The opinion
[Cite as Hillman v. Larrison, 2018-Ohio-184.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Robert L. Hillman, :
Plaintiff-Appellant, :
No. 17AP-160
v. : (C.P.C. No. 15CV-2664)
David Larrison, : (ACCELERATED CALENDAR)
Defendant-Appellee. :
D E C I S I O N
Rendered on January 18, 2018
On brief: Robert L. Hillman, pro se.
On brief: Richard C. Pfeiffer, Jr., City Attorney, and
Timothy J. Mangan, for appellee.
APPEAL from the Franklin County Court of Common Pleas
HORTON, J.
{¶ 1} Plaintiff-appellant, Robert L. Hillman, appeals the decision of the Franklin
County Court of Common Pleas finding that his accusation by affidavit filed under R.C.
2935.09 was not meritorious, referring the matter to the prosecuting attorney, and closing
the case. For the reasons set forth below, we reverse.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} Hillman initiated this proceeding on March 27, 2015, by filing an accusation
by affidavit under R.C. 2935.09. He alleged that defendant-appellee, David Larrison, a
city of Columbus police officer, had committed perjury under R.C. 2921.11 by making false
statements when testifying during Hillman's criminal trial. The trial court dismissed the
case on July 15, 2015, and Hillman appealed.
No. 17AP-160 2
{¶ 3} This court reversed and remanded on the grounds that the trial court had
"summarily dismissed" the matter without applying R.C. 2935.10, which " 'affords the
reviewing official only two options: 1) issue a warrant or 2) refer the matter to the
prosecutor for investigation if there is a belief that the affidavit lacks a meritorious claim,
i.e. probable cause, or was not made in good faith.' " Hillman v. Larrison, 10th Dist. No.
15AP-730, 2016-Ohio-666 ("Hillman I"), ¶ 14, quoting State ex rel. Brown v. Jeffries, 4th
Dist. No. 11CA3275, 2012-Ohio-1522, ¶ 9. Accordingly, we reversed and remanded with
instructions to the trial court to follow the procedures set forth in the statute.
{¶ 4} On remand, the trial court dismissed the case, but did so on the grounds
that the affidavit was invalid because it lacked a notary stamp or seal. (Apr. 25, 2016
Decision, Entry & Order.) Hillman appealed the trial court's decision.
{¶ 5} Once again, we reversed. Because our previous decision had "considered
Hillman's affidavit to be facially valid," we held that the law of the case doctrine prevented
the trial court from revisiting this previously settled issue and dismissing the case without
complying with the mandate to apply the procedure set forth under R.C. 2935.10.
Hillman v. Larrison, 10th Dist. No. 16AP-374, 2016-Ohio-7971 ("Hillman II"), ¶ 6-7.
{¶ 6} On remand, the trial court examined Hillman's affidavit and concluded that
it was not meritorious. Accordingly, the trial court referred the matter to the county
prosecutor "for investigation," overruled a number of pending motions filed by Hillman,
and ordered the case closed. Id. at ¶ 3.
{¶ 7} Hillman has appealed, and asserts the following assignments of error:
[I.] APPELLANT SUBMITS THAT THE TRIAL COURT
DENIED HIM DUE PROCESS AND EQUAL PROTECTION
OF THE LAW UNDER THE 1ST, 5TH, AND 14TH
AMENDMENTS TO THE UNITED STATES CONSTITUTION
WHEN IT DELIBERATELY IGNORED THE APPELLANT'S
EVIDENCE IN SUPPORT OF HIS CLAIMS, AS SAID
EVIDENCE THAT THE COURT CLAIMED APPELLANT
(DID NOT SUBMIT) WAS IN FACT A MATTER OF
RECORDS, MAKING THE COURTS DECISION NOT ONLY
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
BUT, A DENIAL OF MEANINGFUL ACCESS TO THE
COURTS, OR APPELLATE REVIEW.
[II.] APPELLANTS SUBMITS THAT THE TRIAL COURT
DENIED HIM DUE PROCESS AND EQUAL PROTECTION
No. 17AP-160 3
OF THE LAW UNDER THE 1ST, 5TH AND 14TH
AMENDMENTS TO THE UNITED STATES
CONSTITUTIONS WHERE THE TRIAL COURT JUDGE
WAS PARTIAL AND BIAS.
(Sic. passim.)
II. STANDARD OF REVIEW
{¶ 8} This court applies an abuse of discretion standard to "a judge's decision not
to issue a warrant based on an accusation by affidavit filed pursuant to R.C. 2935.09 and
2935.10." Hillman v. O'Shaughnessy, 10th Dist. No. 16AP-571, 2017-Ohio-489, ¶ 7, citing
In re Slayman, 5th Dist. No. 08CA70, 2008-Ohio-6713, ¶ 19.
III. FIRST ASSIGNMENT OF ERROR
{¶ 9} R.C. 2935.09(D) provides:
A private citizen having knowledge of the facts who seeks to
cause an arrest or prosecution under this section may file an
affidavit charging the offense committed with a reviewing
official for the purpose of review to determine if a complaint
should be filed by the prosecuting attorney or attorney
charged by law with the prosecution of offenses in the court or
before the magistrate.
