                                                                     FILED
                                                                Dec 12 2016, 6:02 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Kimberly A. Jackson                                       Gregory F. Zoeller
      Indianapolis, Indiana                                     Attorney General of Indiana
                                                                Karl Scharnberg
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA
      David A. Mathews,                                         December 12, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                01A02-1601-CR-104
              v.                                                Appeal from the Adams Superior
                                                                Court
      State of Indiana,                                         The Honorable Patrick R. Miller,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                01D01-1411-F6-52



      Mathias, Judge.


[1]   David A. Mathews (“Mathews”) was convicted in Adams Superior Court of

      misdemeanor operating a vehicle while intoxicated and felony obstruction of

      justice. Mathews appeals the order of the trial judge, his former lawyer in a

      tangentially related case, denying his motion for recusal and requests a new

      trial. We affirm.
      Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016             Page 1 of 15
                                     Facts and Procedural Posture

[2]   On July 24, 2003, Mathews was charged with several violations of Title Nine of

      the Indiana Code, “Motor Vehicles,” including Class D felony operating a

      vehicle while intoxicated endangering a person. The case was heard in Adams

      Superior Court under cause number 01D01-0307-FD-053 (“the 2003 Case”).

      Patrick R. Miller, then a public defender (“Attorney Miller”), now Adams

      Superior Court judge (“Judge Miller”), was appointed counsel to Mathews. On

      November 26, 2003, with the advice of Attorney Miller, Mathews pleaded

      guilty to the felony charge in exchange for dismissal of the remaining charges

      against him. Mathews was sentenced the same day, with most of the sentence

      suspended to probation.


[3]   On June 3, 2004, new charges were filed against Mathews. As a result, on July

      22, 2004, Mathews’s probation officer filed a petition of probation violation in

      the 2003 Case. The court appointed Attorney Miller to represent Mathews

      again in the probation violation proceeding. Attorney Miller noticed his intent

      to decline the appointment on August 3, 2004, and was withdrawn by the court

      the same day.1 On March 15, 2005, Mathews admitted to violating his

      probation in the 2003 Case.


[4]   On May 16, 2011, almost eight years after being charged in the 2003 Case,

      Mathews was charged with Class D felony intimidation and Class B




      1
          The grounds for Attorney Miller’s withdrawal do not appear in the record.


      Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016     Page 2 of 15
      misdemeanor public intoxication. In its final disposition,2 the case was heard

      under cause number 01C01-1202-FD-001 (“the 2011 Case”). In light of his prior

      record, including the 2003 Case, the State sought habitual substance offender

      status for Mathews under now-repealed Indiana Code § 35-50-2-10(b), relying

      in part on the conviction in the 2003 Case as a predicate for the habitual

      substance offender finding. The proceeding was to be bifurcated, with the

      felony and misdemeanor charges to be heard in the first phase and the recidivist

      charge in the second. Presiding over Mathews’s February 8, 2012, jury trial in

      Adams Superior Court was Attorney Miller, who had since been elected in

      2008 to become Judge Miller, as of January 1, 2009, all more than five years

      after his representation of Mathews as a public defender.


[5]   At the conclusion of the first phase, the jury returned guilty verdicts on the

      felony and misdemeanor charges. Mathews then moved for a mistrial, arguing

      that Judge Miller’s representation of Mathews in the 2003 Case disqualified

      Judge Miller from presiding over proceedings in the 2011 Case because the

      convictions in the 2003 Case were to be part of the State’s evidence on the

      recidivist charge in the 2011 Case. Judge Miller denied Mathews’s motion but,

      out of an abundance of caution and concern for the appearance of impropriety,

      transferred the case to the judge of Adams Circuit Court to hear the recidivist

      charge. The circuit court jury found Mathews to be a habitual substance




      2
       Before being transferred to Adams Circuit Court as described below, the case was heard under cause
      number 01D01-1105-FD-0048.

      Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016                   Page 3 of 15
      offender. After sentencing, Mathews was committed to the Department of

      Correction. This court affirmed Judge Miller and Mathews’s convictions on

      direct appeal. Mathews v. State, 978 N.E.2d 438 (Ind. Ct. App. 2012).


