MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Mar 27 2020, 7:30 am
regarded as precedent or cited before any
                                                                     CLERK
court except for the purpose of establishing                     Indiana Supreme Court
                                                                    Court of Appeals
the defense of res judicata, collateral                               and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bryan M. Truitt                                          Curtis T. Hill, Jr.
Truitt Law Office                                        Attorney General
Valparaiso, Indiana
                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

John Wesley Howell,                                      March 27, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1633
        v.                                               Appeal from the
                                                         LaPorte Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff                                       Michael S. Bergerson, Judge
                                                         Trial Court Cause No.
                                                         46D01-1809-F4-986



Vaidik, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1633 | March 27, 2020           Page 1 of 6
                                          Case Summary
[1]   John Wesley Howell appeals his conviction and five-year sentence for dealing

      in cocaine, arguing that the trial court erred by denying his motion for change

      of judge and that the sentence is inappropriate. We affirm.



                            Facts and Procedural History
[2]   In August 2018, the LaPorte County Drug Task Force conducted a controlled

      buy of a half-gram of crack cocaine from Howell. The State charged Howell

      with dealing in cocaine as a Level 5 felony. The case was assigned to Judge

      Michael Bergerson. On May 16, 2019, a few days before trial was to begin,

      Howell filed a motion for change of judge under Indiana Rule of Criminal

      Procedure 12(B), which provides that a party in a felony or misdemeanor case

      “may request a change of judge for bias or prejudice.” He argued that Judge

      Bergerson was biased because he was the prosecutor in five previous criminal

      cases against Howell, including a 2010-2011 voluntary-manslaughter case in

      which Howell was found not guilty. Judge Bergerson denied the motion, the

      case proceeded to trial, and the jury found Howell guilty as charged. Citing

      Howell’s criminal history—which stretches back to 1984 and includes four

      felony convictions, ten misdemeanor convictions, and at least twenty cases—

      Judge Bergerson imposed a sentence of five years in prison.


[3]   Howell now appeals.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1633 | March 27, 2020   Page 2 of 6
                                   Discussion and Decision
[4]   Howell first contends that the trial court should have granted his motion for

      change of judge. As the State notes, however, Howell’s motion was untimely.

      Subject to exceptions not applicable here, a request for a change of judge under

      Criminal Rule 12 “shall be filed within thirty (30) days of the initial hearing.”

      Ind. Crim. Rule 12(D)(1). Howell’s initial hearing was held on September 11,

      2018, and he filed his motion more than eight months later, in May 2019.1 On

      this basis alone, Howell’s motion was properly denied. See Williams v. State, 86

      N.E.3d 185, 188 (Ind. Ct. App. 2017) (“Williams’s failure to adhere to the time

      limits of Criminal Rule 12 necessarily means the trial court properly denied his

      motion for change of judge.”), trans. denied.


[5]   But even if we were to disregard the untimeliness of the motion, we would not

      reverse. Howell’s argument focuses largely on the fact that, eight years before

      this case went to trial, he was found not guilty in the voluntary-manslaughter

      case in which Judge Bergerson was the prosecutor. He asserts that the loss in

      that case gave Judge Bergerson a personal stake in the outcome of this case—

      that this case was essentially a “rematch”:


               [I]t is human nature that trial law is a competition (once it
               proceeds to trial) not unlike sports. Human competitive nature
               compels a “do anything to win”, albeit within the rules, capacity.
               Re-matches are chances at redemption, with similar vigor. It is



      1
       At a hearing in December 2018, Howell asked Judge Bergerson to “step down” because of the earlier
      prosecutions. Tr. Vol. II p. 12. That request was also made more than thirty days after the initial hearing.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1633 | March 27, 2020                      Page 3 of 6
               an impossible task for a human to put aside the sting of a trial
               loss.


      Appellant’s Br. p. 13. Not surprisingly, Howell acknowledges that he “cannot

      find a case” that supports this untenable theory. Id.


[6]   Howell also notes that “a prosecuting attorney (especially where the case

      proceeds to trial) learns a multitude of inadmissible information as to a

      defendant’s character, uncharged conduct, ancillary activities and law

      enforcement unsubstantiated views as to the defendant.” Id. However, he does

      not identify any such information that Judge Bergerson has about him. And

      even if Judge Bergerson did have such information, Howell has not cited any

      authority for the proposition that information of this sort requires a change of

      judge.


[7]   As the State notes, “The law presumes that a judge is unbiased and

      unprejudiced,” Timberlake v. State, 753 N.E.2d 591, 610 (Ind. 2001), reh’g denied,

      and the party claiming bias has the burden of rebutting that presumption, Smith

      v. State, 770 N.E.2d 818, 823 (Ind. 2002). Howell has not done so here. He

      does not assert that Judge Bergerson had any personal knowledge of the facts of

      this case or said anything exhibiting bias or made any trial rulings based on

      bias. Howell does seem to suggest that the imposition of an above-advisory

      sentence (one year shy of the statutory maximum) is proof of bias, but as we

      discuss next, there is nothing inappropriate about that sentence given his

      extensive criminal history.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1633 | March 27, 2020   Page 4 of 6
[8]    For all these reasons, we affirm the denial of Howell’s motion for change of

       judge.


[9]    Howell asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B),

       which provides that an appellate court “may revise a sentence authorized by

       statute if, after due consideration of the trial court's decision, the Court finds

       that the sentence is inappropriate in light of the nature of the offense and the

       character of the offender.” “Whether a sentence is inappropriate ultimately

       turns on the culpability of the defendant, the severity of the crime, the damage

       done to others, and a myriad of other factors that come to light in a given case.”

       Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the

       judgment of trial courts in sentencing matters, defendants have the burden of

       persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d

       1041, 1044-45 (Ind. Ct. App. 2016).


[10]   Convicted of a Level 5 felony, Howell faced a sentencing range of one to six

       years, with an advisory sentence of three years. Ind. Code § 35-50-2-6. The

       trial court imposed an above-advisory sentence of five years. Howell argues

       that this sentence is inappropriate because he sold only a small amount of drugs

       and because of “his lack of education, his absence of a father, his disability and

       inability to work, his poor physical health and his absence of social relations.”

       Appellant’s Br. p. 16 (citations omitted). We agree that there was nothing

       egregious about Howell’s dealing offense—he sold a half-gram of crack cocaine

       in a controlled buy. But even if we accept Howell’s claims about his personal

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1633 | March 27, 2020   Page 5 of 6
       and medical background, his criminal history supports his above-advisory

       sentence. He had fourteen convictions before this case—four felonies and ten

       misdemeanors—including Class C felony possession of cocaine and Class D

       felony possession of cocaine. Howell has failed to persuade us that his sentence

       is inappropriate.


[11]   Affirmed.


       May, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1633 | March 27, 2020   Page 6 of 6
