MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                        Feb 15 2018, 9:56 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        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
Vincent L. Scott                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Deshawn Hutcherson,                                      February 15, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         29A04-1708-CR-1698
        v.                                               Appeal from the Hamilton
                                                         Superior Court
State of Indiana,                                        The Honorable Steven R. Nation,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         29D01-1606-F6-4508



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A04-1708-CR-1698 | February 15, 2018        Page 1 of 7
                                STATEMENT OF THE CASE
[1]   Appellant-Plaintiff, Deshawn Hutcherson (Hutcherson), appeals his conviction

      for failure to return to lawful custody, a Level 6 felony, Ind. Code § 35-44.1-3-

      4(c).


[2]   We affirm.


                                                    ISSUE
[3]   Hutcherson presents us with one issue on appeal, which we restate as: Whether

      the trial court judge committed fundamental error by not sua sponte recusing

      himself from Hutcherson’s bench trial due to Hutcherson’s pre-trial statements

      regarding a vacated plea agreement.


                      FACTS AND PROCEDURAL HISTORY
[4]   In January 2016, Hutcherson was serving a sentence in residential placement in

      Hamilton County community corrections. Pursuant to the terms of his

      placement, Hutcherson was permitted to leave the facility for approved

      employment. On June 9, 2016, Hutcherson left the facility for work but failed

      to return as scheduled. Hutcherson was located by police officers on July 19,

      2016, and terminated from the program for failure to return.


[5]   On June 14, 2016, the State filed an Information, charging Hutcherson with

      failure to return to lawful detention, a Level 6 felony. On January 12, 2017,

      Hutcherson plead guilty as charged pursuant to a plea agreement, and the trial

      court took the guilty plea under advisement until the sentencing hearing. At a

      Court of Appeals of Indiana | Memorandum Decision 29A04-1708-CR-1698 | February 15, 2018   Page 2 of 7
      scheduled sentencing hearing, on April 6, 2017, the parties disagreed about

      Hutcherson’s credit time and, failing to reach an agreement, Hutcherson

      requested to proceed to trial. Consequently, the trial court vacated the plea

      agreement and set the cause for trial. On May 5, 2017, the State amended the

      charging Information by adding a habitual offender enhancement.


[6]   On June 12, 2017, the morning of the trial, Hutcherson waived his right to a

      jury trial. In support of this jury trial waiver, Hutcherson explained that he was

      only proceeding to trial because of the credit time disagreement with the State.

      He clarified that:


              This issue should have never came [sic] to this point. I mean I
              was trying to work this out with the prosecutor. I mean the issue
              with the plea that when we came here for the plea the last time
              was just that the time issue, I knew the time wasn’t right on what
              they was trying to give me credit for.


      (Transcript pp. 79-80). Following a bench trial, the trial court found

      Hutcherson guilty of failure to return to lawful custody, as a Level 6 felony.

      The court took the habitual offender enhancement under advisement until the

      sentencing hearing. On June 22, 2017, the parties submitted a stipulation of

      evidence regarding the habitual offender charge, and the trial court adjudicated

      Hutcherson as such. On June 29, 2017, the trial court vacated the habitual

      offender enhancement and sentenced Hutcherson to two-and-a-half years in the

      department of correction.


[7]   Hutcherson now appeals. Additional facts will be provided if necessary.


      Court of Appeals of Indiana | Memorandum Decision 29A04-1708-CR-1698 | February 15, 2018   Page 3 of 7
                               DISCUSSION AND DECISION
[8]    Hutcherson contends that the trial court judge should have recused himself sua

       sponte after Hutcherson made incriminating statements prior to trial. Indiana

       law presumes that a judge is unbiased and unprejudiced. See Garland v. State,

       788 N.E.2d 425, 433 (Ind. 2003). To rebut this presumption, a defendant must

       establish from the judge’s conduct actual bias or prejudice that places the

       defendant in jeopardy. Smith v. State, 770 N.E.2d 818, 823 (Ind. 2002).


