Mathews v. State

• Citation: 64 N.E.3d 1250
• Decision Date: 12 December 2016
• Docket Number: No. 01A02–1601–CR–104.,01A02–1601–CR–104.
• Parties: David A. MATHEWS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

64 N.E.3d 1250

David A. MATHEWS, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 01A02–1601–CR–104.

Court of Appeals of Indiana.

Dec. 12, 2016.

Kimberly A. Jackson, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl Scharnberg, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

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.

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 Attorney Miller noticed his intent to decline the appointment on August 3, 2004, and was withdrawn by the court the same day.¹ On March 15, 2005, Mathews admitted to violating his probation in the 2003 Case.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 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 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.

[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 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.

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, 47 S.Ct. 437, 71 L.Ed. 749 (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 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...