State v. Cook
2014 Ohio 3165
Ohio Ct. App.2014Background
- In 2007 Jerry H. Cook was indicted for aggravated burglary and related misdemeanors; he pled guilty in 2008 to burglary (fourth-degree) and assault with other counts dismissed. The court imposed three years of community control for burglary and suspended six months on the assault.
- County Prosecutor Nick Selvaggio appeared at multiple early proceedings and, in 2010, personally represented the State at a community-control revocation hearing where the court continued Cook on community control with added conditions.
- Selvaggio was later elected a Common Pleas judge effective January 1, 2013. In April–May 2013 Cook was accused of violating community control (failure to keep probation informed of residence and a positive marijuana test).
- Judge Selvaggio presided over the May 9, 2013 revocation hearing; Cook did not object to his presiding. The court revoked community control and sentenced Cook to an aggregate 18 months in prison.
- On appeal Cook argued (1) the judge should have recused under the Ohio Code of Judicial Conduct because the judge had previously prosecuted the matter, and (2) he received ineffective assistance of counsel (counsel failed to seek recusal and failed to request a competency/NGRI evaluation).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Judge Selvaggio should have recused under the Code of Judicial Conduct | Cook: judge’s impartiality reasonably could be questioned because Selvaggio personally prosecuted earlier proceedings | State: no timely disqualification filed under R.C. 2701.03; Cook waived objection by not seeking disqualification and by participating without objection | Waived — defendant failed to use exclusive R.C. 2701.03 procedure and did not timely object; assignment overruled |
| Whether Cook received ineffective assistance of counsel | Cook: defense counsel was deficient for not moving to disqualify the judge and for not pursuing competency or NGRI defenses | State: record shows no prejudice from judge’s participation; evidence supported revocation; no record support for incompetence or NGRI | Overruled — counsel’s performance did not create reasonable probability of a different outcome; no record support for incompetence/NGRI |
Key Cases Cited
- Beer v. Griffith, 54 Ohio St.2d 440 (procedural route for judicial disqualification and supervisory role of Supreme Court)
- In re Disqualification of Pepple, 47 Ohio St.3d 606 (timely filing of affidavit of disqualification required; delay may constitute waiver)
- Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance of counsel)
- State v. Bradley, 42 Ohio St.3d 136 (adopting Strickland standard in Ohio)
- State v. Cook, 65 Ohio St.3d 516 (deference to counsel’s strategy; hindsight not permitted when evaluating performance)