellant left. Palmer said, “Hey, Campbell, what is wrong?” And appellant “is like, well, I just beat the f*ck out of somebody.” {¶5} VFW patron Brandi Tait testified that on February 14, 2025 she observed appellant approach the victim, and “heard him say something to the effect of, I didn’t say I thought you were gay, Shane, so it made me take notice of what was going on.” When Tait looked back a moment later, “it literally looked like Shane’s head was bouncing off the wall like three or four times, and then Shane went to the ground, and he definitely looked out.” Tait explained that appellant hit the victim, he fell out of his chair to the floor, and “there was blood everywhere,” and it looked like the victim lost consciousness. Highland App. No. 25CA24 4 {¶6} VFW patron Angela Hurless observed the victim sitting behind her. Hurless noticed appellant enter the VFW, get a drink, and then he “ran toward [Fligor] and hit him.” After appellant “hit [Fligor] that one time,” Fligor “hit the floor,” and had “blood all over him.” Outside the VFW that evening, patron Bridget Davis testified that about a year before, she joined the victim and his wife and some friends at Furman’s, where appellant approached her and said, “he was sorry that I had a fagot for a friend.” {¶7} Greenfield Police Patrolman Quinton Smith testified that Shane Fligor entered the police station between 10:00 and 11:00 p.m. with “blood coming out of his ear, . . . an abrasion on his nose, [and] blood on his jacket . . . pants and shoes.” Fligor told Smith that appellant “struck him in the face multiple times, causing him to go unconscious. . . he couldn’t remember what happened after he got hit.” After Smith photographed Fligor’s injuries, he and another officer searched for appellant for about 30 minutes and eventually visited the VFW, where they spoke with managers and requested video footage. Smith testified that, after they called appellant and told him they had an arrest warrant, appellant drove to the station and turned himself in. {¶8} Emergency Department Physician Dr. Daren Barker testified that on February 14, 2025, Fligor arrived with “a Highland App. No. 25CA24 5 laceration to his right ear, it had some bleeding, he had an abrasion to his nose, some facial contusions, mostly to the nose as well.” A CT head scan revealed a nondisplaced fracture of the left tip of the nasal bone. In addition, the victim also suffered a cervical (neck) sprain and neck tenderness and told Barker that he had lost consciousness for less than a minute. Barker repaired the laceration to the right ear. Barker’s note said, “[Fligor] was knocked against the wall and was witnessed to be unconscious for less than thirty seconds.” Barker prescribed Toradol, a non-steroidal anti-inflammatory for pain, Cephalexin, an antibiotic, Robaxin, a muscle relaxer, and ibuprofen. {¶9} Victim Shane Fligor serves as a substitute teacher at McClain High School and an assistant instructor/mentor for the McClain Cadet Corps, “similar to an Army or Air Force Jr. ROTC program.” Fligor served 23 years on active duty, including three Iraq deployments and one to Bosnia, and retired in 2021. Fligor is married to his wife, Jennifer. {¶10} Fligor met appellant at McClain High School in 2023 or 2024, “where [appellant] was also working as a substitute teacher.” Fligor had a few interactions with appellant outside of the school, and the two did not speak to each other at the high school. Fligor explained: Highland App. No. 25CA24 6 The first time I had gone to see a band at Catch 22 there in Greenfield, I was back up against the back wall. Tim [appellant] came up to me he said, ‘I know you, you work at the school,’ and I said ‘yes.’ And he said, ‘you need to f*cking lighten up.’ . . . nobody at the school likes you, the students don’t respect you and they make fun of the way you dress. {¶11} At the second interaction, “my wife and I had just got done with a cadet corps event, we decided to go to the VFW, I was in my military uniform. Appellant approached and said, “That is f*cking gay.” Appellant and his wife left. For the third interaction, Fligor and his wife joined friends at Furman’s restaurant when appellant approached their table, and “asked the ladies that were with us, my wife and two other ladies what they were doing with me. My wife said, ‘I’m his wife,’ and he said, ‘I always thought he was a f*cking fagot.” Fligor and the group left. {¶12} Fligor’s fourth interaction with appellant occurred on February 14, 2025, when Fligor and his wife stopped at the VFW “for a quick Valentine’s date.” They ordered drinks and sat at a table in the back of the bar. When his wife went to the restroom: I saw Tim Campbell walk by and then a brief moment later I heard him yelling my name. Without leaving the chair I turned back around towards him and he said, ‘I want to talk to you about the time I called you a fagot.’ I said, ‘Tim, now is not the time and the place to discuss this. If you want to talk about it later we can definitely do that. But, please, just go.’ He leaned in close to me and said, ‘if I slam your head through this f*cking wall I’ll bet you will f*cking talk to me then.’ I said, Highland App. No. 25CA24 7 ‘Tim, no.’ That is when Tim hit me and I lost consciousness. . . . The next thing I remember is I heard my wife, I couldn’t see anything, everything was still black, but I heard my wife say, ‘Shane, wake up, Shane, wake up, Shane, please wake up.’ I began to hear other voices saying ‘come on, Shane, what is going on, what happened, what is going on.’ When I was able to open my eyes I was sitting on the floor, I could taste blood in my mouth. I couldn’t see really who was around me, I couldn’t even make out my wife. I sat there for, I don’t know exactly how long. And finally I said, ‘Please get me up, get me up, get me out of this area,’ because we were still in the bar area. {¶13} After Fligor washed blood off his face, his wife drove him to the police station and the hospital, where he received five stitches in his right ear and learned he had a broken nose and a sprained neck. A few days later, Fligor had “a lot of headaches, trouble seeing, very nauseated, was sleeping a lot,” so he visited the VA Medical Center, which diagnosed him with a concussion. Fligor explained, Still to this day, I have a lot of ringing in my right ear, my neck is still stiff, I mean it’s a lot better than it actually was, I’m having trouble sleeping, incredibly anxious, there are times that I’ll be in the classroom or I’ll been having a communication with somebody and I will completely forget what we were talking about what I was saying at that time. And somebody will remind me what we were talking about and it’s like I’m completely lost. It will take me several minutes to get everything back. {¶14} Fligor testified that he attended the annual Cadet Corp Ball, the next day. Because Fligor is a Cadet Corp leader, he explained that he needed “to be there for them.” At the Highland App. No. 25CA24 8 dance, Fligor “was in excruciating pain, I had a severe headache, my nose hurt, my ear hurt.” Fligor said that the music and bright lights bothered him, and he spent the majority of the event “in the hallway, in the bathroom, throwing up, or out in my car until I could get the headache to subside and I could come back in the room.” Fligor and his wife left early. Fligor also testified that he and his wife attended a basketball game earlier in the day, but he did not remember attending it. On cross-examination, Fligor acknowledged that he had been diagnosed with tinnitus previously and already took medication for anxiety related to his post-traumatic stress disorder (PTSD) from previous deployments. {¶15} Jennifer Fligor, the victim’s wife, testified that she is self-employed and previously served as a combat medic in the military. Ms. Fligor testified that she only knew appellant “by our previous encounters. . . we have had several encounters with him variously over the years.” For example, before the assault on February 14, Ms. Fligor explained that they joined friends for dinner at a restaurant, and had just been seated, when appellant approached them, looked at Fligor and said, “I always pinned you for a fagot.” The group left the restaurant. {¶16} On February 14, Ms. Fligor stated that, although she did not notice appellant at the VFW, later, when she excused herself to visit the ladies’ room, as she washed her hands, she Highland App. No. 25CA24 9 heard “people starting to yell, ‘Shane is hurt, Shane is hurt.’” When Ms. Fligor arrived, “he was completely slumped up against the wall, down, his head was crunched up against his chest, he was unconscious, and there was blood everywhere. . . his hands were inverted, almost like a seizure activity that you see. His eyes were rolled back.” Fligor confirmed that her husband was breathing, tried to get him up so she could clear his airway, and yelled for someone to call an ambulance. After a few seconds, Fligor regained consciousness and asked to be removed from that area, so Ms. Fligor moved him to a back room to clean him and ensure he was fully conscious. After that, the couple drove to the police station, then to the hospital. {¶17} Ms. Fligor testified that she is a photographer and needed to work a basketball game the following