FILED
Dec 12 2016, 6:02 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kimberly A. Jackson Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Karl Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David A. Mathews, December 12, 2016
Appellant-Defendant, Court of Appeals Case No.
01A02-1601-CR-104
v. Appeal from the Adams Superior
Court
State of Indiana, The Honorable Patrick R. Miller,
Appellee-Plaintiff Judge
Trial Court Cause No.
01D01-1411-F6-52
Mathias, Judge.
[1] David A. Mathews (“Mathews”) was convicted in Adams Superior Court of
misdemeanor operating a vehicle while intoxicated and felony obstruction of
justice. Mathews appeals the order of the trial judge, his former lawyer in a
tangentially related case, denying his motion for recusal and requests a new
trial. We affirm.
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Facts and Procedural Posture
[2] On July 24, 2003, Mathews was charged with several violations of Title Nine of
the Indiana Code, “Motor Vehicles,” including Class D felony operating a
vehicle while intoxicated endangering a person. The case was heard in Adams
Superior Court under cause number 01D01-0307-FD-053 (“the 2003 Case”).
Patrick R. Miller, then a public defender (“Attorney Miller”), now Adams
Superior Court judge (“Judge Miller”), was appointed counsel to Mathews. On
November 26, 2003, with the advice of Attorney Miller, Mathews pleaded
guilty to the felony charge in exchange for dismissal of the remaining charges
against him. Mathews was sentenced the same day, with most of the sentence
suspended to probation.
[3] On June 3, 2004, new charges were filed against Mathews. As a result, on July
22, 2004, Mathews’s probation officer filed a petition of probation violation in
the 2003 Case. The court appointed Attorney Miller to represent Mathews
again in the probation violation proceeding. Attorney Miller noticed his intent
to decline the appointment on August 3, 2004, and was withdrawn by the court
the same day.1 On March 15, 2005, Mathews admitted to violating his
probation in the 2003 Case.
[4] On May 16, 2011, almost eight years after being charged in the 2003 Case,
Mathews was charged with Class D felony intimidation and Class B
1
The grounds for Attorney Miller’s withdrawal do not appear in the record.
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misdemeanor public intoxication. In its final disposition,2 the case was heard
under cause number 01C01-1202-FD-001 (“the 2011 Case”). In light of his prior
record, including the 2003 Case, the State sought habitual substance offender
status for Mathews under now-repealed Indiana Code § 35-50-2-10(b), relying
in part on the conviction in the 2003 Case as a predicate for the habitual
substance offender finding. The proceeding was to be bifurcated, with the
felony and misdemeanor charges to be heard in the first phase and the recidivist
charge in the second. Presiding over Mathews’s February 8, 2012, jury trial in
Adams Superior Court was Attorney Miller, who had since been elected in
2008 to become Judge Miller, as of January 1, 2009, all more than five years
after his representation of Mathews as a public defender.
[5] At the conclusion of the first phase, the jury returned guilty verdicts on the
felony and misdemeanor charges. Mathews then moved for a mistrial, arguing
that Judge Miller’s representation of Mathews in the 2003 Case disqualified
Judge Miller from presiding over proceedings in the 2011 Case because the
convictions in the 2003 Case were to be part of the State’s evidence on the
recidivist charge in the 2011 Case. Judge Miller denied Mathews’s motion but,
out of an abundance of caution and concern for the appearance of impropriety,
transferred the case to the judge of Adams Circuit Court to hear the recidivist
charge. The circuit court jury found Mathews to be a habitual substance
2
Before being transferred to Adams Circuit Court as described below, the case was heard under cause
number 01D01-1105-FD-0048.
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offender. After sentencing, Mathews was committed to the Department of
Correction. This court affirmed Judge Miller and Mathews’s convictions on
direct appeal. Mathews v. State, 978 N.E.2d 438 (Ind. Ct. App. 2012).
