Opinion
No. 96-AP-014
Decided February 8, 1996.
ON AFFIDAVIT OF DISQUALIFICATION in Putnam County Court of Common Pleas case No. 95-CR-65.
This affidavit of disqualification was filed by Konrad Kuczak, counsel for defendant, Jose Santos Ramirez, seeking the disqualification of Judge Randall L. Basinger from further proceedings in the above-captioned case.
Affiant claims Judge Basinger should be disqualified because an issue will be raised at trial regarding the validity of a warrant to search the defendant's residence that was authorized by Judge Basinger. Affiant claims the challenge to the validity of the warrant will cause Judge Basinger to review the basis on which he issued the warrant and, therefore, mandates his disqualification from this case.
I previously have held that a judge who presided at trial is not disqualified from ruling on a subsequent petition for post-conviction relief ( In re Disqualification of Spicer [Nov. 20, 1989], No. 89-AP-201, unreported), and that a judge who presided in a criminal trial is not precluded from considering the defendant's motion to vacate the sentence imposed ( In re Disqualification of Kilbane, 42 Ohio St.3d 602, 536 N.E.2d 1153). Here, the judge will be required to review the propriety of his authorization of the search warrant. To do so will require the presentation and consideration of evidence that was not presented prior to issuance of the warrant. There is no indication from the record that Judge Basinger will consider this evidence in any manner other than fairly and impartially and, without such an indication, I cannot conclude that Judge Basinger is disqualified from these proceedings.
Accordingly, the affidavit of disqualification is found not well taken and is denied.