day, but did not want to leave her husband home alone because he showed signs of concussion, such as headaches and nausea. At the game, Fligor sat in the corner with Ms. Fligor’s camera gear and wore earplugs. Later that evening, the couple attended the Cadet Corps Ball and “[Fligor] was very much not there.” Ms. Fligor drove because she did not trust him to drive and Fligor slept most of the way. After the music started at the event, Fligor excused himself and stayed away from the loud music and bright lights “because he kept complaining that everything was making Highland App. No. 25CA24 10 his stomach nauseous and the bright lights were hurting his head.” They left early. {¶18} Greenfield McClain High School Military Science Instructor John Wilson served in the Air Force for 20 years. Wilson observed Shane Fligor at the military ball on February 15. When the music started and the lights flickered, Wilson noticed “that [Fligor] . . . winc[ed], his eyes bugged a little bit. . . and on several occasions he departed that area and went out into the lobby area.” {¶19} At the close of appellee’s case, the trial court overruled appellant’s Crim.R. 29 motion for judgment of acquittal. {¶20} Appellant’s brother-in-law, Aaron Penn, testified that he observed Fligor at the basketball game on February 15 and did not notice anything unusual about him other than a scab on his nose, even though Penn knew of the beating the night before. {¶21} Appellant testified that he had only seen Shane Fligor twice outside of school. At Furmans, Fligor and his fiancé were sitting at the bar, “and I was looking around like I always do because of PTSD and working as a correction officer, I always know what my surroundings are.” Appellant stated that Fligor, “yelled across and said, ‘that is my wife you’re looking at.’ And I was like, and I said, and I said, ‘this is my fiancé,’ and I said, ‘I’m very sorry, but I thought you were gay. I did say Highland App. No. 25CA24 11 that.” Appellant explained that Fligor “stood up, took a pretty good defensive posture for a few minutes and I just turned around.” {¶22} On February 14, appellant arrived at the VFW about 45 minutes before he punched Fligor. “I had noticed Shane, and I walked up to Shane and I said, ‘hey, Shane, I would like to apologize for the words we had.’ ” Shane said, “F off, not here.” Appellant said, “You’re going to say something to the wrong person, like you're doing in one of these places late at night in a bar like this, and they are probably going to put your head through that wall.” Fligor said, “F’ off.” When asked on cross-examination, “you don’t like to be told no, do you?” appellant replied, “No.” {¶23} After hearing the evidence, the jury found appellant not guilty of R.C. 2903.11(A)(1) felonious assault, but guilty of first-degree misdemeanor assault in violation of R.C. 2903.13(A). {¶24} Subsequently, the trial court proceeded to sentencing and the victim gave a statement: I did nothing to [provoke] Mr. Campbell. When this situation happened my kids let me know that he was a teacher at their school and has taught them. I fear for my safety, I fear for my children’s safety. I have been deployed four times and my wife has never had to deal with me getting hurt. Until I came home and was attacked by Mr. Campbell. I ask that he please be Highland App. No. 25CA24 12 incarcerated and that we do everything we can to make sure that Mr. Campbell never approaches me, my family, my parents, any of our family because I do fear retaliation. In addition, Mrs. Fligor gave a victim impact statement: I just ask that, like Shane said, that you take into consideration that as a spouse to have to come around the corner and see their spouse on the floor like that. I have been deployed to Iraq, and I’m telling you that I was never so scared as I was that night seeing my husband bleeding on the floor for no reason, hearing somebody scream through a place where we call home, the VFW, that is our safety net, as veterans. And I never want anybody else to have to hear that again. In allocution, appellant provided the following: I just want to apologize to Mr. Fligor, and to everybody else, the Jury did find me guilty, my peers did, and I apologize and I am sorry everything happened. And I hope things go better for the both of us and everyone, and thank everyone for being here. The trial court then stated: Well, in my opinion, this verdict was the result of the law. Next to the definition of recklessly the definition of serious physical harm is the most poorly worded statute in the Criminal Code. And the way I look at it, would I be willing to trade places and accept the