[6] On November 7, 2014, while on parole from his sentence in the 2011 Case,
Mathews was charged with a number of new motor vehicle offenses, including
Class A misdemeanor operating a vehicle while intoxicated, and with Level 6
felony obstruction of justice, stemming from Mathews’s refusal to comply with
a search warrant ordering a draw of his blood. These charges, heard in Adams
Superior Court under cause number 01D01-1411-F6-0052 (“the 2014 Case”),
underlie Mathews’s current appeal. As a result of the charges, Mathews was
found to have violated his parole in the 2011 Case and remanded to the
Department of Correction.
[7] On November 10, 2014, more than eleven years after being charged in the 2003
Case, Mathews was brought before Judge Miller for his initial hearing in the
2014 Case. Neither Mathews, who was unrepresented at the initial hearing, nor
Judge Miller brought up Judge Miller’s former representation of Mathews in
the 2003 Case or Mathews’s motion for a mistrial in the 2011 Case. Judge
Miller recommended that Mathews decide quickly whether he wanted to retain
private counsel or have counsel appointed, or risk missing important deadlines
and thus “giv[ing] up rights, pleadings or defenses” available to him. Tr. p. 12.
On December 15, 2014, Judge Miller appointed a public defender to Mathews’s
case.
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[8] On April 1, 2015, Mathews and counsel appeared before Judge Miller for a
pretrial conference. There, Mathews made the following statement to the court:
Your Honor, I would like to make two requests of my public
defender at this time. [First, I want him to move to dismiss for
lack of a speedy trial.] And the second request your honor, is that
I would like him to file a Change of Venue or Change of Judge
due to your bias because of the past experiences that I had with
you on the last trial. You know I had you thrown off the bench
your honor and I don’t believe that you can make any fair
judgment without being uh showing your personal and
professional feelings towards me or the decisions that you make
in that courtroom. Um, that is just how I feel. I still feel that I got
denied a fair trial in the last process that I went in front of you
your honor. And I wish for [my attorney] to file both of those if
he could?
Id. at 26–27. Mathews’s counsel then requested to be withdrawn from the
representation for lack of his client’s trust. However, Mathews denied that he
wanted a different attorney. Judge Miller denied counsel’s request, invited him
to file a formal motion to withdraw if he wished, and further invited counsel,
if you believe that it is appropriate and not [frivolous] to file a
motion to dismiss or motion to change venue or judge, feel free
to file it, I will address them promptly at that point in time once
they’re filed, but they have to be in writing.
Id. at 30.
[9] On June 9, 2015, Mathews appeared before a senior judge of Adams Superior
Court for another pretrial conference. Mathews appeared with new counsel, a
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different public defender, who explained that Mathews’s previous counsel had
resigned from the public defender’s office.
[10] The same day as the conference, June 9, 2015, the chronological case summary
shows entry of “Defendant’s Verified Motion for Recusal of Judge.” The
“verified motion” was not verified, cited no trial rule or statute, and was
misdated by more than eight months. Factually, the motion alleged merely that
Judge Miller had previously represented Mathews and previously recused
himself from Mathews’s trial in the 2011 Case. Legally, the motion alleged that
Judge Miller was required to recuse himself under “Judicial Canon 2.11(A),”
and that failure to recuse would deprive Mathews of his “substantive due
process” rights. Appellant’s App. p. 56. The motion was signed by Mathews’s
former attorney. Id. at 57. More than two months had passed since Mathews
raised the issue before Judge Miller at the April 1, 2015, pretrial conference.
[11] On June 15, 2015, Judge Miller denied the motion for recusal. The grounds for
that denial do not appear in the record.
[12] On November 23, 2015, Mathews’s case was tried to a jury before Judge Miller.
The jury found Mathews guilty of operating while intoxicated and obstruction
of justice as charged. Mathews was sentenced by Judge Miller on December 17,
2015.
[13] This appeal followed.
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Standard of Review
[14] We review rulings on motions for recusal for clear error. Garland v. State, 788
N.E.2d 425, 433 (Ind. 2003).
Discussion
[15] It is well settled that adjudication by an impartial tribunal is one of the
fundamental requirements of due process imposed on the courts of this state by
the Fourteenth Amendment to the federal constitution. Tumey v. Ohio, 273 U.S.
