French v. State

• Decision Date: 31 July 2001
• Docket Number: No. 03A05-0009-CR-381.,03A05-0009-CR-381.
• Citation: 754 N.E.2d 9
• Parties: Roman Lamont FRENCH, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

754 N.E.2d 9

Roman Lamont FRENCH, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 03A05-0009-CR-381.

Court of Appeals of Indiana.

July 31, 2001.

Dennis M. Stark, Columbus, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Adam M. Dulik, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge

Appellant, Roman Lamont French, appeals the denial of his motion for change of judge and the denial of jail time credit. We reverse the denial of the motion for change of judge and remand for a new sentencing hearing.

On May 27, 1998, French was arrested in Bartholomew County for misdemeanor battery and invasion of privacy and detained in the Bartholomew County Jail. Thereafter, on August 22, 1998, while still being detained in the Bartholomew County Jail, French was involved in an altercation with a correctional officer. As a result, French was charged with Battery, a Class D felony, and Resisting Law Enforcement, a Class D felony, and later charged as a habitual offender. An arrest warrant, stemming from these charges, was served upon him on October 15, 1998.

On November 10, 1998, while French remained incarcerated, he was served with another warrant for Dealing in Cocaine, a Class A felony, under cause number 03D01-9810-DF-1044. French was tried on that charge and a habitual offender count, found guilty, and sentenced to sixty years incarceration. With regard to that sentence, French received jail time credit for the time spent incarcerated from May 27, 1998, the date he was originally incarcerated in the Bartholomew County Jail, to the date of his sentencing hearing on June 23, 1999.

On June 26, 2000, before the scheduled trial on the felony battery and resisting law enforcement charges, French filed a motion for change of judge. In his motion, French claimed that after being transferred from the Michigan City prison to the Bartholomew County Jail, he learned of disparaging remarks the trial judge allegedly had made against him during the March 29, 2000 sentence modification hearing of another defendant, Larry Montel Booker. However, because French was not aware of the exact nature of the comments, he requested a transcript of the hearing. Once French received and reviewed the transcript, he filed another motion with the court on July 20, 2000, asking the court to set the change of judge motion for hearing. In the motion, French asserted that he had "reviewed the transcript provided by the Court and believe[d] that it accurately and completely sets forth the factual basis for [French's] [m]otion." Record at 80.

During the July 25, 2000 hearing on the change of judge motion, French testified under oath concerning the trial judge's comments and counsel introduced into evidence the transcript of Booker's sentence modification hearing. Particular reference was made to the following comments:

"Well Mr. Booker, since you were sentenced back in February of ninety-eight, I've had the distinct displeasure of spending a lot of time with Roman Lamont French, and very little of that time has been very much fun. I really can't think of anybody who has been more disagreeable to deal with than him. Had I been in your situation, I don't know that I would have shot the gun up in the air. But I think at that time, I didn't know much about Mr. French. As I've said, I've learned a lot more about him since then. I'm going to go ahead and modify your sentence." Supplemental Record at 5-6, Defendant's Exhibit A (emphasis supplied).

Though French contended that the statement indicated bias on the part of the trial court, his motion was denied.

Thereafter, on August 4, 2000, French entered into a plea agreement with the State with regard to the charges arising from the jail altercation. In return for French's guilty plea to resisting law enforcement as a Class D felony, the State agreed to dismiss the battery and habitual offender charges and other unrelated charges and promised not to refile still other charges. On August 30, 2000, French was sentenced to the maximum sentence of three years incarceration to be served consecutive to his sixty-year sentence for dealing in cocaine. The trial court denied French any jail time credit because according to the trial court, French had already been awarded all of the credit to which he was entitled on the dealing charge.

I. Change of Judge

French first contends that the trial judge erred in denying his motion for change of judge because the comments the judge made during Booker's sentence modification hearing demonstrated the judge's personal animosity and bias. French's motion was founded upon Criminal Rule 12 which provides as follows:

"(B) Change of Judge—Felony and Misdemeanor Cases. In felony and misdemeanor cases, the state or defendant may request a change of judge for bias or prejudice. The party shall timely file an affidavit that the judge has a personal bias or prejudice against the state or defendant. The 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. The request shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice.

* * *

(D) Time Period for Filing Request for Change of Judge or Change of Venue. In any criminal action, no change of judge or change of venue from the county shall be granted except within the time herein provided.

(1) Ten Day Rule. An application for a change of judge or change of venue from the county shall be filed within ten (10) days after a plea of not guilty, or if a date less than ten (10) days from the date of said plea, the case is set for trial, the application shall be filed within five (5) days after setting the case for trial. Provided, that where a cause is remanded for a new trial by the Supreme Court or Court of Appeals, such application must be filed not later than ten (10) days after the party has knowledge that the cause is ready to be set for trial.

(2) Subsequently Discovered Grounds. If the applicant first obtains knowledge of the cause for change of venue from the judge or from the county after the time above limited, the applicant may file the application, which shall be verified by the party specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten (10) days, and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion." Crim.R. 12(D) (emphasis supplied).

Though the State concedes that French was permitted to file a motion on subsequently discovered grounds, for the first time upon appeal the State contends that French failed to properly verify his petition and include the "facts showing the cause for a change." According to the State, while French admittedly did not discover the factual basis for the motion until after he had acquired the transcript, he had a duty to amend his original motion to include the factual basis. French's failure, the State argues, prevented the prosecutor from learning the factual basis for the motion until the July 25, 2000 hearing and denied it the opportunity to file counter-affidavits.

When a defendant files a belated motion under Crim.R. 12(D)(2), "it must be verified by the party, specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for change, and why the cause could not have been discovered by the exercise of due diligence." State v. Hahn, 660 N.E.2d 606, 609 (Ind.Ct.App.1996), trans. denied. "The sine qua non of a verified petition is that the person executing it affirm under the penalties for perjury, or state upon oath, before an official authorized to administer oaths, that the representations within the body of the petition are true." Hendricks v. State, 426 N.E.2d 367, 369 (Ind.1981).

Upon reviewing the two motions filed by French, we agree that they were not verified, as they were not executed under penalty of perjury. The motions also did not include the facts showing the cause for change. The failure to comply with the procedural requirements of Crim.R. 12(D) has been held sufficient to justify the denial of a motion for change of judge. See Flowers v. State, 738 N.E.2d 1051, 1059-60 (Ind.2000) ("The law is settled that a defendant is not entitled to a change of judge where the mandates of Criminal Rule 12 have not been followed."). See also Carroll v. State, 438 N.E.2d 745, 747 (Ind. 1982) ("[T]he failure to follow the clear dictates of Rule 12 of the Criminal Rules of Procedure justifies the denial of the motion . . .").

Nevertheless, French contends that the State has waived any argument concerning procedural deficiencies by failing to object at the hearing and electing to proceed on the merits. There is support for French's contention. It has been held that the failure to raise lack of verification at the earliest opportunity results in waiver upon appeal. In Brown v. State, 458 N.E.2d 245, 249 (Ind.Ct.App.1983), trans. denied, the defendant appealed the denial of his petition for post-conviction relief and, for the first time upon appeal, the State argued that the petition had not been properly verified and, therefore, should have been dismissed. This court noted that "want of verification is waived if an objection is not presented at the earliest possible opportunity" and, based upon this principle, found that the State had waived its claim. Id. at 249.

A similar result was reached in Hendricks, supra, 426 N.E.2d 367. Upon appeal of the denial of his petition for post-conviction relief,...