harm that was caused in this case. And I think the answer to that I, no. But, unfortunately, the way the law is drafted the jury found that it did not meet that standard. And so, you know, that is the reason we have this verdict that we do. I will say this, Mr. Campbell, I think that you are a liar, I think you’re a bully, I think you have got a big mouth, there is no reason for you to go after Mr. Fligor at all. So what if other people in the school didn’t like him, I don’t know if that is true or not, I don’t believe you. But even if were, so what, why is that your business, why do you go out and confront him at a bar. You know, if you had to use self-defense, if you Highland App. No. 25CA24 13 are worried about yourself and getting hurt then you need to start shutting your big mouth and keep it to yourself. But, no, you want to go out and show everybody what a tough guy you are. Which you’re just a bully. Mr. Fligor walked away, there is no evidence at all in this case that you acted in self-defense and everybody in this case knows that. So, the Court feels in order to send a message and make sure hopefully that the Department of Education revoked your credentials as a substitute teacher, because, you know, if there is a worse example of somebody to the youth of a school I don’t know who it could be, maybe a sex offender. But other than that what you have done is a disgrace. And to just walk in there and assault this man in a VFW too. And other organizations. You know, veterans are [supposed] to be there for an exchange of fellowship and camaraderie and support of each other and not to go in and attack each other. Or in this case you attacked him. And totally unprovoked. And I don’t believe your story, neither did the jury, for a minute. They found you guilty because of what they believed the law required and felt that the State did not prove that. {¶25} At that juncture the trial court sentenced appellant to (1) serve a 180-day jail sentence, (2) pay a $1,000 fine, and (3) pay costs. On September 30, 2025, appellant filed a motion to stay his sentence pending appeal. After an October 6, 2025 hearing, the trial court granted the motion upon the following conditions: (1) defendant post a $10,000 bond, (2) all previous conditions as stated in the arraignment entry remain in effect, (3) defendant is not permitted to substitute teach at Greenfield School District or be on premises owned by them, (4) defendant shall not have any contact directly or indirectly with the victim or any witnesses who testified at trial, and (5) if the court of appeals affirms the conviction, defendant shall report Highland App. No. 25CA24 14 to the Highland County Sheriff’s Office within two business days to complete his sentence. This appeal followed. I. {¶26} In his first assignment of error, appellant asserts that the trial court’s sentence, which included both the maximum jail time and the maximum fine, constitutes an abuse of discretion. Appellee, however, contends that the trial court considered the proper statutory framework and the sentence is within the authorized range. {¶27} “ ‘We review a misdemeanor sentence for an abuse of discretion.’ ” State v. Williams, 2016-Ohio-733, ¶ 17 (4th Dist.), quoting State v. Marcum, 2013-Ohio-2447, ¶ 22 (4th Dist.). “An abuse of discretion consists of more than an error of judgment; it connotes an attitude on the part of the trial court that is unreasonable, unconscionable, or arbitrary.” State v. Wyatt, 2002-Ohio-4479, ¶ 20 (4th Dist.), citing State v. Lessin, 67 Ohio St.3d 487 (1993), citing Rock v. Cabral, 67 Ohio St.3d 108 (1993). “An abuse of discretion includes a situation in which a trial court did not engage in a ‘sound reasoning process’; this review is deferential and does not permit an appellate court to simply substitute its judgment for that of the trial court.” State v. Felts, 2016-Ohio-2755, ¶ 29 (4th Dist.), quoting State v. Darmond, 2013-Ohio-966, ¶ 34. Highland App. No. 25CA24 15 {¶28} Pursuant to R.C. 2929.21 and 2929.22, trial courts possess broad discretion to determine the appropriate sentence for misdemeanor cases. State v. Kinsworthy, 2014-Ohio-2238, ¶ 30 (12th Dist.). In doing so, a trial court must be guided by the purposes of misdemeanor sentencing, which are “to protect the public from future crime by the offender and others and to punish the offender.” R.C. 2929.21(A). The court must also consider the factors that are relevant to achieving the purposes and principles of misdemeanor sentencing. R.C. 2929.22(B)(3). “To achieve those purposes, the sentencing court [must] consider the impact of the offense upon the victim and the need for changing