510, 535 (1927); Blanche v. State, 690 N.E.2d 709, 714 (Ind. 1998). Judges are
presumed impartial and unbiased. Garland v. State, 788 N.E.2d 425, 433 (Ind.
2003). “[T]he law will not suppose a possibility of bias or favour in a judge,
who is already sworn to administer impartial justice, and whose authority
greatly depends upon that presumption and idea.” 3 William Blackstone,
Commentaries *361.
I. Recusal Under the Rules of Criminal Procedure
[16] Ordinarily in a criminal case, parties seeking to overcome the presumption of
judicial impartiality must move for a change of judge under Rule 12 of the
Indiana Rules of Criminal Procedure. “The law is settled that a defendant is not
entitled to a change of judge where the mandates of . . . Rule 12 have not been
followed.” Flowers v. State, 738 N.E.2d 1051, 1060 (Ind. 2000). Rule 12 requires
the movant to submit a verified affidavit reciting the reasons why bias or
prejudice is believed to exist and historical facts supporting those reasons. Ind.
Crim. Rule 12(B). The motion must be made within thirty days of the initial
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hearing unless due diligence could not have discovered the reasons for recusal
within that period. Crim. R. 12(D)(1). The judge must grant the motion if the
facts recited in the affidavit support a rational inference of bias or prejudice.
Crim. R. 12(B).
[17] Mathews concedes that his cursory, unverified motion for recusal, filed seven
months after his initial hearing before Judge Miller, does not follow the
mandates of Rule 12. However, Mathews argues that he is nonetheless entitled
to relief because the Indiana Code of Judicial Conduct (“the Code”) required
Judge Miller to recuse himself.
II. Recusal Under the Code of Judicial Conduct
[18] The Code provides that “[a] judge shall disqualify himself . . . in any proceeding
in which the judge’s impartiality might reasonably be questioned . . . .” Ind.
Judicial Conduct Rule 2.11(A). This general rule specifically includes cases
where the judge has “served as a lawyer in the matter in controversy . . . .” Id.
at (A)(6). The Comment to Rule 2.11 notes that a judge’s obligation to
disqualify himself under the Rule “applies regardless of whether a motion to
disqualify is filed.” Jud. Cond. R. 2.11 cmt. [2]. The Comment further
recommends that a judge “disclose on the record information that the judge
believes the parties or their lawyers might reasonably consider relevant to a
possible motion for disqualification, even if the judge believes there is no basis
for disqualification.” Id. at [5].
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[19] Mathews does not allege actual bias or prejudice against him on Judge Miller’s
part. Rather, Mathews argues that Judge Miller’s impartiality might have been
reasonably questioned in light of his former representation of Mathews in the
2003 Case and in light of his earlier recusal from the recidivism proceeding in
the 2011 Case. Mathews argues further that the 2003 Case was a “matter in
controversy” in the 2014 Case. Finally, Mathews observes that Judge Miller did
not disclose his prior involvement with Mathews, but that this would
reasonably have been considered relevant and therefore should have been
disclosed. The State disagrees.
A. The Code of Judicial Conduct Does Not Create Freestanding Rights
of Enforcement in Litigants
[20] At the outset it is necessary to address the proposition underlying Mathews’s
arguments: that the Code supplies a freestanding mechanism for relief,
independent of a properly brought Rule 12 motion. We disagree.
[21] Mathews relies on Sisson v. State, 985 N.E.2d 1 (Ind. Ct. App. 2012), and Voss v.
State, 856 N.E.2d 1211 (Ind. 2006), in support of this proposition. In the latter
case, Voss lodged an interlocutory appeal challenging the trial judge’s
temporary transfer of Voss’s case to another judge for the limited purpose of
resolving a Rule 12 recusal motion brought by the State. Our supreme court
held both that the transfer was improper and that the State’s motion and the
allegations contained therein were insufficient to support a rational inference of
bias or prejudice as a matter of law. Voss, 856 N.E.2d at 1219-20.
