MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Dec 29 2016, 9:31 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
Cynthia M. Carter                                       Gregory F. Zoeller
Law Office of Cynthia M. Carter, LLC                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Eric P. Babbs
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey R. Chaney,                                      December 29, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        73A01-1604-CR-767
        v.                                              Appeal from the Shelby Superior
                                                        Court
State of Indiana,                                       The Honorable R. Kent Apsley,
Appellee-Plaintiff                                      Judge
                                                        The Honorable Charles O’Connor,
                                                        Judge
                                                        Trial Court Cause No.
                                                        73D01-1502-FA-2



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-767 | December 29, 2016   Page 1 of 11
[1]   Jeffrey Chaney appeals the trial court’s finding that he is an Habitual Offender, 1

      as well as the sentence imposed by the trial court for that finding plus his

      convictions for Class A Felony Child Molesting2 and Class C Felony Child

      Molesting.3 With respect to the Habitual Offender finding, Chaney contends

      that (1) the trial judge should have recused himself from the sentencing portion

      of the proceedings because he was the prosecutor for two of the underlying

      convictions supporting the finding; and (2) there is insufficient evidence

      supporting the finding. Chaney also contends that the sentence imposed by the

      trial court is inappropriate in light of the nature of the offenses and his

      character. Finding no error, sufficient evidence, and that the sentence is not

      inappropriate, we affirm.


                                                    Facts
[2]   Chaney is the biological father of P.L.C., who was born in 2005. Beginning

      when P.L.C. was four or five years old, Chaney molested P.L.C. by touching,

      oral sex, and vaginal and anal intercourse. The molestations occurred every

      week, often twice per week, during the years that she lived with Chaney.

      Chaney often made P.L.C. say to him, “I want you” and “I love you” and

      sometimes called her “b*tch.” Tr. p. 403-04; State Ex. 2, 3. P.L.C.

      remembered that Chaney had molested her while they lived at her uncle’s



      1
          Ind. Code § 35-50-2-8.
      2
          Ind. Code § 35-42-4-3.
      3
          Id.


      Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-767 | December 29, 2016   Page 2 of 11
      house, which was in a trailer park. The family moved to that address on May

      7, 2013.


[3]   On February 6, 2015, the State charged Chaney with child molesting as a class

      A and a class C felony. On October 15, 2015, the State filed an allegation that

      Chaney was an habitual offender.


[4]   Chaney’s bifurcated jury trial began on February 23, 2016. By agreement of the

      parties, Judge Apsley presided over the guilt and sentencing phases, while

      Judge O’Connor presided over the enhancement phase. The parties and the

      trial court made this arrangement because Judge Apsley had been the elected

      prosecutor when Chaney received his prior convictions supporting the habitual

      offender allegation. On February 24, 2016, the jury found Chaney guilty as

      charged of the two felony offenses. The next day, Judge O’Connor presided

      over the enhancement phase, and the jury returned a finding that Chaney was

      an habitual offender.


[5]   On March 23, 2016, Judge Apsley conducted the sentencing hearing. Chaney

      received a sentence of forty-three years, with three years suspended, for the

      class A felony conviction, and a concurrent sentence of eight years for the class

      C felony. The trial court enhanced the sentence by thirty years for Chaney’s

      status as a habitual offender, for an aggregate seventy-three-year term. Chaney

      now appeals.




      Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-767 | December 29, 2016   Page 3 of 11
                                     Discussion and Decision
                                                I. Recusal
[6]   First, Chaney argues that Judge Apsley was prohibited from presiding over the

      sentencing hearing by the Judicial Canons. Initially, we note that Chaney’s

      attorney did not object to this process; consequently, he has waived this

      argument. See Carr v. State, 799 N.E.2d 1096, 1098 (Ind. Ct. App. 2003)

      (holding that timeliness is important on recusal issues and “a party may not lie

      in wait and only raise the recusal issue after receiving an adverse decision”).


[7]   Waiver notwithstanding, we turn our attention to Indiana Judicial Conduct

      Canon 2.11, which provides as follows:

              (A)     A judge shall disqualify himself or herself in any
                      proceeding in which the judge’s impartiality might
                      reasonably be questioned, including but not limited to the
                      following circumstances:


                                                      ***


                      (6)      The judge:


                               (a)     served as a lawyer in the matter in
                                       controversy, or was associated with a lawyer
                                       who participated substantially as a lawyer in
                                       the matter during such association . . . .


