State v. Hardesty (In re Forchione), 120 N.E.3d 855

Defense counsel Jonathan T. Sinn filed an affidavit under R.C. 2701.03 seeking to disqualify Judge Frank G. Forchione from a criminal case set for trial, alleging bias and improper ex parte communications and hostility.
Sinn claims the prosecutor sent case documents to the judge before defense counsel received them and that the judge participated in plea discussions and was personally hostile to Sinn.
Judge Forchione acknowledged receiving the indictment, police report, and another report before the first pretrial, said he expressed discomfort with the parties’ proposed plea and suggested a longer sentence, and denied bias while noting difficult behavior by Sinn.
The affidavit was filed on July 27, 2018, about ten days before trial; most complained-of events occurred at or before the January 2018 pretrial and at a February 2018 hearing.
The court reviewed waiver and the merits and concluded Sinn failed to timely and adequately substantiate claims of bias or prejudice.

Issue	Plaintiff's Argument (Sinn)	Defendant's Argument (Judge/State)	Held
Timeliness/waiver of disqualification	Affidavit filed raising judge's bias before trial — request should be entertained	Affidavit filed months after events; delay unjustified; waiver applies	Waiver: affidavit filed too late; objections to initial pretrial conduct waived
Ex parte communications	Prosecutor sent documents to judge before defense; this created improper ex parte contact and bias	Judge had a pretrial policy accepting materials; documents (indictment, police report) do not show bias; no sufficient showing of prejudice	Denied: receipt of basic prosecution documents days earlier insufficient to show disqualifying bias
Judicial hostility toward counsel	Judge is openly hostile to Sinn (angry on record at Feb hearing)	Judge reports counsel was challenging and disrespectful; no transcript or concrete proof provided	Denied: allegation unsubstantiated; presumption of impartiality stands
Judge participation in plea negotiations	Judge made a plea “offer” and warned it would be withdrawn, compromising impartiality	Judge merely expressed discomfort with parties’ proposed plea and suggested a different sentence; cautioned defendant about trial rights	Denied: participation limited to sentence length and record sparse; judge cautioned against active plea role but not disqualified

In re Disqualification of O'Grady, 77 Ohio St.3d 1240 (1996) (affidavit must be filed promptly; delay may cause waiver)
In re Disqualification of Corrigan, 91 Ohio St.3d 1210 (2000) (late affidavit may constitute waiver when underlying facts known earlier)
In re Disqualification of O'Neill, 100 Ohio St.3d 1232 (2002) (definition of bias or prejudice for disqualification)
State ex rel. Pratt v. Weygandt, 164 Ohio St. 463 (1956) (bias implies fixed anticipatory judgment, contrasted with open mind)
In re Disqualification of George, 100 Ohio St.3d 1241 (2003) (presumption judges follow law; appearance of bias must be compelling)
In re Disqualification of Sheward, 134 Ohio St.3d 1226 (2012) (improper ex parte communications can justify removal)
In re Disqualification of Baronzzi, 135 Ohio St.3d 1212 (2012) (unsupported allegations of bias insufficient to overcome presumption of impartiality)
State v. Byrd, 63 Ohio St.2d 288 (1980) (judge participation in plea negotiations strongly discouraged)
State v. Filchock, 116 Ohio App.3d 572 (11th Dist. 1996) (court proposing plea bargains is highly irregular)