                                                                                   FILED
                                                                            Oct 13 2017, 10:36 am

                                                                                   CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Thomas W. Vanes                                            Curtis T. Hill, Jr.
      Crown Point, Indiana                                       Attorney General of Indiana

                                                                 Michael Gene Worden
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Anthony T. Williams,                                       October 13, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 45A05-1702-CR-314
              v.                                                 Appeal from the Lake Superior
                                                                 Court
      State of Indiana,                                          The Honorable Salvador Vasquez,
      Appellee-Plaintiff.                                        Judge
                                                                 Trial Court Cause No.
                                                                 45G01-1312-MR-12



      Barnes, Judge.


                                              Case Summary
[1]   Anthony Williams appeals his convictions for murder, Class A felony

      attempted murder, and Class B felony carjacking. We affirm.



      Court of Appeals of Indiana | Opinion 45A05-1702-CR-314 | October 13, 2017                     Page 1 of 9
                                                       Issue
[2]   The sole issue is whether the trial court properly denied Williams’s motion for

      change of judge.


                                                       Facts
[3]   Early in the morning of December 2, 2013, Williams shot and killed his friend,

      Damian Reedus, in a van belonging to Aja Jester that Reedus was borrowing.

      Williams also shot Jester in the neck, but not fatally. Williams then pulled

      Jester out of the van, straddled her, pointed the gun at her face, and told her she

      had to die because she had seen his face. Although Williams pulled the trigger

      twice, the gun failed to fire. Jester then managed to run away, and Williams

      drove away in the van. Jester underwent surgery on her neck. She still suffers

      pain and psychological trauma, including post-traumatic stress disorder, from

      the shooting.


[4]   On December 5, 2013, the State charged Williams with multiple counts,

      including murder, Class A felony attempted murder, and Class B felony

      carjacking. On February 27, 2015, the State and Williams reached a plea

      agreement that Williams would plead guilty to murder and Class A felony

      attempted murder. The agreement expressly provided for a sentence of fifty-five

      years for murder and thirty years for attempted murder, with the sentences to be

      served concurrently. The trial court took the plea under advisement and

      ordered preparation of a presentence report.




      Court of Appeals of Indiana | Opinion 45A05-1702-CR-314 | October 13, 2017   Page 2 of 9
[5]   On April 1, 2015, the trial court held a sentencing hearing. Before accepting the

      plea, the trial court heard victim impact testimony from Jester. Jester expressed

      displeasure with the plea agreement, stating that she did not believe a term of

      fifty-five years was long enough for Williams. At the conclusion of Jester’s

      testimony, the trial court stated:


              I’m not comfortable giving Mr. Williams the pass on shooting
              you. Because, as I see it, that’s exactly what’s taking place here.
              I would not reject the plea on the 55 years for the charge of
              murder, but I’m not comfortable on the 30 years concurrent term,
              because that gives Mr. Williams essentially a pass for shooting
              you. If you are also not comfortable with the plea, the plea is
              rejected and this matter goes to trial.


      App. Vol. IV p. 205. After defense counsel made a record objecting to rejection

      of the plea, the trial court further stated:


              And, to be perfectly clear, it’s the concurrent nature of the
              sentences that—that rejects the plea. I’m not in any way
              suggesting that I would not accept a negotiated term in the
              future. I will suggest that there’s no chance that I would accept a
              negotiated term that would give a concurrent term. That’s what
              I’m—that’s why the plea is rejected. I came into this hearing
              uncomfortable with the plea, in any event, as I already indicated.


      Id. at 209.


[6]   Williams’s case proceeded to jury trial on April 4-13, 2016. The same trial

      judge who had rejected Williams’s guilty plea presided over this trial. Williams

      did not move for a change of judge before or during this trial. It ended with a

      deadlocked jury and a mistrial.
      Court of Appeals of Indiana | Opinion 45A05-1702-CR-314 | October 13, 2017    Page 3 of 9
[7]   On April 21, 2016, a new trial was scheduled to begin on October 31, 2016,

      which was later continued to November 29, 2016. The same judge still was

      presiding over the case. On September 8, 2016, Williams filed a motion for

      change of judge. Among the claimed grounds for such a change was the judge’s

      rejection of Williams’s plea agreement.1 The trial court denied Williams’s

      motion. After the second jury trial, Williams was found guilty as charged. The

      trial court imposed sentences of sixty-two years for murder, forty-three years for

      attempted murder, and fifteen years for carjacking, to run consecutively for an

      aggregate term of 120 years. Williams now appeals.


                                                       Analysis
[8]   Williams’s sole contention on appeal is that the trial court judge erred in

      denying his motion for change of judge. Indiana Criminal Rule 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.




      1
          The motion alleged other grounds as well, but this is the only basis about which Williams argues on appeal.


      Court of Appeals of Indiana | Opinion 45A05-1702-CR-314 | October 13, 2017                          Page 4 of 9
      A decision on whether to grant a motion for change of judge under this rule is

      reviewed for clear error. Lehman v. State, 55 N.E.3d 863, 866 (Ind. Ct. App.

      2016) (quoting Sturgeon v. State, 719 N.E.2d 1173, 1182 (Ind. 1999)), trans.

      denied. “Reversal will require a showing which leaves us with a definite and

      firm conviction that a mistake has been made.” Sturgeon, 719 N.E.2d at 1182.


[9]   Aside from the merits of Williams’s motion for change of judge, it is well-

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

      of Criminal Rule 12 have not been followed.” Flowers v. State, 738 N.E.2d

      1051, 1059 (Ind. 2000). One of those mandates is the time period for filing such

      a motion. Id. at 1059-60. Specifically, Criminal Rule 12(D) states:


              In any criminal action, no change of judge or change of venue
              from the county shall be granted except within the time herein
              provided.