      Chaney asks us to find that the fact that Judge Apsley was the elected

      prosecutor at the time Chaney was convicted of two of the offenses underlying


      Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-767 | December 29, 2016   Page 4 of 11
      the habitual offender finding means that Judge Apsley served as a lawyer in the

      “matter in controversy.” As a result, Chaney insists that Judge Apsley should

      not have presided over the sentencing phase of the proceedings.


[8]   In Rankin v. State, our Supreme Court affirmed a trial judge’s denial of a motion

      to recuse where the judge had served as the prosecutor for one of the

      defendant’s prior convictions used to support a habitual offender allegation.

      563 N.E.2d 533 (Ind. 1990). The Rankin Court reasoned that recusal would

      have been required only if the defendant’s connection to the prior convictions

      had been disputed, for in that case the trial judge might have been called as a

      witness. Id. at 536.


[9]   Along the same lines, this Court found that a trial judge was not required to

      recuse himself where he had been the prosecutor in one of the cases relied on to

      establish the defendant’s habitual offender status. Jackson v. State, 33 N.E.3d

      1173, 1178 (Ind. Ct. App. 2015), summarily aff’d in relevant part, 50 N.E.3d 767,

      770 n.1 (Ind. 2016). The Jackson Court looked to Dishman v. State, 525 N.E.2d

      284 (Ind. 1988), which concerned a similar factual situation. In Dishman, our

      Supreme Court held as follows:

              In this situation, the trial judge would have erred had there been
              any factual contesting of the prior convictions. However, such
              was not the case here. Once the certified convictions were
              presented to the jury, the determination of the status as habitual
              criminal was virtually a foregone conclusion. There is no
              indication in this situation that the trial judge’s personal
              knowledge of appellant's prior convictions in any way played a


      Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-767 | December 29, 2016   Page 5 of 11
               part in the jury’s determination as to the status of habitual
               offender.


       Id. at 285. In Jackson, the defendant likewise did not contest the evidence of the

       prior convictions supporting the habitual offender adjudication. Consequently,

       the trial court did not err by denying the motion for change of judge. 33 N.E.3d

       at 1178-79.


[10]   Chaney argues that this line of cases, beginning with Dishman and Rankin, has

       been superseded by the Indiana Code of Judicial Conduct, which was adopted

       in 1993. Whether or not that is accurate, we find that the analysis contained in

       these cases is still relevant and sound. The starting point must be that the

       “matter in controversy” referenced by Judicial Conduct Rule 2.11 is the

       criminal proceeding being litigated. To bring a different case under the “matter

       of controversy” umbrella, at the very least, there must be a dispute creating a

       controversy—otherwise, there would be no need to recuse. Therefore, where

       the defendant is not contesting the evidence of the prior convictions supporting

       the habitual offender adjudication, those convictions are not the “matter in

       controversy[.]” Ind. Judicial Conduct Rule 2.11(A)(6)(a).


[11]   Here, Chaney does not contest the evidence of his prior convictions.

       Consequently, Judge Apsley was not required to recuse himself from the

       habitual offender adjudication (though he chose to do so out of an abundance

       of caution), much less the sentencing phase after the adjudication had already

       occurred.


       Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-767 | December 29, 2016   Page 6 of 11
[12]   Additionally, we note that this Court has described a dearth of authority to

       support the notion that a judge may be qualified to preside over a jury trial yet

       disqualified for purposes of sentencing. Sisson v. State, 985 N.E.2d 1, 19 (Ind.

       Ct. App. 2012) (holding that a judge’s prior time as prosecutor did not require

       recusal from sentencing the defendant), trans. denied. As Judge Apsley was

       unquestionably authorized to preside over the trial, we decline to find that he

       was unqualified to preside over sentencing. For multiple reasons, therefore, we

       find no error in Judge Apsley’s decision to preside over Chaney’s sentencing

       hearing.


                                             II. Sufficiency
[13]   Next, Chaney argues that the evidence underlying the habitual offender

       adjudication is insufficient to support the finding. In reviewing the sufficiency

       of the evidence, we will not reweigh the evidence, instead viewing the evidence

       in the light most favorable to the jury’s verdict. Toney v. State, 715 N.E.2d 367,

       369 (Ind. 1999).


