MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                         Feb 03 2016, 7:59 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
James C. Spencer                                         Gregory F. Zoeller
Dattilo Law Office                                       Attorney General of Indiana
Madison, Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stanley Freeman,                                         February 3, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A01-1504-CR-148
        v.                                               Appeal from the Jefferson Circuit
                                                         Court
State of Indiana,                                        The Honorable Fred H. Hoying,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         39C01-1301-FB-89



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 39A01-1504-CR-148 | February 3, 2016        Page 1 of 7
[1]   Stanley Freeman appeals the denial of his motion for change of judge that

      Freeman filed before his sentencing hearing. We affirm.


                                     Facts and Procedural History
[2]   On November 17, 2014, Freeman agreed to plead guilty to Class B felony

      conspiracy to deal methamphetamine based on activity in January 2013. The

      plea agreement provided for a sentence of “TEN (10) YEARS EXECUTED AT

      THE DEPARTMENT OF CORRECTION WITH FOUR (4) YEARS

      SUSPENDED. SIX (6) YEARS SHALL BE EXECUTED WITH THE

      DEFENDANT TO PRESENT EVIDENCE AND ARGUMENT AS TO

      PLACEMENT AS DIRECT PLACEMENT THROUGH COMMUNITY

      CORRECTIONS.” (App. at 88) (emphasis in original). Judge Darrell Auxier

      accepted the plea agreement, set a sentencing hearing for January 14, 2015, and

      ordered preparation of a Pre-Sentencing Investigation report.


[3]   On January 13, 2015, Freeman filed a motion to continue sentencing because

      “Judge Auxier took Defendant’s plea under advisement and Defendant would

      prefer that Judge Auxier perform the sentencing.” (Id. at 92.) The trial court

      denied Freeman’s motion but reset the sentencing hearing for March 4, 2015. 1

      Freeman did not appear at the sentencing hearing on March 4, and a warrant

      was issued for his arrest. Freeman presented a letter from a hospital indicating




      1
          It is unclear from the record why, when the hearing was reset, the motion to continue was denied.


      Court of Appeals of Indiana | Memorandum Decision 39A01-1504-CR-148 | February 3, 2016              Page 2 of 7
      he was admitted for chest pains on March 4, and the trial court reset his

      sentencing hearing for March 18, 2015.


[4]   On March 17, 2015, Freeman filed a motion to continue sentencing because his

      “wife Della Freeman was sent to the Department of Correction and Defendant

      needs additional time to make necessary preparations for his anticipated

      sentence, including making arrangements for his son. Also, Defendant has had

      recent medical procedures with a follow-up scheduled for April 18, 2015[.]”

      (Id. at 95.) The State objected to Freeman’s motion, arguing the matter had

      been pending with the trial court for over two years, the sentencing hearing had

      been delayed twice, and Freeman “has had four (4) months since he entered his

      plea to make arrangements and is trying to avoid conclusion of this matter[.]”

      (Id. at 97.) The trial court denied Freeman’s motion for continuance.


[5]   The trial court held Freeman’s sentencing hearing as scheduled on March 18,

      2015. Senior Judge Fred H. Hoying presided pro tempore over the hearing.

      Freeman renewed his motion for continuance, and the trial court denied his

      request. Freeman then stated:

              [Counsel]: . . . Freeman has also indicated to me that his
              expectation when he entered the plea and it was actually taken by
              Judge Auxier with the factual basis was that Judge Auxier was
              going to be doing the sentencing. He’s indicated to me that had
              he known that Judge Auxier was not going to be doing the
              sentencing that he uh . . . he would not have gone ahead and
              gone that distance as far as going ahead and pleading guilty, and
              I think Mr. Freeman at this point as [sic] at least requesting that a
              different judge hear his sentencing. I’d like for Mr. Freeman to
              explain further on that.
      Court of Appeals of Indiana | Memorandum Decision 39A01-1504-CR-148 | February 3, 2016   Page 3 of 7
              [Judge Hoying]:           Motion is denied. Your motion is denied.


              [Counsel]: Okay. For the record I think that Mr. Freeman
              would at least like to address that.


              [Judge Hoying]: You represent Mr. Freeman. The answer is
              “no”. [sic] You may go to the next section.


              [Counsel]: Okay. Well, Mr. Freeman has indicated to me that
              he believes that Your Honor is biased towards him and that he
              believes there’s a conflict of interest as far as you handling his
              sentencing.


              [Judge Hoying]:           A conflict of interest? I don’t practice law
              anywhere.


              [Counsel]: Well, he believes . . . the belief is that . . . that you’re
              biased against him as far as being able to pass sentence.


      (Tr. at 20-1.) The trial court asked if Freeman had filed a “petition” and

      Freeman indicated he had not. (Id. at 21.) The trial court proceeded with the

      sentencing hearing.