{¶ 10} R.C. 2935.10 sets forth the procedure for evaluating a private citizen's
affidavit filed under R.C. 2935.09. State ex rel. Boylen v. Harmon, 107 Ohio St.3d 370,
2006-Ohio-7, ¶ 6. "Under R.C. 2935.10, the trial court judge has 'only two options: 1)
issue a warrant or 2) refer the matter to the prosecutor for investigation if there is a belief
that the affidavit lacks a meritorious claim, i.e. probable cause, or was not made in good
faith.' " Hillman II at ¶ 7, quoting State ex rel. Brown at ¶ 9.
{¶ 11} Here, the trial court concluded that Hillman's affidavit was not meritorious
after stating the following: "Hillman offers only his accusations in his Affidavit in support
of his allegations against Larrison. He offers no trial transcript to provide context for the
purported statements or other evidence buttressing his contentions that Larrison
committed perjury." (Feb. 14, 2017 Decision, Entry & Order at 2.)
{¶ 12} Hillman's affidavit offered more than mere accusations. He cited several
specific statements made by Larrison while on the witness stand that he claimed were
false. Furthermore, contrary to the trial court's observation, Hillman attached transcripts
No. 17AP-160 4
of Larrison's trial testimony to an affidavit filed with the trial court on April 20, 2016.1
Hillman also attached a copy of the 911 report that he claimed supported his accusation
that Larrison committed perjury. To conclude that Hillman's affidavit lacked a
meritorious claim, the trial court relied on an erroneous characterization of the record.
Although likely an oversight, it was nevertheless error to fail to address Hillman's
accusations and consider the evidence he presented in support of them. Accordingly, we
sustain the first assignment of error insofar as it asserts that the trial court did not base its
ruling on the evidence in the record, but overrule the assignment of error insofar as it
asserts that the ruling violated any constitutional right.
IV. SECOND ASSIGNMENT OF ERROR
{¶ 13} In his second assignment of error, Hillman argues that the trial court judge
was biased because her decision arose from "personal vindictiveness or, ill will" that
resulted from Hillman having filed an R.C. 2935.09 accusation by affidavit against her in
another proceeding. (Appellant's Brief at 4.)
{¶ 14} The exclusive remedy for a claim of judicial bias against a judge of a court of
common pleas is R.C. 2701.03. State v. Scruggs, 10th Dist. No. 02AP-621, 2003-Ohio-
2019, ¶ 15. However, under that statute, only "the Ohio Supreme Court, not the appeals
courts, has authority to determine a claim that a common pleas court judge is biased or
prejudiced." Wardeh v. Altabchi, 158 Ohio App.3d 325, 2004-Ohio-4423, ¶ 21 (10th
Dist.). Because this court lacks jurisdiction to review claims of judicial bias, Hillman's
second assignment of error is overruled.
V. CONCLUSION
{¶ 15} For the foregoing reasons, we sustain the first assignment of error on the
grounds that the trial court's ruling was not based on the evidence of the record, but
overrule it with regard to any alleged effect this ruling had on Hillman's constitutional
rights. The second assignment of error is overruled. Accordingly, the judgment of the trial
court is reversed and this case is remanded to the trial court with instructions to consider
whether Hillman has made a meritorious allegation of perjury, based on his affidavit and
the documentation in the record he submitted in support of the allegation.
1 Analogously, we have held that a petition to correct jail-time credit pursuant to R.C.
2929.19(B)(2)(g)(iii) does not require proof by the supplying of a transcript. State v. Gibson, 10th Dist.
No. 17AP-200, 2017-Ohio-7254, ¶ 10.
No. 17AP-160 5
Judgment reversed; case
remanded with instructions.
BRUNNER, J., concurs.
DORRIAN, J., dissents in part and concurs in part.
DORRIAN, J., dissenting in part and concurring in part.
{¶ 16} I respectfully dissent from the majority and would overrule appellant's first
assignment of error in its entirety. I disagree that the trial court's characterization of the
record was erroneous. Appellant did not provide the court with a transcript of the trial
during which the alleged perjury occurred. Rather, he attached to his request for probable
cause hearing an affidavit filed on April 20, 2016 three pages excerpted from a transcript
of a court proceeding not identified by case number or date. The excerpts do not contain
any certificate signed by a court reporter. Appellant also attached one page of what he
refers to as a 911 report; however, there is no indication on the document that it was in
fact a 911 report or from which jurisdiction the document was obtained. The document is
not authenticated or certified, and appellant himself seems to suggest the document was
not admitted into evidence at the trial during which the alleged perjury occurred.
Appellant states in his affidavit that "this 911 transcribed call, document was obtained
through the public information act by the complaintant's [sic] sister Cheryl Ayler, who has
kept a copy of said document by which the trial court, prosecutor's office and judge fought
so hard for me not to have, and include in evidence at my trial." (Apr. 20, 2016 Request
for Probable Cause Hearing, Aff. at ¶ 2.) I agree with the trial court that appellant offered
no trial transcript to provide context for the purported statements or other evidence
buttressing his contentions that Officer Larrison committed perjury. I also agree,
considering the documents attached to the affidavit filed April 20, 2016, that appellant's
affidavit was not meritorious. Accordingly, I would affirm the trial court.
{¶ 17} I concur with the majority and would overrule appellant's second
assignment of error.
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