[14]   To establish that Chaney is an habitual offender, the State was required to

       prove beyond a reasonable doubt that he had been convicted of two prior

       unrelated felonies. Ind. Code § 35-50-2-8 (2013). The sentencing for the first

       felony must have preceded the commission of the second felony; and the

       sentencing for the second felony must have preceded the commission of the

       instant felony for which the enhanced sentence is being sought. Toney, 715

       N.E.2d at 369.


       Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-767 | December 29, 2016   Page 7 of 11
[15]   Chaney does not dispute that he was sentenced for two class D felonies on

       January 27, 2005. State’s Ex. 8. He also does not dispute that he was

       sentenced for another class D felony on April 16, 2013. State’s Ex. 10.

       Similarly, he does not dispute that the date on which he committed the latter

       felony was between January 1 and June 1, 2011—years after he was sentenced

       on the first two felonies. Chaney’s sole argument is that there is insufficient

       evidence establishing that he committed an act of child molestation after April

       16, 2013, when he was sentenced on the most recent felony conviction.


[16]   We disagree. As a general matter, P.L.C. testified that Chaney molested her

       every week, often twice a week, and continued to do so until she was removed

       from his care and custody in early 2014. Tr. p. 398-99. More specifically, she

       also testified that among the locations where the molestations took place was

       the trailer home owned by her uncle. Id. at 408. A Department of Child

       Services (DCS) employee also testified. This individual had looked through the

       DCS computer system and determined that the family had lived at that trailer

       home between May 7 and August 30, 2013. Id. at 499. We find that this

       evidence is sufficient to establish that Chaney committed at least one act of

       molestation after April 16, 2013. Chaney’s arguments to the contrary amount

       to a request that we reweigh evidence and assess witness credibility—a request

       we decline.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-767 | December 29, 2016   Page 8 of 11
                                            III. Sentencing
[17]   Finally, Chaney argues that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offenses and his character. Indiana

       Appellate Rule 7(B) provides that this Court may revise a sentence if it is

       inappropriate in light of the nature of the offense and the character of the

       offender. We must “conduct [this] review with substantial deference and give

       ‘due consideration’ to the trial court’s decision—since the ‘principal role of

       [our] review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[18]   For the class A felony conviction, Chaney faced a sentence of twenty to fifty

       years, with an advisory term of thirty years. Ind. Code § 35-50-2-4 (2013). The

       trial court imposed a term of forty-three years, with three years suspended. For

       the class C felony conviction, Chaney faced a sentence of two to eight years,

       with an advisory term of four years. I.C. § 35-50-2-6 (2013). The trial court

       imposed a maximum term of eight years imprisonment, but ordered that it be

       served concurrently with, rather than consecutively to, the class A felony

       sentence. For Chaney’s status as an habitual offender, the trial court was

       required to enhance the sentence by at least the advisory term for the underlying

       offense, meaning thirty years for the class A felony. I.C. § 35-50-2-8(h) (2013).

       Thirty years is also the maximum possible enhancement. Therefore, the trial



       Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-767 | December 29, 2016   Page 9 of 11
       court imposed the required enhancement of thirty years, for an aggregate term

       of seventy-three years with three years suspended.


[19]   The abhorrent nature of Chaney’s offenses can scarcely be overstated. He

       preyed on his own daughter beginning when she was four or five years old. He

       violated her in essentially every way possible, up to and including vaginal and

       anal intercourse. He forced her to tell him that “I want you” and “I love you”

       and called her derogatory names. Tr. p. 403-04. Moreover, these despicable

       acts occurred weekly, sometimes more than once a week, for years.                         As a result

       of this trauma, P.L.C. sees a therapist and suffers from bed-wetting and

       nightmares. In our view, given the nature of these offenses, the trial court

       showed admirable restraint in refraining from imposing the maximum possible

       term. The nature of the offenses does not aid Chaney’s Rule 7(B) argument.


[20]   As for Chaney’s character, he has prior convictions for theft (twice), receiving

       stolen property, domestic battery, and resisting law enforcement. Altogether,

       he has three prior felony and four prior misdemeanor convictions. He has been

       placed on probation multiple times but has yet to successfully complete any

       term of probation. It is apparent that Chaney is unable or unwilling to conform

       his behavior to the laws of society and that he has a general disrespect for his

       fellow citizens. In short, his character does not aid his Rule 7(B) argument.

       We do not find the sentence imposed by the trial court to be inappropriate in

       light of the nature of the offenses and Chaney’s character.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-767 | December 29, 2016    Page 10 of 11
[21]   The judgment of the trial court is affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-767 | December 29, 2016   Page 11 of 11