              (1) Thirty Day Rule. An application for a change of judge or
              change of venue from the county shall be filed within thirty (30)
              days of the initial hearing. Provided, that where a cause is
              remanded for a new trial by the court on appeal, such application
              must be filed not later than thirty (30) days after the defendant
              first appears in person before the trial court following remand.


              (2) Subsequently Discovered Grounds. If the applicant first
              obtains knowledge of the cause for change of venue from the
              judge or from the county after the time above limited, the
              applicant may file the application, which shall be verified by the
              party specifically alleging when the cause was first discovered,
              how it was discovered, the facts showing the cause for a change,
              and why such cause could not have been discovered before by the
              exercise of due diligence. Any opposing party shall have the

      Court of Appeals of Indiana | Opinion 45A05-1702-CR-314 | October 13, 2017   Page 5 of 9
               right to file counter-affidavits on such issue within ten (10) days,
               and after a hearing on the motion, the ruling of the court may be
               reviewed only for abuse of discretion.


[10]   Here, not only was Williams’s motion filed well past the initial thirty-day time

       limit, it was not filed for nearly a year-and-a-half after the trial court rejected his

       plea agreement, which is now the sole stated basis upon which Williams claims

       the motion should have been granted. In fact, Williams acquiesced to this very

       same judge presiding over his first trial and did not object to that judge’s

       continued presiding over his case until the month before his second scheduled

       trial date—several months after it was scheduled. Williams does not allege any

       “subsequently discovered grounds” for filing his motion at such a late date.

       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. See

       Flowers, 738 N.E.2d at 1059-60.


[11]   To the extent Williams implies the trial judge should have nevertheless sua

       sponte recused himself from his case, we disagree. Williams cites Indiana Rule

       of Judicial Conduct 2.11, which states in part, “A judge shall disqualify himself

       or herself in any proceeding in which the judge’s impartiality might reasonably

       be questioned . . . .” “The law presumes that a judge is unbiased and

       unprejudiced in the matters that come before the judge.” Flowers, 738 N.E.2d at

       1060. A judge has discretion to recuse sua sponte if any semblance of judicial

       bias or impropriety comes to the judge’s attention, and must recuse sua sponte

       if he or she has an actual bias. Id. “The record must show actual bias and


       Court of Appeals of Indiana | Opinion 45A05-1702-CR-314 | October 13, 2017     Page 6 of 9
       prejudice against the defendant before a conviction will be reversed on the

       ground that the trial judge should have been so disqualified.” Id. As a general

       rule, prior adverse rulings by a judge against a party are not enough by

       themselves to show bias or prejudice against that party. Voss v. State, 856

       N.E.2d 1211, 1217 (Ind. 2006). As Williams recognizes, a trial court’s rejection

       of a plea agreement also is not enough by itself to warrant a finding that the

       judge is biased or prejudiced against the defendant. See Haynes v. State, 656

       N.E.2d 505, 508 (Ind. Ct. App. 1995); Hoover v. State, 582 N.E.2d 403, 410 (Ind.

       Ct. App. 1991) adopted by Hoover v. State, 589 N.E.2d 243 (Ind. 1992).


[12]   Here, when he rejected the plea agreement, the judge stated his disagreement

       that there should be concurrent sentences for murder and attempted murder.

       The judge made this statement after Jester made her victim impact statement,

       but also stated he was “uncomfortable” with the plea even before that. App.

       Vol. IV p. 209. In Ellis v. State, 744 N.E.2d 425 (Ind. 2001), our supreme court

       addressed the propriety of a trial court’s rejection of a plea agreement under

       similar circumstances. In that case, the defendant agreed to plead guilty to four

       counts of rape for separate incidents. The plea agreement provided that all the

       sentences would be served concurrently. However, after hearing the victim

       impact testimony of one of the victims, the trial court rejected the plea

       agreement and said that it would accept a plea agreement only if it provided for

       consecutive sentences with respect to that victim. Our supreme court found no

       impropriety in the trial court’s action and held that it did not render the

       defendant’s subsequent guilty plea involuntary. Ellis, 744 N.E.2d at 429-30.


       Court of Appeals of Indiana | Opinion 45A05-1702-CR-314 | October 13, 2017    Page 7 of 9
[13]   The Ellis opinion did not directly analyze whether the trial judge’s rejection of

       the original plea agreement for being too lenient indicated bias or prejudice on

       the judge’s part. It did observe, however:


               [A] court may offer guidance as to what sentence it might find
               marginally acceptable, taking into account a presentence report
               prepared by the probation department. The message must not, of
               course, carry any express or implied threat that the defendant
               may be denied a fair trial or punished by a severe sentence if he
               or she declines to plead guilty.


       Ellis, 744 N.E.2d at 430. We do not believe the judge here crossed the line into

       threatening Williams with an unfair trial or severe sentence when he rejected

       the plea agreement.2 Rather, he provided guidance as to what kind of plea he

       would find acceptable. In doing so, the judge acted properly and did not

       demonstrate actual bias or prejudice against Williams. As such, the judge was

       under no mandate to sua sponte recuse himself from the case.


                                                   Conclusion
[14]   The trial court did not clearly err in denying Williams’s motion for change of

       judge. We affirm his convictions.


[15]   Affirmed.




       2
        The trial judge did end up imposing what might be described as a severe sentence against Williams, but he
       did not threaten Williams with such a sentence when he rejected the plea agreement.

       Court of Appeals of Indiana | Opinion 45A05-1702-CR-314 | October 13, 2017                      Page 8 of 9
May, J., and Bradford, J., concur.




Court of Appeals of Indiana | Opinion 45A05-1702-CR-314 | October 13, 2017   Page 9 of 9