the offender's behavior, rehabilitating the offender, and making restitution to the victim of the offense, the public, or the victim and the public.” R.C. 2929.21(A). {¶29} In determining the appropriate sentence for a misdemeanor, a trial court must consider seven factors listed under R.C. 2929.22(B)(1): (a) The nature and circumstances of the offense or offenses; (b) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender has a history of persistent criminal activity and that the offender's character and condition reveal a substantial risk that the offender will commit another offense; (c) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender's history, character, and condition reveal a substantial risk that the offender will be a danger to others and Highland App. No. 25CA24 16 that the offender's conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences; (d) Whether the victim's youth, age, disability, or other factor made the victim particularly vulnerable to the offense or made the impact of the offense more serious; (e) Whether the offender is likely to commit future crimes in general, in addition to the circumstances described in divisions (B)(1)(b) and (c) of this section; (f) Whether the offender has an emotional, mental, or physical condition that is traceable to the offender's service in the armed forces of the United States and that was a contributing factor in the offender's commission of the offense or offenses; (g) The offender's military service record. {¶30} A trial court may also consider “any other factors that are relevant to achieving the purposes and principles of sentencing set forth in [R.C. 2929.21.]” R.C. 2929.22(B)(2). In addition, the court must consider “any relevant oral or written statement made by the victim, the defendant, the defense attorney, or the prosecuting authority regarding sentencing for a misdemeanor.” R.C. 2929.22(D)(1). {¶31} “Although it is preferable that a trial court affirmatively state on the record that it considered the criteria set forth in R.C. 2929.21 and R.C. 2929.22, the statute does not mandate that the record state that the trial court considered the applicable statutory factors.” Kinsworthy at ¶ 30; State v. McClurg, 2020-Ohio-1144, ¶ 7 (2d Dist.). Moreover, Highland App. No. 25CA24 17 “a trial court is presumed to have considered the statutory factors when the sentence is ‘within the statutory limits and there is no affirmative showing that the trial court failed to do so.’ ” Id., quoting State v. Collins, 2005-Ohio-4755, ¶ 12 (3d Dist.); McClurg, id. “Unless a mandatory jail term or specific sanction is required to be imposed, a trial court has discretion to determine the most effective way to achieve the purposes and principles of misdemeanor sentencing, which may include any sanction or combination of sanctions authorized.” State v. Horr, 2022-Ohio-3160, ¶ 5 (2d Dist.), citing R.C. 2929.22(A). {¶32} Relevant to the case at bar, R.C. 2929.22(C) provides that the maximum jail term for a misdemeanor may only be imposed “upon offenders who commit the worst forms of the offense” or “upon offenders whose conduct and response to prior sanctions for prior offenses demonstrate that the imposition of the longest jail term is necessary to deter the offender from committing future crime.” R.C. 2929.22(C). In the case sub judice, appellant claims that the trial court’s decision to impose the maximum jail term for his offense does not comply with the requirements of R.C. 2929.22(C) because: (1) the trial court did not order a Pre-Sentence Investigation (PSI), and (2) the trial court relied on his personal animus towards appellant and his identification with the victim in sentencing appellant. Highland App. No. 25CA24 18 {¶33} Because the trial court did not order a PSI, the only basis on which the trial court could have imposed a maximum jail term is by concluding that appellant committed one of the worst forms of the offense of assault. R.C. 2929.22(C). “The phrase ‘worst forms of the offense’ is not defined by statute, and is left primarily to the trial court’s discretion to determine its meaning.” State v. Huff, 2000 WL 1741901 (7th Dist. Nov. 20, 2000), citing State v. Mushrush, 135 Ohio App.3d 99 (1st Dist.1999). Thus, “[t]he General Assembly must have intended the phrase ‘worst forms of the offense’ to include many conceivable forms, because the plural ‘forms’ contemplates ‘not just a single form of any offense that is the worst, but that more than one situation may be one of the worst forms of the offense.’ ” Mushrush at 110, quoting State v. Patterson, 1998 WL 720733, * 4 (4th Dist.); State v. Scott, 2023-Ohio-476, ¶ 13 (2d Dist.). {¶34} Appellant asserts that the trial judge relied on his “personal animus” towards appellant and his “identification with the victim in the case” in sentencing appellant, and that the record reflects that the trial judge became irritated and frustrated by the fact that the jury found appellant guilty of the lesser-included offense of assault and not felonious assault. Appellee, on the other hand, argues that R.C. 2929.22(B)(1) expressly authorizes a trial court to consider Highland App. No. 25CA24 19 whether the offender’s conduct caused or threatened physical harm and whether the offender presents a substantial risk of future offenses. Appellee contends that nothing required the trial court to ignore the seriousness of the conduct simply because the jury convicted on a lesser-included offense. Moreover, appellee submits that judges may comment on the seriousness of an offense, the defendant’s conduct, and the court’s assessment of responsibility and accountability. {¶35} Generally, when a defendant wishes to raise a challenge to a trial judge's objectivity, he must utilize the procedure for filing an affidavit of disqualification set forth in R.C. 2701.03. State v. Casada, 2016-Ohio-2633, ¶ 25 (8th Dist.), citing State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956), paragraph three of the syllabus. A court of appeals has “no authority to determine a claim that a trial judge is biased or prejudiced against a defendant and no authority to void a trial court's judgment based on a claim that the trial judge is biased or prejudiced.” State v. Williamson, 2016-Ohio-7053, ¶ 27 (8th Dist.). However, in State v. Power, 2013-Ohio-4254 (7th Dist.), the Seventh District explained that an appellate court may review biased comments at sentencing for due process violations. Id. at ¶ 22, citing State v. Arnett, 88 Ohio St.3d 208, 218 (2000). Highland App. No. 25CA24 20 {¶36} Ohio law generally permits trial judges to make critical comments about a defendant’s conduct at sentencing. See State v. Thomas, 36 Ohio St.2d 68, 71 (1973). Judicial bias has been described 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 the facts. State v. Dean, 2010–Ohio–5070, ¶ 48, quoting Pratt, supra, 164 Ohio St. 463, paragraph four of the syllabus. “If the trial judge forms an opinion based on facts introduced or events occurring during the course of the current or prior proceedings, this does not rise to the level of judicial bias, ‘unless [the opinions] display a deep-seated favoritism or antagonism that would make fair judgment impossible.’ ” State v. Hough, 2013– Ohio–1543, ¶ 11 (8th Dist.), citing Dean at ¶ 49, quoting Liteky v. United States, 510 U.S. 540, 555 (1994). {¶37} The law presumes that a judge is unbiased and unprejudiced in the matters over which he or she presides, and the appearance of bias or prejudice must be compelling in order to overcome the presumption. Power, supra, at ¶ 23, citing In re Disqualification of Olivito, 74 Ohio St.3d 1261, 1262 (1994). In Power, the defendant argued that the trial court demonstrated bias against him during sentencing due to comments the court Highland App. No. 25CA24 21 made to the victim's mother (calling her a bad mother because she failed to report the abuse to her daughter sooner), and telling the defendant, “What you did here is despicable. It's beyond understanding.” Power at ¶ 13. The Seventh District concluded that the trial court’s comments “do not come near the level of a due process violation or otherwise constitute reversible sentencing error.” Id. The court explained: [O]pinions 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 deepseated antagonism that would make fair judgment impossible. State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 49. Hence, critical, disapproving, or even hostile statements ordinarily do not support a bias or partiality challenge. Id. It is not reversible error for a sentencing judge, in explaining his sentence, to make critical statements about a defendant's conduct based upon the facts of the case presented to the court. See, e.g., State v. Cemino, 2d Dist. No. 24442, 2011-Ohio-5690 [2011 WL 5326563], ¶ 8, 18–20 (scolding defendant and characterizing what he did as nasty, despicable, disgusting, and awful was not indicative of bias); State v. Coomer, 12th Dist. Nos. CA2009–09–016, CA2009–09–017, 2010-Ohio-3474 [2010 WL 2891748], ¶ 18 (trial court's statement that the defendant was a psychopath may have been ill-advised, but it was not reversible). Power at ¶ 26-27. {¶38} Similarly, in State v. Filous, 2016-Ohio-8312 (8th Dist.), the trial court mocked the defendant’s efforts to rehabilitate