MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                  Apr 13 2020, 10:19 am

court except for the purpose of establishing                                     CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jeffery Haupt                                             Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana

                                                          Sierra A. Murray
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Edward Luther, Jr.,                                April 13, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2542
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Margot F. Reagan,
Appellee-Plaintiff                                        Judge
                                                          The Honorable Julie Verheye,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          71D04-1803-CM-948



Altice, Judge.


                                          Case Summary

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020                      Page 1 of 5
[1]   Robert Edward Luther, Jr. was convicted, following a bench trial, of Class A

      misdemeanor conversion. Luther appeals from the denial of his oral motion for

      the recusal of the trial judge, who was his lawyer in two unrelated cases about

      twenty years prior.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On March 7, 2018, the State charged Luther with Class A misdemeanor

      conversion, alleging that he had knowingly or intentionally exerted

      unauthorized control over property at a Target store. After continuances

      related to Luther’s failure to appear on two separate occasions, resulting in the

      issuance of warrants, his bench trial commenced on October 10, 2019.


[4]   At the beginning of the trial, Luther’s counsel made an oral motion for the

      sitting magistrate to recuse herself due to her prior attorney-client relationship

      with Luther “on two cases back in 1999 and 2000.” Transcript at 2. The

      magistrate responded that she had “absolutely no recollection” of the cases and

      did not even remember Luther. Id. The magistrate then indicated, “I don’t feel

      the need to [recuse].” Id. Defense counsel responded, “Well then, we’ll go

      forward then.” Id.


[5]   Following the presentation of evidence, the trial court found Luther guilty as

      charged and sentenced him to sixty days to be served through St. Joseph

      County Community Corrections. Luther now appeals.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020   Page 2 of 5
                                          Discussion & Decision


[6]   Luther claims that he was “denied a fair and impartial trial when the trial court

      failed to properly address whether the trial court magistrate’s prior

      representation of him would cause reasonable minds to be able to determine

      whether her impartiality would be impaired.” Appellant’s Brief at 7. His

      appellate argument is improperly focused on the Indiana Code of Judicial

      Conduct (the Code) and disciplinary actions rather than reversible error.


[7]   As our Supreme Court has recognized, it is “not reversible error, absent a

      showing of prejudice, for a judge to refuse to recuse [her]self in a criminal case

      when [s]he had previously represented the defendant in an unrelated criminal

      matter.” Matter of Edwards, 694 N.E.2d 701, 710 (Ind. 1998) (citing Hammond v.

      State, 594 N.E.2d 509, 514 (Ind. App. 1992), trans. denied); see also Smith v. State,

      477 N.E.2d 857, 864 (Ind. 1985) (“The record must show actual bias and

      prejudice against the defendant before a conviction will be reversed on the

      ground that the trial judge should have been so disqualified.”). “Whether

      presiding over the case might nevertheless be violative of the Code of Judicial

      Conduct is, however, a related but separate question from whether it might

      constitute reversible error.” Matter of Edwards, 694 N.E.2d at 710. Here, we are

      tasked with addressing only the former question.


[8]   “The law presumes that a judge is unbiased and unprejudiced.” Garland v.

      State, 788 N.E.2d 425, 433 (Ind. 2003). “Ordinarily in a criminal case, parties

      seeking to overcome the presumption of judicial impartiality must move for a


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020   Page 3 of 5
       change of judge under Rule 12 of the Indiana Rules of Criminal Procedure.”

       Mathews v. State, 64 N.E.3d 1250, 1253 (Ind. Ct. App. 2016), trans. denied. This

       rule mandates specific timelines and procedures when moving for a change of

       judge. 1 See Flowers v. State, 738 N.E.2d 1051, 1059 (Ind. 2000) (“The law is

       settled that a defendant is not entitled to a change of judge where the mandates

       of Criminal Rule 12 have not been followed.”).


[9]    Luther does not, and cannot, contend that he complied with the mandates of

       Crim. R. 12. Thus, he was clearly not entitled to a change of judge in this case.

       See Flowers, 738 N.E.2d at 1059.


[10]   Moreover, we reject Luther’s argument that he is nonetheless entitled to relief

       because the Code required the magistrate to recuse herself. Rule 2.11(A) of the

       Code provides that “[a] judge shall disqualify himself or herself in any

       proceeding in which the judge’s impartiality might reasonably be questioned[.]”

       Luther does not allege actual bias or prejudice against him on the magistrate’s

       part, and the record reflects no such bias or prejudice. Rather, he argues that

       her impartiality might have been reasonably questioned considering her former




       1
           Crim. R. 12(B) provides:

                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.
       Further, pursuant to Crim. R. 12(D), 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.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020                          Page 4 of 5
       representation of him had the magistrate “t[aken] the time to look into possible

       issues that may impact the parties’ arguments towards disqualification.”

       Appellant’s Brief at 9. The proposition underlying Luther’s arguments has been

       directly rejected by this court in Mathews, where we held that the Code does not

       supply a freestanding mechanism for relief, independent of a properly brought

       Crim. R. 12 motion. Mathews, 64 N.E.3d at 1255 (“It is undeniable that the

       Code fixes a judge’s obligations. We hold, however, that those obligations do

       not create freestanding rights of enforcement in private parties.”). Accordingly,

       Luther is not entitled to consideration of his freestanding claim for recusal

       under the Code. See id. at 1256.


[11]   Judgment affirmed.


       Bailey, J. and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020   Page 5 of 5