[6]   On November 7, 2014, while on parole from his sentence in the 2011 Case,

      Mathews was charged with a number of new motor vehicle offenses, including

      Class A misdemeanor operating a vehicle while intoxicated, and with Level 6

      felony obstruction of justice, stemming from Mathews’s refusal to comply with

      a search warrant ordering a draw of his blood. These charges, heard in Adams

      Superior Court under cause number 01D01-1411-F6-0052 (“the 2014 Case”),

      underlie Mathews’s current appeal. As a result of the charges, Mathews was

      found to have violated his parole in the 2011 Case and remanded to the

      Department of Correction.


[7]   On November 10, 2014, more than eleven years after being charged in the 2003

      Case, Mathews was brought before Judge Miller for his initial hearing in the

      2014 Case. Neither Mathews, who was unrepresented at the initial hearing, nor

      Judge Miller brought up Judge Miller’s former representation of Mathews in

      the 2003 Case or Mathews’s motion for a mistrial in the 2011 Case. Judge

      Miller recommended that Mathews decide quickly whether he wanted to retain

      private counsel or have counsel appointed, or risk missing important deadlines

      and thus “giv[ing] up rights, pleadings or defenses” available to him. Tr. p. 12.

      On December 15, 2014, Judge Miller appointed a public defender to Mathews’s

      case.



      Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016   Page 4 of 15
[8]   On April 1, 2015, Mathews and counsel appeared before Judge Miller for a

      pretrial conference. There, Mathews made the following statement to the court:


              Your Honor, I would like to make two requests of my public
              defender at this time. [First, I want him to move to dismiss for
              lack of a speedy trial.] And the second request your honor, is that
              I would like him to file a Change of Venue or Change of Judge
              due to your bias because of the past experiences that I had with
              you on the last trial. You know I had you thrown off the bench
              your honor and I don’t believe that you can make any fair
              judgment without being uh showing your personal and
              professional feelings towards me or the decisions that you make
              in that courtroom. Um, that is just how I feel. I still feel that I got
              denied a fair trial in the last process that I went in front of you
              your honor. And I wish for [my attorney] to file both of those if
              he could?


      Id. at 26–27. Mathews’s counsel then requested to be withdrawn from the

      representation for lack of his client’s trust. However, Mathews denied that he

      wanted a different attorney. Judge Miller denied counsel’s request, invited him

      to file a formal motion to withdraw if he wished, and further invited counsel,


              if you believe that it is appropriate and not [frivolous] to file a
              motion to dismiss or motion to change venue or judge, feel free
              to file it, I will address them promptly at that point in time once
              they’re filed, but they have to be in writing.


      Id. at 30.


[9]   On June 9, 2015, Mathews appeared before a senior judge of Adams Superior

      Court for another pretrial conference. Mathews appeared with new counsel, a



      Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016   Page 5 of 15
       different public defender, who explained that Mathews’s previous counsel had

       resigned from the public defender’s office.


[10]   The same day as the conference, June 9, 2015, the chronological case summary

       shows entry of “Defendant’s Verified Motion for Recusal of Judge.” The

       “verified motion” was not verified, cited no trial rule or statute, and was

       misdated by more than eight months. Factually, the motion alleged merely that

       Judge Miller had previously represented Mathews and previously recused

       himself from Mathews’s trial in the 2011 Case. Legally, the motion alleged that

       Judge Miller was required to recuse himself under “Judicial Canon 2.11(A),”

       and that failure to recuse would deprive Mathews of his “substantive due

       process” rights. Appellant’s App. p. 56. The motion was signed by Mathews’s

       former attorney. Id. at 57. More than two months had passed since Mathews

       raised the issue before Judge Miller at the April 1, 2015, pretrial conference.


[11]   On June 15, 2015, Judge Miller denied the motion for recusal. The grounds for

       that denial do not appear in the record.


[12]   On November 23, 2015, Mathews’s case was tried to a jury before Judge Miller.

       The jury found Mathews guilty of operating while intoxicated and obstruction

       of justice as charged. Mathews was sentenced by Judge Miller on December 17,

       2015.


[13]   This appeal followed.




       Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016   Page 6 of 15
                                           Standard of Review

[14]   We review rulings on motions for recusal for clear error. Garland v. State, 788

       N.E.2d 425, 433 (Ind. 2003).


                                                  Discussion

[15]   It is well settled that adjudication by an impartial tribunal is one of the

       fundamental requirements of due process imposed on the courts of this state by

       the Fourteenth Amendment to the federal constitution. Tumey v. Ohio, 273 U.S.

