Hickman v. State, No. 34A02-8801-CR-36

• Docket Nº: No. 34A02-8801-CR-36
• Citation: 537 N.E.2d 64
• Case Date: April 27, 1989
• Court: Court of Appeals of Indiana

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537 N.E.2d 64 Russell HICKMAN, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee. No. 34A02-8801-CR-36. Court of Appeals of Indiana,
Second District. April 27, 1989.

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Merrill W. Otterman, Deputy Public Defender, Kokomo, for appellant.

Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Judge.

Following a bench trial, Russell Hickman (Hickman) was convicted under Count I of a class B felony, attempted child molesting (attempted sexual intercourse) of J.L. and received a ten-year sentence. He was convicted under Count II of a class C felony, child molesting (fondling or touching) of K.U. and received a six-year sentence. He was also convicted under Count III of a separate class C felony, child molesting (fondling or touching) of J.L. and received another six-year sentence. The sentence under Count II was to be served consecutive to the concurrent sentences under Counts I and III.

Hickman's appeal asserts as error:

(1) the denial of his Motion for Change of Judge;

(2) admission into evidence of a prior consistent statement of J.L., one of the victims;

(3) admitting the testimony of A.D.M. and a statement made by Hickman, both of which concerned prior unrelated molestation charges; and

(4) imposition of consecutive sentences.

For reasons hereinafter stated we affirm the convictions upon all three counts but remand for resentencing.

I CHANGE OF JUDGE

Hickman argues that the trial court erred in summarily denying his Motion for Change of Judge. The instant charges were filed April 24, 1986. On May 28, 1986, Hickman appeared in court in person and in the custody of the Sheriff for his initial hearing. At that time the court appointed a public defender, entered a "preliminary" plea of not guilty on behalf of the defendant, fixed an omnibus date of July 28 and a jury trial for January 20, 1987. Record at 27. Apparently defendant did not appear either in person or by counsel on July 28, although the record does not indicate that he had been released from custody during the interim.

The chronology might, at first blush, appear to have required filing of a verified Motion for Change of Judge no later than June 7, 1986 (ten days after the "preliminary" plea entered by the court on behalf of the defendant). However, we hold that the "preliminary" plea entered by the court and before counsel could appear, did not trigger the period for filing a timely motion. See Wilson v. State (1984) 4th Dist.Ind.App., 472 N.E.2d 932. ¹

In any event the Motion for Change of Judge was not filed until September 24, 1986, long after counsel had been appointed and even though no formal not guilty plea was ever entered. See Haskett v. State (1979) 1st Dist., 179 Ind.App. 655, 386 N.E.2d 1012 (counsel appointed three months before motion filed). We, therefore, consider the motion as one which, under Ind. Rules of Procedure, Criminal Rule 12, must be "verified by the party himself 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."

The motion in question was verified but did not contain the requisite information except as to the recitation of the facts

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which were thought to constitute cause for the change. It was asserted that the trial judge was thought to be part Miami Indian whereas Hickman is part Shawnee Indian, and that the two tribes had been and continued to be enemies since 1813. The summary denial of the motion did not recite the basis for the ruling. However, we need not decide whether it was premised upon not being within the ten-day filing period and, therefore, deficient because lacking in essential procedural allegations. See Petruso v. State (1982) Ind., 441 N.E.2d 446; Epps v. State (1977) 267 Ind. 177, 369 N.E.2d 404; Haskett v. State, supra, 386 N.E.2d 1012; cf. Gibson v. State (1988) 4th Dist.Ind.App., 518 N.E.2d 1132, trans. denied.

Without regard to time constraints and pleading requirements, we decide that it was not an abuse of discretion for the court to deny this motion without conducting an evidentiary hearing as contemplated by Crim.R. 12 and as allegedly mandated by Wilson v. State, supra, 472 N.E.2d 932.

As very recently stated in Coates v. State (1989) Ind., 534 N.E.2d 1087, 1091:

"In a criminal proceeding a ruling on a motion for change of judge is discretionary. Denton v. State (1986), Ind., 496 N.E.2d 576; Ind.R.Cr.P. 12. On review, the defendant must show a clear abuse of discretion. Denton, 496 N.E.2d 576. To show abuse of discretion, the defendant in the present case tries to establish prejudice on the trial judge's part. 'Such clear bias or prejudice only exists where there is an undisputed claim or where the judge has expressed an opinion on the merits of the controversy before him.' Wallace v. State (1985), Ind., 486 N.E.2d 445, 456, cert. denied, (1986), 478 U.S. 1010, 106 S.Ct. 3311, 92 L.Ed.2d 723. Accord Lasley v. State (1987), Ind., 510 N.E.2d 1340."

Hickman understandably interprets Wilson v. State, supra, 472 N.E.2d 932, to require an evidentiary hearing in every case in which a Motion for Change of Venue or Change of Judge is properly before the court.

The opinion in Wilson focuses upon a 1981 language change in the rule and reasons that because an opposing party has ten days after filing of the Motion to submit counter affidavits the court must not only set a hearing to be held more than ten days subsequent to the filing of the Motion but must actually conduct a hearing, whether or not such opposing affidavits are filed. In this, the Wilson court is in error. See Linder v. State (1983) Ind., 456 N.E.2d 400. Otte v. Tessman (1981) Ind., 426 N.E.2d 660, relied upon by the court in Wilson, does not require a hearing. See Rumfelt v. Himes (1982) Ind., 438 N.E.2d 980 (Prentice and DeBruler, JJ. dissenting). It requires only that a hearing date be set in order to trigger the notice to an opposing party of the opportunity to seek discovery and/or submit counter affidavits. See Jones v. Berlove (1986) 3d Dist.Ind.App., 490 N.E.2d 393.

As a matter of law, the generalized allegations relating to the antithetical tribal lineage of Hickman vis-a-vis the judge are insufficient to constitute an assertion of bias and prejudice. The motion did not allege that this judge, because of his ancestry, was biased and prejudiced against the defendant because of his heritage. See Tabor v. State (1984) Ind., 461 N.E.2d 118 (pre-trial publicity); Gatchett v. State (1973) 261 Ind. 109, 300 N.E.2d 665 (racial discrimination in jury selection process resulting in community prejudice); Rex v. State (1976) 3d Dist., 171 Ind.App. 104, 355 N.E.2d 282, trans. denied.

By reason of the facial insufficiency of the allegations, as a matter of law, to reflect bias and prejudice, the failure of the court to conduct an evidentiary hearing does not constitute cause for reversal. Cooper v. State (1972) 259 Ind. 107, 284 N.E.2d 799; Haskett v. State, supra, 386 N.E.2d 1012; Rex v. State, supra, 355 N.E.2d 282; see State ex rel. Basham v. Medical Licensing Board (1983) 3d Dist.Ind.App., 451 N.E.2d 691, 696 n. 3 (summary judgment compared with motion to dismiss); but see Stovall v. State (1985) Ind., 477 N.E.2d 252 (hearing was conducted relative...