State v. Shackleford

• Decision Date: 10 March 2010
• Docket Number: No. 10A01-0907-PC-353.,10A01-0907-PC-353.
• Citation: 922 N.E.2d 702
• Parties: STATE of Indiana, Appellant-Respondent, v. Shayla L. SHACKLEFORD, Devonna T. McDonald, Appellees-Petitioners.
• Court: Indiana Appellate Court

922 N.E.2d 702

STATE of Indiana, Appellant-Respondent, v. Shayla L. SHACKLEFORD, Devonna T. McDonald, Appellees-Petitioners.

No. 10A01-0907-PC-353.

Court of Appeals of Indiana.

March 10, 2010.

Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.

Juliet Yackel, J. Randal Wexler, Sha Hua, Sidley Austin LLP, Steven A. Drizin, Bluhm Legal Clinic, Chicago, IL, Attorneys for Appellees.

OPINION

BAKER, Chief Judge.

Appellant-respondent State of Indiana brings this interlocutory appeal challenging the post-conviction court's denial of its motion for change of judge. Specifically, the State contends that various comments made by the trial judge at a status conference regarding matters involving appellees-petitioners Shayla L. Shackleford and Devonna T. McDonald (collectively, the petitioners) revealed a lack of impartiality that precludes him from taking future action in the case.

We conclude that the post-conviction court's preliminary legal assessment of the case that was based upon the evidence in the record and the pleadings and memoranda filed in the case did not amount to personal bias or prejudice on the part of the judge that would render a fair judgment on the merits of the case impossible. Therefore, we find that the post-conviction court properly denied the State's motion for change of judge.

The judgment of the post-conviction court is affirmed, and we remand this cause for further proceedings consistent with this opinion.

FACTS

In 1997, fourteen-year-old Shackleford and fifteen-year-old McDonald were tried as adults and convicted by a jury of class A felony attempted murder, class A felony conspiracy to commit murder, and class A felony robbery. The convictions stemmed from the petitioners' luring of a pizza delivery man to a home so that they could steal his car and drive to Alabama. When the delivery man arrived, Shackleford and McDonald each stabbed him twice before running to his car and driving away.

On December 15, 1997, the petitioners were sentenced by Judge Jerome Jacobi and each received consecutive sentences of thirty years for attempted murder and thirty years for robbery, for a total sentence of sixty years. In a consolidated direct appeal, we affirmed the Petitioners' convictions and sentences in an unpublished memorandum decision.¹

On February 11, 2009, the Petitioners filed a petition for post-conviction relief, claiming ineffective assistance of appellate counsel for failing to: (1) raise a double jeopardy claim; (2) cite the petitioners' youth as a significant mitigating factor at the sentencing hearing; and (3) argue that the sentence constituted cruel and unusual punishment. The State filed its response and asserted the defenses of res judicata and waiver.

Because the regular presiding Judge, Vicki Carmichael, had represented McDonald on appeal, she disqualified herself on February 20, 2009, and appointed Senior Judge Steven M. Fleece to preside over the petitioners' post-conviction proceedings. On May 8, 2009, Judge Fleece conducted a non-recorded status conference in chambers with counsel for both Petitioners and the prosecuting attorney present. The purpose of the conference was "to examine potential areas of agreement relevant to the resolution of [the post-conviction relief] petitions." Appellant's App. p. 96.

Before the settlement conference began, Judge Fleece voluntarily disclosed to the parties a recent, brief conversation that he had had with Judge Jacobi. Judge Fleece reported that a chance encounter occurred when he saw Judge Jacobi at a deceased colleague's funeral visitation. According to Judge Fleece, Judge Jacobi told him that he would not be "personally offended" if the petitioners' sentences were modified, that he favored a modification of the sentence, and that he had expressed that view to the prosecutor. Although Judge Fleece stated that he felt obliged to report the conversation, he determined that the conversation would not affect his objectivity in the case.