       510, 535 (1927); Blanche v. State, 690 N.E.2d 709, 714 (Ind. 1998). Judges are

       presumed impartial and unbiased. Garland v. State, 788 N.E.2d 425, 433 (Ind.

       2003). “[T]he law will not suppose a possibility of bias or favour in a judge,

       who is already sworn to administer impartial justice, and whose authority

       greatly depends upon that presumption and idea.” 3 William Blackstone,

       Commentaries *361.

       I. Recusal Under the Rules of Criminal Procedure


[16]   Ordinarily in a criminal case, parties seeking to overcome the presumption of

       judicial impartiality must move for a change of judge under Rule 12 of the

       Indiana Rules of Criminal Procedure. “The law is settled that a defendant is not

       entitled to a change of judge where the mandates of . . . Rule 12 have not been

       followed.” Flowers v. State, 738 N.E.2d 1051, 1060 (Ind. 2000). Rule 12 requires

       the movant to submit a verified affidavit reciting the reasons why bias or

       prejudice is believed to exist and historical facts supporting those reasons. Ind.

       Crim. Rule 12(B). The motion must be made within thirty days of the initial

       Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016   Page 7 of 15
       hearing unless due diligence could not have discovered the reasons for recusal

       within that period. Crim. R. 12(D)(1). The judge must grant the motion if the

       facts recited in the affidavit support a rational inference of bias or prejudice.

       Crim. R. 12(B).


[17]   Mathews concedes that his cursory, unverified motion for recusal, filed seven

       months after his initial hearing before Judge Miller, does not follow the

       mandates of Rule 12. However, Mathews argues that he is nonetheless entitled

       to relief because the Indiana Code of Judicial Conduct (“the Code”) required

       Judge Miller to recuse himself.

       II. Recusal Under the Code of Judicial Conduct


[18]   The Code provides that “[a] judge shall disqualify himself . . . in any proceeding

       in which the judge’s impartiality might reasonably be questioned . . . .” Ind.

       Judicial Conduct Rule 2.11(A). This general rule specifically includes cases

       where the judge has “served as a lawyer in the matter in controversy . . . .” Id.

       at (A)(6). The Comment to Rule 2.11 notes that a judge’s obligation to

       disqualify himself under the Rule “applies regardless of whether a motion to

       disqualify is filed.” Jud. Cond. R. 2.11 cmt. [2]. The Comment further

       recommends that a judge “disclose on the record information that the judge

       believes the parties or their lawyers might reasonably consider relevant to a

       possible motion for disqualification, even if the judge believes there is no basis

       for disqualification.” Id. at [5].




       Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016   Page 8 of 15
[19]   Mathews does not allege actual bias or prejudice against him on Judge Miller’s

       part. Rather, Mathews argues that Judge Miller’s impartiality might have been

       reasonably questioned in light of his former representation of Mathews in the

       2003 Case and in light of his earlier recusal from the recidivism proceeding in

       the 2011 Case. Mathews argues further that the 2003 Case was a “matter in

       controversy” in the 2014 Case. Finally, Mathews observes that Judge Miller did

       not disclose his prior involvement with Mathews, but that this would

       reasonably have been considered relevant and therefore should have been

       disclosed. The State disagrees.

            A. The Code of Judicial Conduct Does Not Create Freestanding Rights
               of Enforcement in Litigants

[20]   At the outset it is necessary to address the proposition underlying Mathews’s

       arguments: that the Code supplies a freestanding mechanism for relief,

       independent of a properly brought Rule 12 motion. We disagree.


[21]   Mathews relies on Sisson v. State, 985 N.E.2d 1 (Ind. Ct. App. 2012), and Voss v.

       State, 856 N.E.2d 1211 (Ind. 2006), in support of this proposition. In the latter

       case, Voss lodged an interlocutory appeal challenging the trial judge’s

       temporary transfer of Voss’s case to another judge for the limited purpose of

       resolving a Rule 12 recusal motion brought by the State. Our supreme court

       held both that the transfer was improper and that the State’s motion and the

       allegations contained therein were insufficient to support a rational inference of

       bias or prejudice as a matter of law. Voss, 856 N.E.2d at 1219-20.




       Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016   Page 9 of 15
[22]   The court then expressly declined to answer whether the judge “should

       nevertheless disqualify himself in this case.” Id. at 1220. The court noted the

       judge’s “continuing obligation [under the Code of Judicial Conduct] to sua

       sponte disqualify himself” where the Code so requires. Id. The court further

       noted that the Code requires consideration of a broader “array of

       circumstances” than does Rule 12, including “the judge’s own personal beliefs,

       values, [and] opinions,” and that therefore “the issue under [the Code] may

       provide an independent basis requiring disqualification even if the analysis

       required for determination under [Rule 12] would not require a change of

       judge.” Id. at 1220–21. After considering what the Code might require of the

       judge in this case, the court then remanded the case to the judge “so that he

       may personally consider whether to disqualify himself if he deems it

       appropriate” under the Code. Id. at 1221.


[23]   In Sisson, this court considered the requirements of the Code independently of a

       procedurally defaulted Rule 12 motion, only to conclude that a judge qualified

       to preside over the guilt phase of trial cannot be disqualified to preside over the

       sentencing phase. 985 N.E.2d at 19-20.

[24]   Recusal cases have sometimes treated the Code as supplying the substantive

       content of the standard for recusal under Rule 12. See, e.g., Thakkar v. State, 644

       N.E.2d 609 (Ind. Ct. App. 1994). However, no decision of this court or our

       supreme court has granted relief solely on the basis of the Code’s requirements

       absent an independent procedural vehicle for bringing the claim. See, e.g.,

       Patterson v. State, 926 N.E.2d 90 (Ind. Ct. App. 2010) (claim for ineffective

       Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016   Page 10 of 15
       assistance of counsel) (in light of the Code’s requirements, ineffective assistance

       when defendant’s attorney did not move for recusal under Rule 12); Calvert v.

       State, 498 N.E.2d 105 (Ind. Ct. App. 1986) (motion for mistrial) (defendant’s

       attorney learned of disqualifying facts during trial and promptly moved for

       mistrial); Stivers v. Knox County Department of Public Welfare, 482 N.E.2d 748

       (Ind. Ct. App. 1985) (claim of fundamental error) (unnamed procedural

       deficiencies in the Rule 12 motion excused by fundamental error).


[25]   It is undeniable that the Code fixes a judge’s obligations. We hold, however,

       that those obligations do not create freestanding rights of enforcement in private

       parties. The Code’s obligations are enforced by the individual judge against

       himself in the first instance, see Voss, 856 N.E.2d at 1221 (remand the

       appropriate remedy, so that the judge “may personally consider whether to

       disqualify himself” under the Code), Tyson v. State, 622 N.E.2d 457 (Ind. 1993)

       (recusal analysis and statement of Chief Justice Shepard), and in the last

       instance by disciplinary actions of our supreme court. See Ind. Admission and

       Discipline Rule 25(VIII) (“Disciplinary Procedure”).


[26]   Accepting Mathews’s contrary position would effectively nullify Rule 12 by

       creating a new species of recusal motion that could be brought at any time, in

       any manner, on grounds far broader than those contemplated by Rule 12. See

       Voss, 856 N.E.2d at 1220 (contrasting the “broad array of circumstances” to be

       considered under the Code with the limited “assertions of historical fact” to be

       considered in Rule 12 affidavits). This cannot be the result intended by the

       drafters of Rule 12 and of the Code. See Jud. Cond. R. Preamble [3] (“The Code

       Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016   Page 11 of 15
       is intended . . . to provide a basis for regulating [judicial] conduct through

       disciplinary agencies.”), Scope [7] (“The Code . . . is [not] intended to be the

       basis for litigants to seek collateral remedies against each other or to obtain

       tactical advantages . . . .”).


[27]   Moreover, Mathews’s position would allow litigants, trial courts, and indeed

       this court to usurp the exclusive supervisory authority of our supreme court

       over judicial conduct. See Ind. Const. art. VII, § 4 (original jurisdiction of

       supreme court over judges and courts); Admis. Disc. R. 25(I)(A) (exclusive,

       original jurisdiction of supreme court over discipline of judges); Ind. Appellate

       Rule 4(B)(2) (exclusive jurisdiction of supreme court over supervision of

       judges), (3) (exclusive jurisdiction of supreme court over supervision of courts).


