Bahm v. State, 10A01-0208-PC-317.

Citation789 N.E.2d 50
Decision Date29 May 2003
Docket NumberNo. 10A01-0208-PC-317.,10A01-0208-PC-317.
PartiesJames M. BAHM, II, Appellant-Petitioner, v. STATE of Indiana, Appellee-Respondent.
CourtCourt of Appeals of Indiana

789 N.E.2d 50

James M. BAHM, II, Appellant-Petitioner,
STATE of Indiana, Appellee-Respondent

No. 10A01-0208-PC-317.

Court of Appeals of Indiana.

May 29, 2003.

789 N.E.2d 53
James M. Bahm, II, Tell City, IN, Appellant pro se

Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

789 N.E.2d 51

789 N.E.2d 52


James M. Bahm, II, appeals the denial of his petition for post-conviction relief. On appeal, Bahm raises four issues, which we restate as:

1. Whether the post-conviction court erred in denying Bahm's motion for change of judge;

2. Whether the post-conviction court erred by denying Bahm's motion for production of documents and interrogatories;

3. Whether the post-conviction court's denial of Bahm's petition was contrary to law; and

4. Whether Bahm received ineffective assistance from his post-conviction counsel.

We affirm in part and reverse and remand in part.


On direct appeal, we summarized the underlying facts as follows:

On May 17, 1997, Bahm struck Caleb Hawes, a two and a half year old infant left in his care, multiple times with his hand and a television remote and threw him across the room, causing the child to vomit and appear lifeless and non-responsive. Bahm took the child to the emergency room. There, he spoke with police and confessed to striking the child.

Bahm v. State, No. 10A01-9904-CR-126, memorandum op. at 2, 727 N.E.2d 1131 (Ind.Ct.App., May 4, 2000).

Bahm was charged with aggravated battery, a Class B felony,1 neglect of a dependent, a Class B felony,2 and criminal recklessness, a Class D felony.3 The jury found Bahm guilty on all charges. The trial court imposed a twenty-year sentence. Bahm appealed, and we affirmed.

Bahm filed a pro se petition for post-conviction relief, in which he alleged his convictions violated double jeopardy principles, insufficient evidence supported his convictions, the jury instructions were fundamentally erroneous, and his trial and appellate counsel were ineffective. In addition, he filed a motion for change of judge and motion for production of documents and interrogatories. The post-conviction court denied Bahm's motion for change of judge and denied Bahm's interrogatories and motion for production of documents. Counsel entered an appearance on behalf of Bahm. A hearing was held on Bahm's petition; however, Bahm's counsel presented no witnesses and submitted no other evidence. The court denied Bahm's petition in an order that contained findings of fact and conclusions of law. Bahm appeals.

789 N.E.2d 54

1. Change of Judge

Bahm first argues that the post-conviction court erred by denying his motion for change of judge. Post-Conviction Rule 1(4)(b) provides:

Within ten [10] days of filing a petition for post-conviction relief under this rule, the petitioner may request a change of judge by filing an affidavit that the judge has a personal bias or prejudice against the petitioner. The petitioner's affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be accompanied by a certificate from the attorney of record that the attorney in good faith believes that the historical facts recited in the affidavit are true. A change of judge shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice.

When a petitioner requests a change of judge, such change is neither "automatic" nor "discretionary."4 Lambert v. State, 743 N.E.2d 719, 728 (Ind. 2001), reh'g denied, cert. denied, 534 U.S. 1136, 122 S.Ct. 1082, 151 L.Ed.2d 982 (2002). Rather, it requires a legal determination by the post-conviction court. Id. We review the court's determination "under a clearly erroneous standard." Azania v. State, 778 N.E.2d 1253, 1261 (Ind. 2002). A decision was clearly erroneous if our review "leaves us with a definite and firm conviction that a mistake has been made." Sturgeon v. State, 719 N.E.2d 1173, 1182 (Ind.1999).

We presume a judge is not prejudiced against a party. Lambert, 743 N.E.2d at 728. To require a change of judge, a judge's bias must be personal. Id. Personal bias "stems from an extrajudicial source meaning a source separate from the evidence and argument presented at the proceedings." Id. Adverse rulings on judicial matters do not indicate a personal bias that calls the trial court's impartiality into question. Harrison v. State, 707 N.E.2d 767, 790 (Ind.1999), reh'g denied, cert. denied, 529 U.S. 1088, 120 S.Ct. 1722, 146 L.Ed.2d 643 (2000). Moreover, a judge's emotional statements at a prior sentencing hearing regarding a defendant's character and the circumstances of the crime committed do not demonstrate a personal bias or prejudice. Lambert, 743 N.E.2d at 729.

Bahm's affidavit alleged the following reasons why the post-conviction judge

789 N.E.2d 55
was biased: (1) "allowing me to be convicted on more than one count for the same offense and facts; and by hearing my case which included evidence which should have been inadmissible"; (Appellant's App. at 15.) (2) "giving Jury Instructions that violated my due process rights and denied me the opportunity to a fair trial by allowing me to be sentenced more severly [sic] than the offense called for, convicted on proof less than prescribed by law"; (Id.) (3) making "statements ... at my sentencing that were inflammatory, grossly prejudicial and biased in nature"; (Id.) (4) "refus[ing] to rule on my Motion for Reconstruction of the Record (accompanied with affidavit) ... which included transcripts for the suppression hearing and the opening and closing statements from trial"; (Id.) and (5) "having an improper sentencing hearing." (Id. at 16.)

As we stated above, adverse rulings on judicial matters do not indicate personal bias or prejudice, nor typically do statements at sentencing hearings. As Bahm did not explain in his affidavit what the alleged "inflammatory, grossly prejudicial" statements were or how his sentencing hearing was "improper," we maintain our presumption that the judge was not personally biased against Bahm. The post-conviction court did not err when it refused to grant Bahm's motion for change of judge.

2. Interrogatories and Production of Documents

Second, Bahm alleges the trial court erred in denying his motion asking the State to answer interrogatories and produce documents. A trial court has broad discretion to control discovery.5 Roche v. State, 690 N.E.2d 1115, 1133 (Ind. 1997), reh'g denied. Accordingly, we will not reverse the trial court for a discovery decision absent an abuse of discretion. Id. An abuse of discretion has occurred if the trial court's decision was against the logic and effect of the facts and circumstances before the court. Hall v. State, 760 N.E.2d 688, 689-90 (Ind.Ct.App.2002), trans. denied.

Bahm's interrogatories and motion for production of documents provided:

Comes now the Petitioner, James M. Bahm II, pro-se and pursuant to Trial Rules 33 and 34, does request that the State produce the following documents and answer the attached interrogatories for the purpose of helping the Petitioner in his Post-Conviction Relief. You are directed to answer each of the interrogatories in writing under oath, and produce each of the requested documents for inspection and copying, within 30 days of service.

1. State the names of all staff that attended to Caleb Hawes at Clark Memorial Hospital on 5-15-97. If they have any notes, charts, opinions, etc ... or any other documents regarding treatment, produce those documents as well as the capacity they were serving on 5-15-97.

2. Did Det. Gross have any conversations with any above listed staff member on or after 5-15-97? If so what was discussed and if there are any notes of those conversations...

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