MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    Feb 10 2016, 7:15 am
this Memorandum Decision shall not be
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.


APPELLANT PRO SE                                         ATTORNEYS FOR APPELLEE
James Phillips                                           Gregory F. Zoeller
Michigan City, Indiana                                   Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

James Phillips,                                          February 10, 2016
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         49A02-1507-PC-905
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana                                         The Honorable Kurt Eisgruber,
Appellee-Respondent.                                     Judge
                                                         Trial Court Cause No.
                                                         49G01-9106-PC-77267



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-905 | February 10, 2016          Page 1 of 6
[1]   In 1992, Appellant-Defendant James Phillips was convicted of two counts of

      attempted murder and one count of resisting arrest. Phillips was found to be a

      habitual offender and received a 100-year aggregate sentence. In 2014, Phillips

      filed a pro se petition for post-conviction relief (“PCR”) in which he claimed that

      his trial counsel was ineffective for failing to request a change of judge. Phillips

      argues that the trial court judge should have recused herself because she was a

      prosecutor on one of the cases which formed the basis for his habitual offender

      enhancement. The post-conviction court denied Phillips’s petition. We affirm.



                            Facts and Procedural History
[2]   The events underlying the instant matter occurred in the early morning hours of

      June 13, 1991. Phillips was standing alone outside of a nightclub while

      Indianapolis Police Officers Michael Smith and Timothy Day were asking

      patrons to disperse. At some point, Phillips approached Officer Smith from

      behind and shot Officer Smith twice in the back. Officer Day ordered Phillips

      to stop and Phillips turned and fired a shot at Officer Day, which missed, before

      fleeing the scene.


[3]   Phillips was convicted of two counts of Class A felony attempted murder and

      one count of Class D felony resisting arrest. Phillips was also found to be a

      habitual offender and sentenced to an aggregate term of 100 years of

      imprisonment. Phillips subsequently filed a direct appeal raising several claims.

      In a memorandum decision, this court affirmed the trial court in all respects.

      Phillips v. State, 49A02-9301-CR-5 (Ind. Ct. App. April 7, 1994) trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-905 | February 10, 2016   Page 2 of 6
[4]   On July 17, 1995, Phillips filed a PCR petition, which he later withdrew.

      Phillips pro se filed a new PCR petition in 2012, which he amended on October

      29, 2014. In his petition, Phillips claims that his trial counsel was ineffective for

      failing to request that the trial judge recuse herself, and that his appellate

      counsel was ineffective for failing to raise the issue on appeal. Specifically,

      Phillips claims that the trial court judge should have recused herself because she

      was a deputy prosecutor involved in a previous case against him which formed

      the basis for his habitual offender enhancement.


[5]   The post-conviction court held an evidentiary hearing on January 13, 2015

      where Phillips repeated his arguments but presented no additional evidence.

      On June 30, 2015, the post-conviction court issued an order denying Phillips’s

      request for relief, which Phillips now appeals.



                                 Discussion and Decision
[6]           This Court reviews claims of ineffective assistance of counsel
              under the two components set forth in Strickland v. Washington,
              466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the
              defendant must show that counsel’s performance was deficient.
              This requires a showing that counsel’s representation fell below
              an objective standard of reasonableness, and that the errors were
              so serious that they resulted in a denial of the right to counsel
              guaranteed the defendant by the Sixth Amendment. Second, the
              defendant must show that the deficient performance prejudiced
              the defendant. To establish prejudice, a defendant must show
              that there is a reasonable probability that, but for counsel’s
              unprofessional errors, the result of the proceeding would have
              been different. A reasonable probability is a probability sufficient
              to undermine confidence in the outcome.
      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-905 | February 10, 2016   Page 3 of 6
      Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002) (citations omitted).


[7]   Again, Phillips claims that his trial counsel was ineffective for failing to request

      the trial court judge, Judge Paula Lopossa, recuse herself, and that his appellate

      counsel was ineffective for failing to raise this issue on appeal. Specifically,

      Phillips argues that Judge Lapossa served as deputy prosecutor on his 1976

      murder case and so it was a violation of Canon 3C(1) of the Code of Judicial

      Conduct for her to subsequently serve as judge over his 1992 attempted murder

      case.1


[8]   At the time of Phillips’s trial, Canon 3C(1) provided as follows:

               (1) A judge should disqualify himself in any proceeding in which
                   his impartiality might reasonably be questioned, including but
                   not limited to instances where:
                   (a) he has personal bias or prejudice concerning one of the
                       parties or has personal knowledge of disputed evidentiary
                       facts concerning the proceeding;
                   (b) he served as a lawyer in the matter in controversy….


      Calvert v. State, 498 N.E.2d 105, 107 (Ind. Ct. App. 1986). As the post-

      conviction court noted, Phillips does not allege that Judge Lopossa had any

      personal bias or prejudice toward him. Phillips argues that Judge Lopossa

      violated subsection (b), “[serving] as a lawyer in the matter in controversy,”




      1
       The only evidence in the record of Judge Lapossa’s activity on the previous case is a copy of Phillips’s
      commitment record to the Indiana Department of Correction in 1976 which was signed by Lopossa as
      Deputy Prosecuting Attorney.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-905 | February 10, 2016             Page 4 of 6
       because the prior murder conviction––on which Judge Lopossa may have been

       the deputy prosecutor––was used as one of the predicate offenses supporting the

       imposition of a habitual offender enhancement in this case. We disagree.


[9]    Even assuming Judge Lopossa did act as prosecutor on a case forming the basis

       of Phillips’s subsequent habitual offender enhancement, we have previously

       held that such a circumstance does not entitle a defendant to a change of judge.

       See Dishman v. State, 525 N.E.2d 284 (Ind. 1988) (defendant was not entitled to

       change of judge, even though presiding judge had been prosecuting attorney

       before assuming the bench and had prosecuted defendant in two cases which

       formed basis for habitual offender charge); see also Gunter v. State, 605 N.E.2d

       1209 (Ind. Ct. App. 1993) (a judge’s involvement as the prosecuting attorney on

       the convictions supporting a habitual offender allegation was not cause for

       disqualification absent showing of actual bias) and Sisson v. State, 985 N.E.2d 1,

       19 (Ind. Ct. App. 2012).


[10]   Based on this precedent, it is highly unlikely that a request for a change of judge

       by Phillips’s trial counsel would have been successful. Phillips has not alleged

       any actual bias, and considering the long period of time between the habitual

       offender enhancement and the prior conviction (over fifteen years), we are

       convinced that there is not even the slightest appearance of bias in this case.

       Accordingly, we affirm the post-conviction court’s determination that trial

       counsel was not ineffective for failing to request a recusal and that appellate

       counsel was likewise not ineffective for failing to raise the issue on appeal.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-905 | February 10, 2016   Page 5 of 6
[11]   The judgment of the post-conviction court is affirmed.


       Baker, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-PC-905 | February 10, 2016   Page 6 of 6