[9]    A trial before an impartial judge is an essential element of due process. Everling

       v. State, 929 N.E.2d 1281, 1287 (Ind. 2010). 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. Timberlake v. State, 690 N.E.2d 243, 256 (Ind. 1997), reh’g denied.

       “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.

       Bias and prejudice violate a defendant’s due process right to a fair trial only

       where there is an undisputed claim or where the judge expressed an opinion of

       the controversy over which the judge was presiding. Smith, 770 N.E.2d at 823.


[10]   Our courts have long held that “[w]here a defendant fails to object or otherwise

       challenge a trial judge’s remarks, any alleged error is waived on appeal.”

       Garrett v. State, 737 N.E.2d 388, 391 (Ind. 2000). Therefore, where, like here,

       the defendant did not object, he can only seek review under the fundamental


       Court of Appeals of Indiana | Memorandum Decision 29A04-1708-CR-1698 | February 15, 2018   Page 4 of 7
       error doctrine. 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.


[11]   Focusing on the proceedings prior to trial, Hutcherson asks this court to deduce

       judicial bias from his own remarks in support of his request for a bench trial.

       He maintains that “[w]hat is presented to the [j]udge in this case clearly

       demonstrates that [Hutcherson] believe[d] that he is guilty and is making a

       request for consideration during sentencing prior to the commencement of

       trial.” (Appellant’s Br. p. 11). “The bias is clear here where the statements

       establish to the court that guilt is conceded without the [j]udge hearing any

       evidence.” (Appellant’s Br. p. 11). We disagree. Besides his own voluntary

       statement, Hutcherson cannot point to any demeanor or remarks made by the

       trial judge that would indicate even a minimum of judicial bias or prejudice.


[12]   Furthermore, our supreme court has determined that a trial judge’s knowledge

       of pretrial proceedings, including the admissions of guilt during unfinished plea

       proceedings, do not require recusal:

       Court of Appeals of Indiana | Memorandum Decision 29A04-1708-CR-1698 | February 15, 2018   Page 5 of 7
                It is common for trial judges to be called upon during the pre-trial
                and trial periods to determine the admissibility of confessions of
                guilt and other highly incriminating evidence on constitutional
                grounds. It is common for trial judges to have some knowledge
                of the past criminal record of those appearing before them for
                trial. It is common for a trial judge to have knowledge that more
                persons accused of crime in his court are convicted than are
                acquitted. A judge can, however, by reason of his education and
                experience, and his public charge to maintain the adversarial
                process, compartmentalize this type of knowledge, set it aside,
                and fairly and impartially apply the rules of evidence and the
                criminal standard of proof, and maintain the accused through the
                trial within the presumption of innocence.


       Gibson v. State, 449 N.E.2d 1096, 1097 (Ind. 1983). Hutcherson’s own remarks,

       in which he appears to admit to the underlying charge, are no different than any

       other pre-trial admissions or failed plea negotiations. Therefore, we cannot find

       any error, let alone fundamental error, that would have required the judge’s

       recusal. 1


                                                CONCLUSION
       Based on the foregoing, we conclude that the trial court judge did not err by

       failing to recuse himself sua sponte.


[13]   Affirmed.




       1
         Hutcherson also raises a claim based on the Code of Judicial Conduct. However, we have previously
       recognized that “the Indiana Supreme Court has exclusive jurisdiction over alleged violations of the Code of
       Judicial Conduct. Therefore we cannot determine whether the trial judge violated a Judicial Canon because
       it is not a proper consideration for this [c]ourt.” Shepherd v. Truex, 819 N.E.2d 457, 463 (Ind. Ct. App. 2004).

       Court of Appeals of Indiana | Memorandum Decision 29A04-1708-CR-1698 | February 15, 2018             Page 6 of 7
[14]   Baker, J. and Brown, J. concur




       Court of Appeals of Indiana | Memorandum Decision 29A04-1708-CR-1698 | February 15, 2018   Page 7 of 7
