State v. Keith, 149 Ohio St. 3d 1219

Defendant Davonne Keith filed an affidavit under R.C. 2701.03 to disqualify Judge Kathleen Ann Sutula from resentencing after the appellate court vacated his sentences and remanded.
The Eighth District vacated Keith’s original sentences because the trial court failed to afford him allocution and remanded for resentencing.
At the original sentencing, Judge Sutula remarked that Keith’s “gang members” had left when his parents stepped out of the courtroom; the judge did not explain that comment in her response.
The judge also held up a Cleveland Magazine article about lives harmed by heroin and stated she was “sure” some individuals in the article were Keith’s clients, suggesting reliance on information outside the record.
Keith asserts the judge’s comments and failure to permit allocution demonstrate bias and warrant disqualification from resentencing.

Issue	Plaintiff's Argument (Keith)	Defendant's Argument (Judge Sutula)	Held
Whether judge’s comment that Keith’s “gang members just left” shows bias	Comment evidences hostility and prejudgment toward Keith	Judge says comment taken out of context; provided no plausible explanation	Grant — comment unexplained; creates appearance of impropriety
Whether citing a magazine article and asserting individuals were Keith’s clients shows reliance on extrajudicial information	Article reference indicates judge relied on extrajudicial sources and presumed connections to Keith	Judge uses article routinely to illustrate heroin harm; transcript does not justify assertion	Grant — remark suggested use of extrajudicial factor and prejudgment
Whether failure to afford allocution alone requires disqualification	Combined with hostile comments, it demonstrates improper procedure and bias	Failure to give allocution was error but not normally disqualifying absent misconduct	Grant — combined procedural omission and comments warrant disqualification
Whether a new judge should be assigned on remand	Continued participation would create appearance judge cannot fairly resentence	Judge volunteered to remain but did not adequately rebut appearance concerns	Grant — new judge ordered to avoid appearance of bias

Liteky v. United States, 510 U.S. 540 (judicial remarks based on extrajudicial sources can support bias challenge)
In re Disqualification of Floyd, 803 N.E.2d 816 (Ohio) (unchallenged sworn statements may create appearance of impropriety)
In re Disqualification of Winkler, 986 N.E.2d 996 (Ohio) (new judge required on remand when prior comments create reasonable doubt about impartiality)
In re Disqualification of Knece, 7 N.E.3d 1213 (Ohio) (adverse rulings plus words or conduct can call proceedings into question)
In re Disqualification of Hoover, 863 N.E.2d 634 (Ohio) (judge should be disqualified where comments reflect fixed anticipatory judgment)
State ex rel. Pratt v. Weygandt, 132 N.E.2d 191 (Ohio) (judge must hear with open state of mind; hostility or fixed judgment disqualifies)