Three days later, the State filed a motion for a change of judge, claiming that Judge Fleece had made various comments during the status conference that revealed a bias in favor of releasing the Petitioners. In particular, the State asserted that Judge Fleece had made the following improper remarks about the case:

A. The trial of this case was very "divisive" and the release of the defendants from prison was necessary to accomplish a "healing" in our community;

B. The Defendants have served enough time in prison and should be released, the only question is how we get there;

C. "Everybody" believed that the sentences in this case were too harsh and that the [Prosecutor] would receive no negative feedback from the community if he reached an agreement to reduce the sentences;

D. That he (Judge Fleece) had recently spoken at length with trial Judge Jerome Jacobi about the case and knew that Judge Jacobi would be called as a witness by Defendants during the post conviction proceedings, that Judge Jacobi had written a 20-page memorandum in favor of Defendants, and that he (Judge Fleece) had not only read the memorandum but also suggested to Defendants to have it made part of the record.

Appellant's App. p. 69. The State further alleged that

During this conference, Judge Fleece admitted that he had prejudged the case in favor of the defendants, in spite of the fact that the State of Indiana had not yet been permitted to present evidence or argument to rebut the allegations contained in the Petition for Post-Conviction Relief.

Id. at 70.

Thereafter, the Petitioners filed a joint response in opposition to the State's motion and asserted that Judge Fleece had only engaged in a "frank discussion" regarding the merits of the petitions and the conversation reflected the judge's "conclusion that some of Petitioners' arguments (but not others) had merit." Id. at 79.

Judge Fleece denied the State's motion for change of judge on June 11, 2009. In the ruling, Judge Fleece admitted making the statements offered by the State as evidence of bias and found that the State "correctly inferred that the judge [Judge Fleece] now views sentence modification as desirable." Id. at 99. Judge Fleece observed that this was just a "preliminary conclusion" that was based on the pleadings and undisputed facts of the case. Id. However, Judge Fleece determined that the State had "misstated, mischaracterized and taken out of context statements made by the judge in chambers." Id. at 96. Specifically, Judge Fleece found that

[T]he judge never said that he had read the sentencing judge's twenty page memo in favor of now reducing the sentence. The judge has not ... laid eyes on such memo, although he is ... aware of its existence.

If neither party intends to refer to or rely upon such memo, it will remain unseen by the Court in this proceeding.

The judge did of his own volition report to the parties a conversation with the sentencing judge prior to the conference. Contrary to the State's characterization, this was not a conversation "at length...." The conversation, of a few minutes at most, was entirely incidental to the purpose of both judges to pay respects to the family of a deceased county government colleague.

The State's allegation that the judge has "conducted a personal and independent investigation of the case by conversing at length with trial Judge Jacobi, a witness for the defense," is a gross mischaracterization of the facts. [The] Statement in Opposition [to the] Motion for Change of Judge establishes that Judge Jacobi will not be a witness. The meeting and conversation was brief, occurred by accident, and was promptly and voluntarily revealed.

For one judge to indicate to another that he would not be personally offended by a modification of his prior sentence, if the reviewing judge saw fit, is simply a matter of judicial courtesy emphasizing the discretion of the reviewing judge.

In any event, the sentiments expressed at the conference are not the result of any improper influence from any source but were rather the results of the judge's analysis of the legal arguments expressed in the pleadings and consideration of certain undisputed facts.

The Court was entitled to take [the] undisputed facts into account, as well as the pleadings filed before the conference in forming the preliminary analysis expressed to the parties at the conference. Prior to the conference the Court properly read and considered the fifty-three page ... petition for post conviction relief, with legal arguments and cited authorities as well as roughly two hundred pages of exhibits, including affidavits.... The State has mistaken legal analysis for prejudice and is seeking a change of judge because the court's preliminary analysis is in certain respect favorable to the Petitioners.

The State overlooks the fact ... that at the same conference the Court announced other results of its legal analysis unfavorable to the Petitioners. Specifically, the Court announced that Petitioners' argument that this Court should hold that the Indiana Supreme Court violated the U.S. Constitution in the handling of this case would not be fruitful at this level of review. Contrary to the State's recollection, the Court did not indicate that the only question is "how we get there." The question is if we get there. "There" represents a sentence modification.

The State has correctly inferred that the judge now views sentence modification as desirable. This is a preliminary conclusion not based on any bias or prejudice or outside influence but upon analysis of the pleadings and undisputed facts of the case. In particular the Court has noted the youth of the offenders at the time of the crime, the irrationality and immaturity evident in the nature of the offense....

The Court is highly aware of the limits of its discretion.... In the final analysis if the State is not inclined to...