Thakkar v. State
| Decision Date | 20 December 1994 |
| Docket Number | No. 48A02-9310-CR-530,48A02-9310-CR-530 |
| Citation | 644 N.E.2d 609 |
| Parties | Pravin D. THAKKAR, Appellant-Defendant, v. STATE of Indiana, Appellee. |
| Court | Indiana Appellate Court |
Jeffrey A. Lockwood, Schuyler, Eisele & Lockwood, Anderson, James H. Voyles, Dennis E. Zahn, Indianapolis, for appellant.
Pamela Carter, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
Dr. Pravin D. Thakkar (Thakkar) appeals his sentence upon convictions of two counts of Performance of an Illegal Abortion, class C felonies; two counts of Battery, class C felonies; two counts of Criminal Recklessness, class D felonies; and one count of Attempted Illegal Abortion, a class C felony. He presents two issues for our review:
I. Whether the trial court erred in denying Thakkar's motion for change of judge prior to re-sentencing; and
II. whether the trial judge erred in failing to articulate that he evaluated and balanced the mitigating circumstances against the aggravating circumstances?
Because we deem the first issue dispositive, we confine our discussion to that issue.
On October 11, 1991, Thakkar was convicted of the foregoing charges, as well as a third count of Performance of an Illegal Abortion. The trial judge found that both Criminal Recklessness convictions had merged with the respective Battery convictions and imposed no sentence upon the Criminal Recklessness convictions. He imposed the maximum sentence upon all of the class C felonies: four years for each Illegal Abortion conviction and four years for each Battery conviction. The trial judge enhanced all of these maximum sentences by four years, but suspended the enhanced portion of each sentence.
Upon appeal, the third count of Performance of an Illegal Abortion was deemed barred by the statute of limitations and overturned. Thakkar v. State (1993) 5th Dist.Ind.App., 613 N.E.2d 453. The court, sua sponte, determined that the judge's sentencing statement did not specify the aggravating circumstances supporting the enhanced sentence and remanded for re-sentencing. Id. at 461. After remand, but before the re-sentencing hearing, Thakkar moved for a change of judge alleging that the trial judge was biased and prejudiced against him. The motion was denied. Thakkar claims error.
We reverse.
I. Change of Judge
It is within the discretion of the trial court to grant a change of judge at the sentencing stage of a criminal prosecution. Johnson v. State (1985) Ind., 472 N.E.2d 892, 911. A reviewing court may reverse a denial of a change only for an abuse of that discretion. Johnson, supra. In 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 and (1991) 500 U.S. 948, 111 S.Ct. 2250, 114 L.Ed.2d 491, the court held that reversal will lie for bias and prejudice where the trial judge has expressed an opinion upon the merits of the controversy before him.
Thakkar states that the trial judge attended the oral argument on the first appeal, following which he publicly commented that Thakkar had received a fair trial, that the evidence was devastating, that no one claimed during oral argument that Thakkar was not guilty, and that it was common for lawyers to blame the misfortunes of their clients upon the trial judge. 1 Thakkar claims that the trial judge commented upon the merits of the appeal through these remarks, and that such bias and prejudice would have a negative impact upon him at sentencing. Although the remarks made to members of the media following appellate oral argument did not specifically relate to the sentencing hearing to be held, to the possible sentences which might be imposed, or to the factors which would be considered in reaching that determination, the remarks stray far afield from the objectivity and impartiality which trial courts are obligated to display. See Indiana Code of Judicial Conduct, Canons 2 and 3. The comments were such as to clearly bring into question the trial court's objectivity in the matter. They carried an unmistakable coloring of hostility toward the defendant's exercise of his right of appeal. 2
We acknowledge that in Yager v. State (1982) Ind., 437 N.E.2d 454, our Supreme Court indicated that inappropriate and seemingly biased remarks which take place after trial but before sentencing do not require reversal. In Yager, however, the court placed that determination in perspective when it observed that the defendant had shown no prejudice because he "received the minimum sentence he could have received on each count on which he was found guilty." 437 N.E.2d at 462.
The situation before us is quite different. Upon each class C felony count, Thakkar received enhanced sentences for eight years, the maximum term permitted by statute. I.C. 35-50-2-6 (Burns Code Ed.1994). That four years of each sentence was suspended does not change the fact that the sentences were enhanced to the maximum...
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