Lehman v. State

• Decision Date: 31 May 2016
• Docket Number: No. 20A03–1511–CR–1963.,20A03–1511–CR–1963.
• Citation: 55 N.E.3d 863
• Parties: Joseph C. LEHMAN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

55 N.E.3d 863

Joseph C. LEHMAN, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 20A03–1511–CR–1963.

Court of Appeals of Indiana.

May 31, 2016.

Joseph C. Lehman, Goshen, IN, Appellant Pro Se.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

BRADFORD, Judge.

Case Summary

[1] In February of 2014, the Indiana Supreme Court suspended Appellant–Defendant Joseph Lehman from practicing law in the state of Indiana for not less than two years. In the year following his suspension, Lehman continued to provide various legal services to new and existing clients. Appellee–Plaintiff the State of Indiana (“the State”) subsequently charged Lehman with three counts of Class B misdemeanor practicing law by a non-attorney. After a bench trial, Lehman was found guilty as charged. Lehman raises three contentions for our review on appeal: (1) whether the trial court erred in denying his request for change of judge; (2) whether Lehman waived his right to a trial by jury; and (3) whether there was sufficient evidence to support his convictions. We affirm the trial court in all respects.

Facts and Procedural History

i. Jim Marlow

[2] On February 19, 2014, the Indiana Supreme Court suspended Lehman from the practice of law for “not less than two years, without automatic reinstatement, beginning April 3, 2014.” Ex. 2, p. 3. In early 2014, Jim Marlow hired Lehman for $800 to represent him in a divorce. When asked about his suspension, Lehman told Marlow that “it was nothing to worry about that he was going to appeal it and we'd have no issues.” Tr. p. 9.

[3] Attorney Vincent Campiti represented Marlow's wife in the divorce and was not aware of Lehman's suspension. On April 9 and 10, 2014, Lehman and Campiti exchanged several emails in which the two attempted to finalize a settlement agreement between Marlow and his wife. On April 10, Lehman emailed Campiti asking him to “review the changes I made to meet your issues. If acceptable, have your client sign, and I'll propose that Mr. Marlow accept those changes.” Ex. 3, p. 4. On April 22, Lehman sent Campiti an email which read, “Mr. Marlow will be reviewing the agreement tomorrow at 3:30 PM.” Ex. 3, p. 7. Between April 21 and 25, phone records indicate that Marlow and Lehman exchanged several calls and text messages. According to Marlow, Lehman wished to meet and review documents pertaining to his divorce. Marlow ultimately decided to “just walk[ ] away,” declined to meet with Lehman, and hired another attorney. Tr. p. 9.

ii. Neredya Alvarez

[4] In October of 2014, Neredya Alvarez was looking for an attorney to represent her in a divorce and was referred to Lehman by a co-worker. Alvarez called Lehman who arranged to meet her at a restaurant in Goshen. Alvarez paid Lehman an $80 consultation fee and, when she asked for a receipt, Lehman wrote one on the back of a business card. The front of the business card read “Joseph C. Lehman, Attorney at Law” and provided a Goshen address. Ex. 5.

[5] After speaking for approximately five to fifteen minutes about Alvarez's legal issues, Lehman told Alvarez “Well I can't help you in Court because I'm not supposed to go to Court, but I can complete the paperwork for you,” and stated that it would cost $1000 to complete the paperwork. Tr. p. 38. Alvarez was upset that Lehman did not tell her of his inability to go to court prior to setting up the meeting. Lehman never informed Alvarez that he was suspended from practicing law. Alvarez met with another attorney shortly thereafter. When the attorney learned of Alvarez's dealings with Lehman, he informed Alvarez of Lehman's suspension and assisted her in reporting the misconduct. On October 28, 2014, Alvarez met with Goshen police who suggested that she ask Lehman to return the $80 consultation fee. Ultimately, Lehman returned the money.

iii. Innocente Lacan

[6] In November of 2014, Innocente Lacan hired Lehman to re-title some real estate in order to remove his ex-wife's name from the title.¹ On November 22, 2014, Lacan and Lehman met at a public library and agreed on a fee of $50 for preparing the document needed to re-title the property. Lehman prepared a quitclaim deed for Lacan on the same day, Lacan paid Lehman $50, and Lehman gave Lacan a receipt bearing the initials JL. The quitclaim deed and receipt were admitted into evidence at trial. Lehman did not inform Lacan that his license was suspended and Lacan believed he was hiring an attorney when he contracted with Lehman.