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[22] The court then expressly declined to answer whether the judge “should
nevertheless disqualify himself in this case.” Id. at 1220. The court noted the
judge’s “continuing obligation [under the Code of Judicial Conduct] to sua
sponte disqualify himself” where the Code so requires. Id. The court further
noted that the Code requires consideration of a broader “array of
circumstances” than does Rule 12, including “the judge’s own personal beliefs,
values, [and] opinions,” and that therefore “the issue under [the Code] may
provide an independent basis requiring disqualification even if the analysis
required for determination under [Rule 12] would not require a change of
judge.” Id. at 1220–21. After considering what the Code might require of the
judge in this case, the court then remanded the case to the judge “so that he
may personally consider whether to disqualify himself if he deems it
appropriate” under the Code. Id. at 1221.
[23] In Sisson, this court considered the requirements of the Code independently of a
procedurally defaulted Rule 12 motion, only to conclude that a judge qualified
to preside over the guilt phase of trial cannot be disqualified to preside over the
sentencing phase. 985 N.E.2d at 19-20.
[24] Recusal cases have sometimes treated the Code as supplying the substantive
content of the standard for recusal under Rule 12. See, e.g., Thakkar v. State, 644
N.E.2d 609 (Ind. Ct. App. 1994). However, no decision of this court or our
supreme court has granted relief solely on the basis of the Code’s requirements
absent an independent procedural vehicle for bringing the claim. See, e.g.,
Patterson v. State, 926 N.E.2d 90 (Ind. Ct. App. 2010) (claim for ineffective
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assistance of counsel) (in light of the Code’s requirements, ineffective assistance
when defendant’s attorney did not move for recusal under Rule 12); Calvert v.
State, 498 N.E.2d 105 (Ind. Ct. App. 1986) (motion for mistrial) (defendant’s
attorney learned of disqualifying facts during trial and promptly moved for
mistrial); Stivers v. Knox County Department of Public Welfare, 482 N.E.2d 748
(Ind. Ct. App. 1985) (claim of fundamental error) (unnamed procedural
deficiencies in the Rule 12 motion excused by fundamental error).
[25] It is undeniable that the Code fixes a judge’s obligations. We hold, however,
that those obligations do not create freestanding rights of enforcement in private
parties. The Code’s obligations are enforced by the individual judge against
himself in the first instance, see Voss, 856 N.E.2d at 1221 (remand the
appropriate remedy, so that the judge “may personally consider whether to
disqualify himself” under the Code), Tyson v. State, 622 N.E.2d 457 (Ind. 1993)
(recusal analysis and statement of Chief Justice Shepard), and in the last
instance by disciplinary actions of our supreme court. See Ind. Admission and
Discipline Rule 25(VIII) (“Disciplinary Procedure”).
[26] Accepting Mathews’s contrary position would effectively nullify Rule 12 by
creating a new species of recusal motion that could be brought at any time, in
any manner, on grounds far broader than those contemplated by Rule 12. See
Voss, 856 N.E.2d at 1220 (contrasting the “broad array of circumstances” to be
considered under the Code with the limited “assertions of historical fact” to be
considered in Rule 12 affidavits). This cannot be the result intended by the
drafters of Rule 12 and of the Code. See Jud. Cond. R. Preamble [3] (“The Code
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is intended . . . to provide a basis for regulating [judicial] conduct through
disciplinary agencies.”), Scope [7] (“The Code . . . is [not] intended to be the
basis for litigants to seek collateral remedies against each other or to obtain
tactical advantages . . . .”).
[27] Moreover, Mathews’s position would allow litigants, trial courts, and indeed
this court to usurp the exclusive supervisory authority of our supreme court
over judicial conduct. See Ind. Const. art. VII, § 4 (original jurisdiction of
supreme court over judges and courts); Admis. Disc. R. 25(I)(A) (exclusive,
original jurisdiction of supreme court over discipline of judges); Ind. Appellate
Rule 4(B)(2) (exclusive jurisdiction of supreme court over supervision of
judges), (3) (exclusive jurisdiction of supreme court over supervision of courts).