himself, discredited his sobriety and his obtainment of both a driver's license and a job, called his mother a “liar,” and mocked the defendant’s “expression of Highland App. No. 25CA24 22 remorse.” The Eighth District concluded that the exchange did not evidence judicial bias, and held that “[i]t is not reversible error for a sentencing judge, in explaining his sentence, to make critical statements about a defendant's conduct based upon the facts of the case presented to the court.” Id. at ¶ 16, citing Power at ¶ 27. Further, the court found no error in the trial court's challenge of the defendant's sincerity or credibility when the defendant made contradictory statements. Finally, although the court found the trial court’s characterization of Filous's mother unduly harsh, it did not conclude that the criticism evidenced judicial bias. Id., see State v. Clay, 2008–Ohio–1415, ¶ 22–23 (8th Dist.) (sentencing court's criticism of defendant's mother was not reversible). {¶39} In State v. Corchado, 2017-Ohio-4390 (7th Dist.), after the prosecutor made his rebuttal closing argument and characterized Corchado as “simply not credible,” the trial court stated that Corchado's testimony was “totally incredible, absolutely incredible. Shame on you. I have absolutely no difficulty at all in finding that you are guilty of assault as charged.” Id. at ¶ 16. During sentencing, in addition to other “intemperate comments,” the trial court expressed its disgust for Corchado's “immature” and “ridiculous” conduct and “shamed Corchado as a mother for acting in such a manner.” Id. at ¶ 17. The court explained: “These comments, and others made by the Highland App. No. 25CA24 23 trial court, are akin to those in Power, and were at times ill- advised and inappropriate. Nonetheless, the trial court's statements do not rise to the level of a due process violation or reversible sentencing error.” Id. {¶40} Appellant cites State v. Yeban, 2024-Ohio-2545 (1st Dist.) in support. Yeban testified at his trial for operating a motor vehicle while under the influence of alcohol and other traffic violations. Prior to sentencing, Yeban informed the trial judge that he would bring a lawsuit under the Uniform Commercial Code (UCC) and common law against the court and stated that he did not recognize the court’s legitimacy. Id. at ¶ 20. When the trial court sentenced Yeban to the maximum jail term of 180 days, the First District reversed, holding that the trial court focused on two factors unrelated to the offense: Yeban’s perceived lies to the jury and his views on sovereign citizenship. The court held that, “[o]n a silent record, reviewing courts often presume that trial courts considered the proper statutory criteria for a misdemeanor sentence.” Id. at ¶ 70. However, the court held that this presumption, “is destroyed when the trial court introduces an improper factor into the maximum sentencing determination.” Id., citing State v. Brooks, 2006-Ohio-4610, ¶ 26 (7th Dist.)(trial court indicated at sentencing that it would impose maximum jail term “based on its assessment that the defendant was lying in court.” Highland App. No. 25CA24 24 This constituted abuse of discretion because trial court's perception as to defendant's truthfulness fell outside the R.C. 2929.22(C) criteria for maximum sentences.) Id. at ¶ 25-26. {¶41} In Yeban, the First District concluded that the trial court’s explanation made it clear that the court contemplated community control as the appropriate punishment for Yeban's conduct, but elected instead to sentence him to 180 days in jail, not because it determined that Yeban committed the worst form of OVI or because Yeban's response to prior criminal punishments made him likely to commit another crime, but because the court impermissibly weighed Yeban's perceived lying and Yeban's proclamation that he was a sovereign citizen rather than the criteria set forth in R.C. 2929.22(C). Id. at ¶ 72; see Brooks at ¶ 25-26. {¶42} We do not agree with appellant’s argument concerning the application of the First District’s analysis to the case at bar. Although here, the trial court moved forward with sentencing without the benefit of a PSI, the trial court’s comments indicate both skepticism at appellant’s credibility as well as concern over the assault itself and the three prior incidents in which appellant approached the victim and harassed him, as well as the physical harm appellant caused in the final incident. As appellee notes, appellant’s argument improperly conflates judicial candor with judicial bias. See also Dean, Highland App. No. 25CA24 25 2015-Ohio-4347, ¶ 225-227 (trial court’s comments, stating th