MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Dec 13 2018, 10:47 am
court except for the purpose of establishing
                                                                                CLERK
the defense of res judicata, collateral                                     Indiana Supreme Court
                                                                               Court of Appeals
estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Stephen Anderson,                                       December 13, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1322
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Helen W. Marchal,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable Stanley Kroh,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G15-1701-F6-3735



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1322 | December 13, 2018                   Page 1 of 9
                               STATEMENT OF THE CASE
[1]   Appellant-Defendant, Stephen Anderson (Anderson), appeals the revocation of

      his commitment in Community Corrections and the imposition of his

      previously-suspended sentence.


[2]   We affirm.


                                                   ISSUE
[3]   Anderson presents two issues on appeal, which we restate as the following

      single issue: Whether the trial court revealed bias and lack of impartiality at

      Anderson’s revocation hearing.


                      FACTS AND PROCEDURAL HISTORY
[4]   On January 28, 2017, the State filed an Information, charging Anderson with

      Count I, residential entry, a Level 6 felony; Count II, possession of marijuana, a

      Class A misdemeanor; Count III, criminal mischief, a Class B misdemeanor;

      and Count IV, possession of paraphernalia, a Class C misdemeanor. On March

      26, 2018, by agreement with the State, Anderson pleaded guilty to Counts I and

      III, in exchange for a dismissal of the remaining charges. The same day, the

      trial court sentenced Anderson to concurrent terms of two years on each Count

      to be served in Community Corrections.


[5]   On May 7, 2018, Community Corrections filed a notice of violation, alleging

      that Anderson had repeatedly violated the “Duvall Residential Center (DRC)




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1322 | December 13, 2018   Page 2 of 9
      rules” by being disorderly at the center and for possessing “a controlled or

      illegal substance” on at least three occasions. (Appellant’s App. Vol. II, p. 68).


[6]   On May 16, 2018, the trial court conducted a revocation hearing. At the

      hearing, Anderson admitted to possessing illegal drugs, contrary to DRC’s

      polices. Anderson then made the following request, “I wouldn’t mind going

      back to Duval [sic]. I mean it’s fine with me[,] but I was really hoping for like []

      house arrest.” (Transcript p. 8). Community Corrections maintained that

      Anderson’s placement should be revoked since Anderson was “a security

      threat.” (Tr. p. 12). When the trial court asked Community Corrections to

      clarify that statement, Community Corrections stated that Anderson was a

      “security risk because he ha[d] been caught” possessing drugs “on three

      different occasions.” (Tr. p. 13). Following that argument, the trial court

      ordered Anderson to serve 60 days in jail, and placed Anderson on “strict

      compliance,” i.e., further violations would result in the revocation of his

      placement. (Tr. p. 13).


[7]   While respectfully recognizing the trial court’s ruling, Community Corrections

      argued that they had tried to sanction Anderson “in-house,” but had been

      unsuccessful. (Tr. p. 13). Community Corrections continued to argue, “we

      have had difficulty controlling prohibited substances from coming into the

      [DRC] . . . and we have had people that are [overdosing] over there . . . [a]nd

      we have had to call EMS several times . . . We have had to give residents

      Narcan because of [them] smoking this stuff and it’s becoming a risk in the

      facility.” (Tr. p. 13).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1322 | December 13, 2018   Page 3 of 9
[8]    Overlooking Community Corrections’ plea of help, the trial court proceeded to

       admonish Anderson that any violation would result in the termination of his

       placement. Instead of listening to the trial court or asking for permission to talk

       with his attorney, Anderson immediately talked to his attorney. At that point,

       the trial court reconsidered its prior ruling, revoked Anderson’s placement in

       Community Corrections, and ordered Anderson to serve his previously-

       suspended sentence of “295 actual days” in jail. (Tr. p. 14).


[9]    Anderson now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
[10]   Anderson argues that the judge showed bias toward him at his revocation

       hearing. When the impartiality of a trial judge is challenged on appeal, we will

       presume that the judge is unbiased and unprejudiced. Smith v. State, 770

       N.E.2d 818, 823 (Ind. 2002). “Such bias and prejudice exist only where there is

       an undisputed claim or where the judge expressed an opinion of the controversy

       over which the judge was presiding.” Id. Adverse rulings are not sufficient of

       themselves to establish bias or prejudice. Resnover v. State, 507 N.E.2d 1382,

       1391 (Ind. 1987). The mere assertion of bias or prejudice is also not enough;

       rather, it must be established from a judge’s actual conduct that bias or

       prejudice “place[d] the defendant in jeopardy.” Smith, 770 N.E.2d at 823.


[11]   In assessing a trial judge’s partiality, we examine the judge’s actions and

       demeanor while recognizing the need for latitude to run the courtroom and

       maintain discipline and control of the trial. Everling v. State, 929 N.E.2d 1281,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1322 | December 13, 2018   Page 4 of 9
       1288 (Ind. 2010). “Even where the court’s remarks display a degree of

       impatience, if in the context of a particular trial they do not impart an

       appearance of partiality, they may be permissible to promote an orderly

       progression of events at trial.” Id.


[12]   To preserve a claim of judicial bias, a party must raise the issue at the trial level.