[28] For these reasons, Mathews is not entitled here to consideration of his
freestanding claim for recusal under the Code.
B. Judge Miller Was Not Required to Recuse Himself Under the Code
[29] Even if this court were to undertake independent review of Judge Miller’s
decision in light of the Code’s requirements, Mathews would not prevail.
[30] First, in support of his position that the 2003 Case was a “matter in
controversy” in the 2014 Case, Mathews argues that the 2003 Case (in which
Attorney Miller represented Mathews) was “in controversy” in the 2011 Case
(the recidivist phase of which Judge Miller recused himself from) as an offense
predicate to the habitual substance offender charge. Mathews argues further
that the 2011 Case was “in controversy” in the 2014 Case (the basis of the
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instant appeal) because the charges in the 2014 Case resulted in revocation of
parole in the 2011 Case; an acquittal in the 2014 Case, argues Mathews,
“presumably would serve as a full defense in the parole proceedings” in the
2011 Case. Appellant’s Br. p. 12.
[31] The first link in this chain, connecting the 2003 Case to the 2011 Case, is
tenuous. See Dishman v. State, 525 N.E.2d 284, 285–86 (Ind. 1988) (no error
where trial judge, formerly a prosecutor who secured convictions underlying a
habitual offender finding, did not recuse himself from the habitual offender
proceeding, because there was no “factual contesting” of the prior convictions);
Gunter v. State, 605 N.E.2d 1209, 1211 (Ind. Ct. App. 1993) (no cause for
disqualification on facts nearly identical to those in Dishman).
[32] The second link, however, connecting the 2011 Case to the 2014 Case, is in fact
no link at all. The decision to revoke Mathews’s parole in the 2011 Case was
entirely and legally independent of the final disposition of the 2014 Case.
[33] Parole may be revoked if a parolee violates the conditions of his parole. I.C. §
11-13-3-10(c). One condition of parole is that the parolee not commit further
crimes during the parole period. Id. at 4(a). Violations of parole may be proved
by a preponderance of the evidence, Harris v. State, 836 N.E.2d 267, 270 (Ind.
Ct. App. 2005), and the rules of evidence do not apply in parole revocation
hearings. Ind. Evidence Rule 101(d)(2). Thus, a parolee’s commission of
another crime in violation of the conditions of his parole may be proved by a
lower quantum of proof than is required for a criminal conviction, and without
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restriction by the rules of evidence. Mathews could have been acquitted by an
insufficiency of admissible evidence proving his guilt beyond a reasonable
doubt, and still have been found to have violated his parole by a preponderance
of otherwise inadmissible evidence, including hearsay. See Harris, 836 N.E.2d at
280 (evidence in parole revocation hearing need only bear “some substantial
indicia of reliability”). The 2003 Case was not, therefore, a “matter in
controversy” in the 2014 Case.
[34] Second, we do not agree with Mathews that Judge Miller’s recusal from the
recidivist proceedings in the 2011 Case could in itself be grounds for reasonably
questioning Judge Miller’s impartiality in a factually and legally unrelated
proceeding two years later. Indeed, to weigh any prior recusal from a
proceeding involving one party in favor of all future recusals from proceedings
involving the same party would perversely disincentivize judges from recusing
themselves where not absolutely mandated by the letter of the law, lest they be
barred in the future from discharging their concurrent duty to “hear and decide”
matters assigned to them. Jud. Cond. R. 2.7.
[35] Finally, as to Judge Miller’s failure to disclose sua sponte his prior
representation of Mathews, we note that this directive appears in a nonbinding
comment to a rule, not in a rule itself. Jud. Cond. R. 2.11 cmt. [5]. However, it
would seem that, as repetitive as such a disclosure might become in the case
history of a serial recidivist like Mathews, disclosure is preferred.
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Conclusion
[36] For these reasons, we cannot say that Judge Miller’s denial of Mathews’s
procedurally defaulted Rule 12 motion was clearly erroneous.
[37] Affirmed.
Robb, J., and Brown, J., concur.
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