[6]   The trial court found Freeman’s “health problems” to be mitigating factors and

      “his lengthy criminal record and numerous times on probation, that probation

      has not seemed to be effective” to be aggravating factors in determining his

      sentence. (Id. at 24-5.) The trial court sentenced Freeman to ten years with five

      years executed to the Department of Correction, one year executed to

      Community Corrections, and four years suspended to probation.


      Court of Appeals of Indiana | Memorandum Decision 39A01-1504-CR-148 | February 3, 2016   Page 4 of 7
                                      Discussion and Decision
[7]   Senior Judge Hoying presided over Freeman’s sentencing hearing as a Judge

      pro tempore, the requirements and powers of which are governed by Indiana

      Trial Rule 63. Freeman asserts Senior Judge Hoying was not permitted to

      preside over his sentencing pursuant to T.R. 63(A). 2


              The judge who presides at the trial of a cause or a hearing at
              which evidence is received shall, if available, hear motions and
              make all decisions and rulings required to be made by the court
              relating to the evidence and the conduct of the trial or hearing
              after the trial or hearing is concluded. If the judge before whom
              the trial or hearing was held is not available by reason of death,
              sickness, absence or unwillingness to act, then any other judge
              regularly sitting in the judicial circuit or assigned to the cause
              may perform any of the duties to be performed by the court after
              the verdict is returned or the findings or decision of the court is
              filed; but if he is satisfied that he cannot perform those duties
              because he did not preside at the trial or for any other reason, he
              may in his discretion grant a new trial or new hearing, in whole
              or in part. The unavailability of any such trial or hearing judge
              shall be determined and shown by a court order made by the
              successor judge at any time.


[8]   Specifically Freeman argues Senior Judge Hoying did not provide a court order

      declaring Judge Auxier unavailable. However, that is not the argument he

      advanced before the trial court; instead he made a verbal motion for a new




      2
        On cross appeal, the State argues we should dismiss Freeman’s appeal because we do not have jurisdiction
      based on language in Freeman’s plea agreement waiving his right to appeal his sentence. As Freeman is not
      appealing his sentence, and instead the process by which it was handed down, we reject the State’s argument
      for dismissal.

      Court of Appeals of Indiana | Memorandum Decision 39A01-1504-CR-148 | February 3, 2016          Page 5 of 7
       judge. Thus, that argument is waived from our consideration on appeal. See

       Van Winkle v. Nash, 761 N.E.2d 856, 859 (Ind. Ct. App. 2002) (party’s failure to

       raise an issue before the trial court results in waiver of that issue on appeal).


[9]    Waiver notwithstanding, Judge Auxier was unavailable to preside over

       Freeman’s sentencing hearing on March 18, 2015, as he was granted

       “temporary leave” by the Indiana Supreme Court on February 10, 2015.

       Appointment of a Judge Pro Tempore in Jefferson Circuit Ct., 39S00-1502-MS-65

       (Ind. 2015). 3 The same order appointed Senior Judge Fred Hoying as Judge

       Pro Tempore during Judge Auxier’s absence. On April 2, 2015, our Indiana

       Supreme Court issued an order reinstating Judge Auxier and removing Judge

       Pro Tempore Hoying effective April 6, 2015. Id.


[10]   Additionally, the process to request a different judge in a proceeding is

       governed by Indiana Rule of Criminal Procedure 12(B), which states:

               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




       3
        In his reply brief, Freeman argues the State’s reference to our Indiana Supreme Court’s order granting
       Judge Auxier’s request for temporary leave and the appointment of Senior Judge Hoying as Judge Pro
       Tempore was outside the record. However, under Ind. Rules of Evidence 201, we may take judicial notice of
       Indiana court records.

       Court of Appeals of Indiana | Memorandum Decision 39A01-1504-CR-148 | February 3, 2016        Page 6 of 7
               be granted if the historical facts recited in the affidavit support a
               rational inference of bias or prejudice.


[11]   Normally, a request for a change of judge “shall be filed within thirty (30) days

       of the initial hearing.” Ind. R. Crim. Pro. 12(D)(1). However, if the cause for

       change of judge is discovered after that time, “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.” Ind. R. Crim. Pro. 12(D)(2). Freeman did not file a

       request for change of judge with accompanying affidavit, and thus the trial

       court did not err when it denied his verbal request for a change of judge during

       his sentencing hearing.


                                                 Conclusion
[12]   Freeman’s argument the trial court erred when it did not produce an order

       proving Judge Auxier unavailable under T.R. 63(A) is waived because Freeman

       did not present that argument before the trial court. Additionally, the trial court

       did not err when it denied Freeman’s request for a change of judge because he

       did not comply with the requirements of Ind. R. Crim. Pro 12(B). Accordingly,

       we affirm.


[13]   Affirmed.


       Najam, J., and Riley, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 39A01-1504-CR-148 | February 3, 2016   Page 7 of 7