       Garrett v. State, 737 N.E.2d 388, 391 (Ind. 2000). Anderson readily concedes

       that he did not object at his revocation hearing, and he seeks a review of his

       claim under the fundamental error doctrine. See Ruggieri v. State, 804 N.E.2d

       859, 863 (Ind. Ct. App. 2004). The doctrine of fundamental error provides “an

       exception to the general rule that failure to object at trial constitutes procedural

       default precluding consideration of the issue on appeal.” Halliburton v. State, 1

       N.E.3d 670, 678 (Ind. 2013). This “exception is extremely narrow and applies

       only when the error constitutes a blatant violation of basic principles, the harm

       or potential for harm is substantial, and the resulting error denies the defendant

       fundamental due process. Id. The error claimed must either make a fair trial

       impossible or constitute clearly blatant violations of basic and elementary

       principles of due process. Id.


[13]   In support of his claim, Anderson argues that the trial court was punishing him

       for conferring with his attorney, and he argues that the “trial court inserted itself

       into the proceedings—whether because it felt disrespected or because it was in a

       hurry to get through the calendar or for some other reason. Regardless of the

       reason, the trial court did not act impartially.” (Appellant’s Br. p. 12).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1322 | December 13, 2018   Page 5 of 9
[14]   Throughout the revocation hearing, Community Corrections maintained that

       Anderson’s placement should be revoked since he could not adhere to the

       policies. The trial court disregarded Community Corrections’ request and

       sanctioned Anderson to serve 60 days in jail and ordered him to return to the

       DRC. However, the trial court placed Anderson on strict compliance upon his

       return to the facility. Following that ruling, Community Corrections

       respectfully argued that the only reason it was seeking to revoke Anderson’s

       placement was due to the fact that Anderson had smuggled drugs into the

       facility which inherently posed a risk to other residents.


[15]   The trial court disregarded Community Corrections’ argument, and proceeded

       to admonish Anderson with further instructions: “You can’t have any other

       previous problems. I also think Community Corrections is not going to try to

       work this out with you administratively.” (Tr. p. 14). While issuing its order,

       the trial court saw Anderson talking with his lawyer and being inattentive. At

       that moment, the trial court changed its prior ruling and stated


               You don’t seem to have any concern about anything the [c]ourt
               is saying so I think it is probably better that your placement there
               be revoked[,] and you finish this sentence in [] jail Mr. Anderson.
               So, your 730-day sentence will be served in [] jail. You do have
               70 actual days credit plus 70 day[s] earned and that is 70 actual
               days plus 70 [days] earned. So, you will finish this sentence in []
               jail Mr. Anderson. Your placement at Community Corrections
               is revoked. And so, you have 295 actual days yet to serve. This
               is the sentence the [c]ourt determined after considering evidence
               and argument[s], so you do have the right to appeal the [c]ourt’s
               decision . . . Do you understand your appeal rights?


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1322 | December 13, 2018   Page 6 of 9
       (Tr. p. 14). Anderson did not respond to the trial court’s question. The

       following exchange between the trial court and Anderson’s attorney then

       occurred:


               TRIAL COURT: I don’t believe this. [] [I]s there some reason
               that you seem to think that Mr. Anderson has to have a
               conversation with you and not listen to what the [c]ourt has to
               say? I don’t understand what is happening here. We are trying
               to get through this calendar this morning.


               ANDERSON’S ATTORNEY: Your Honor. . .


               TRIAL COURT: I am talking but [Anderson] and [you] don’t
               seem to have any concern about what the [c]ourt is saying at all.


               ANDERSON’S ATTORNEY: Your Honor. Mr. Anderson was
               indicating to me that he would, after the [c]ourt gave him the
               option to go back to [DRC] that he would prefer to do his time in
               custody.


               TRIAL COURT: All right. That seems to be the best thing.


               ANDERSON’S ATTORNEY: I am trying to explain to him
               what that would mean.


               TRIAL COURT: All right well that is what is happening Mr.
               Anderson . . .


       (Tr. pp. 14-15).


[16]   In examining the trial court’s actions and demeanor throughout the revocation

       proceedings, we cannot say that Anderson’s right to a fair hearing was

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1322 | December 13, 2018   Page 7 of 9
       impaired. Contrary to Anderson’s assertion that the trial court was punishing

       him for speaking with his attorney, at no point did Anderson request for a

       moment to confer with his attorney. Anderson’s behavior at the revocation

       hearing showed that he was unwilling to pay attention, which was relevant to

       the question of whether Anderson would adhere to a strict compliance policy

       upon his return to the DRC. Also, we find that the trial court was not cross

       with Anderson for delaying the proceedings that morning, rather, the trial

       court’s comments reflect on its responsibility to maintain discipline and control

       of the proceedings, even if it’s remarks displayed a degree of impatience.

       Moreover, we find that any allegation that the trial court was acting out of

       anger by issuing an adverse ruling is belied by the fact that Anderson was not

       keen on returning to the DRC since he preferred home detention. Also, the

       trial court’s decision came after Community Corrections’ arguments about

       overdoses in its facility.


[17]   In light of the foregoing, we conclude that Anderson has failed to demonstrate

       error, let alone a fundamental error based on his allegation, that the judge who

       oversaw his revocation hearing was biased against him.


                                             CONCLUSION
[18]   Based on the above, we conclude that Anderson has failed to demonstrate error,

       let alone a fundamental error based on his allegation, that he was prejudiced by

       the judge who conducted his revocation hearing.


[19]   Affirmed.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1322 | December 13, 2018   Page 8 of 9
[20]   Vaidik, C. J. and Kirsch, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1322 | December 13, 2018   Page 9 of 9