[28]   For these reasons, Mathews is not entitled here to consideration of his

       freestanding claim for recusal under the Code.

           B. Judge Miller Was Not Required to Recuse Himself Under the Code

[29]   Even if this court were to undertake independent review of Judge Miller’s

       decision in light of the Code’s requirements, Mathews would not prevail.


[30]   First, in support of his position that the 2003 Case was a “matter in

       controversy” in the 2014 Case, Mathews argues that the 2003 Case (in which

       Attorney Miller represented Mathews) was “in controversy” in the 2011 Case

       (the recidivist phase of which Judge Miller recused himself from) as an offense

       predicate to the habitual substance offender charge. Mathews argues further

       that the 2011 Case was “in controversy” in the 2014 Case (the basis of the

       Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016   Page 12 of 15
       instant appeal) because the charges in the 2014 Case resulted in revocation of

       parole in the 2011 Case; an acquittal in the 2014 Case, argues Mathews,

       “presumably would serve as a full defense in the parole proceedings” in the

       2011 Case. Appellant’s Br. p. 12.


[31]   The first link in this chain, connecting the 2003 Case to the 2011 Case, is

       tenuous. See Dishman v. State, 525 N.E.2d 284, 285–86 (Ind. 1988) (no error

       where trial judge, formerly a prosecutor who secured convictions underlying a

       habitual offender finding, did not recuse himself from the habitual offender

       proceeding, because there was no “factual contesting” of the prior convictions);

       Gunter v. State, 605 N.E.2d 1209, 1211 (Ind. Ct. App. 1993) (no cause for

       disqualification on facts nearly identical to those in Dishman).


[32]   The second link, however, connecting the 2011 Case to the 2014 Case, is in fact

       no link at all. The decision to revoke Mathews’s parole in the 2011 Case was

       entirely and legally independent of the final disposition of the 2014 Case.


[33]   Parole may be revoked if a parolee violates the conditions of his parole. I.C. §

       11-13-3-10(c). One condition of parole is that the parolee not commit further

       crimes during the parole period. Id. at 4(a). Violations of parole may be proved

       by a preponderance of the evidence, Harris v. State, 836 N.E.2d 267, 270 (Ind.

       Ct. App. 2005), and the rules of evidence do not apply in parole revocation

       hearings. Ind. Evidence Rule 101(d)(2). Thus, a parolee’s commission of

       another crime in violation of the conditions of his parole may be proved by a

       lower quantum of proof than is required for a criminal conviction, and without


       Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016   Page 13 of 15
       restriction by the rules of evidence. Mathews could have been acquitted by an

       insufficiency of admissible evidence proving his guilt beyond a reasonable

       doubt, and still have been found to have violated his parole by a preponderance

       of otherwise inadmissible evidence, including hearsay. See Harris, 836 N.E.2d at

       280 (evidence in parole revocation hearing need only bear “some substantial

       indicia of reliability”). The 2003 Case was not, therefore, a “matter in

       controversy” in the 2014 Case.

[34]   Second, we do not agree with Mathews that Judge Miller’s recusal from the

       recidivist proceedings in the 2011 Case could in itself be grounds for reasonably

       questioning Judge Miller’s impartiality in a factually and legally unrelated

       proceeding two years later. Indeed, to weigh any prior recusal from a

       proceeding involving one party in favor of all future recusals from proceedings

       involving the same party would perversely disincentivize judges from recusing

       themselves where not absolutely mandated by the letter of the law, lest they be

       barred in the future from discharging their concurrent duty to “hear and decide”

       matters assigned to them. Jud. Cond. R. 2.7.


[35]   Finally, as to Judge Miller’s failure to disclose sua sponte his prior

       representation of Mathews, we note that this directive appears in a nonbinding

       comment to a rule, not in a rule itself. Jud. Cond. R. 2.11 cmt. [5]. However, it

       would seem that, as repetitive as such a disclosure might become in the case

       history of a serial recidivist like Mathews, disclosure is preferred.




       Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016   Page 14 of 15
                                                  Conclusion

[36]   For these reasons, we cannot say that Judge Miller’s denial of Mathews’s

       procedurally defaulted Rule 12 motion was clearly erroneous.


[37]   Affirmed.


       Robb, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 01A02-1601-CR-104 | December 12, 2016   Page 15 of 15