[7] Lacan's ex-wife refused to sign the deed and Lehman explained how Lacan could go about getting the deed filed through the clerk of courts without his ex-wife's signature. Lacan took the deed to the Elkhart County clerk's office and gave it to Patti Miller, the clerical supervisor at the office. At some point, Lacan informed Miller that Lehman had prepared his paperwork. Miller was aware that Lehman was suspended from practicing law and notified police.

iv. Procedural History

[8] On December 19, 2014, the State charged Lehman with two counts of Class B misdemeanor practicing law by a non-attorney. The State later amended its charging information to include a third count of practicing law by a non-attorney. On January 26, 2015, Lehman filed a motion for a change of judge. After a March 18, 2015 hearing, the trial court denied Lehman's motion. On April 22, 2015, the trial court held a hearing at which Lehman requested a jury trial and motioned for severance. On May 8, 2015, the trial court found that Lehman had waived his right to a jury trial and denied his motion for severance. A bench trial was held on October 5, 2015, and Lehman was found guilty as charged and sentenced to 540 days suspended to one year of probation.

Discussion and Decision

I. Change of Judge

[9] Lehman argues that the trial judge was prejudiced against him and erred in denying his motion for change of judge. Indiana Criminal Procedure Rule 12(B) provides as follows:

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.

“[T]he appropriate standard of review of a trial judge's decision to grant or deny a motion for change of judge under Indiana Criminal Rule 12 is whether the judge's decision was clearly erroneous. Reversal will require a showing which 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).

[10] Lehman's affidavit for change of judge reads as follows:

1. In 2007, a fellow attorney canvassed Judge Bonfiglio regarding his perception of me and was told that he had no pleasant experiences with me, in that I often wait until the day before a hearing to request a continuance.

2. Short notice continuances of various types of hearings are not unknown, even in medium sized firms, much less for those of us in solo practice.

3. And it is also not unknown for an attorney calendar to open up at very short notice, so for the court to infer that I was gaming the system by showing up in Juvenile Court the next day, is not fair.

4. I have no problem with judges joking about a mistake in a translation into/from Spanish, but it seems to show just an attitude against me that has roots from back even before I ran for judge against George Biddlecome, whom I had never met, but who would not even shake my extended hand.

5. Now, at the end of March, when I appeared in court, for an update on a case to be set for trial, given that I had to close my practice on April 3, 2014, I could not understand Judge Bonfiglio's attitude when I stated that I would have been able to be a very good trial attorney for the defendant.

6. Even though I have always shown respect for all judges in this county, there have been negatives thrown against me for many years, by certain members of the legal community, which I understand is part of the territory, here in Elkart county.

7. Finally, since I do not know Judge Bonfiglio socially or personally, my perceptions might be incorrect, but I nevertheless must infer a worst case scenario regarding potential bias or prejudice.

Appellant's Amended App. p. 24. According to the chronological case summary (“CCS”), the trial court denied Lehman's motion for change of judge because “there [were] no cogent statements in [his] Affidavit for Change of Judge that would support a rational inference of bias or prejudice by this judicial officer. See Order for further.” Appellant's App. p. 3. However, Lehman did not include the trial court's written order in his appellate appendix. The State argues that, due to this failure, Lehman has provided an incomplete record for review in violation of Indiana Appellate Rule 50(B), and thus has waived this issue for review. While it is unfortunate that we do not have the trial court's order, we prefer to resolve matters on the merits where possible and find the record sufficient to do so here. See Rexroad v. Greenwood Motor Lines, Inc., 36 N.E.3d 1181, 1183 (Ind.Ct.App.2015) (“where possible, we prefer to address cases on their merits”).

[11] “Adjudicating a request for change of judge based on Rule 12(B) requires an objective, not subjective, legal determination by the judge, who is ‘to examine the affidavit, treat the facts recited in the affidavit as true, and determine whether these facts support a rational inference of bias or prejudice.’ ” Voss v. State, 856 N.E.2d 1211, 1216 (Ind.2006) (quoting Sturgeon,...