                                                                   FILED
                                                              Jun 22 2017, 5:25 am

                                                                   CLERK
                                                               Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Donald E.C. Leicht                                         Curtis T. Hill, Jr.
Kokomo, Indiana                                            Attorney General of Indiana
                                                           Chandra K. Hein
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Keith D. Abney,                                            June 22, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           34A02-1608-CR-1746
        v.                                                 Appeal from the Howard Superior
                                                           Court
State of Indiana,                                          The Honorable William C.
Appellee-Plaintiff.                                        Menges, Jr.
                                                           Trial Court Cause No.
                                                           34D01-1510-F2-914



Brown, Judge.




Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017                 Page 1 of 27
[1]   Before us is an important question we have not often had the opportunity to

      determine: what level of involvement by an attorney in a judge’s judicial

      campaign requires the judge to recuse from presiding over a case in which the

      attorney is involved? We apply case law, Criminal Rule 12, and the Code of

      Judicial Conduct to determine that here, recusal is not required.


                                       Facts and Procedural History

[2]   Between October 1, 2015, and October 3rd or 4th, Kokomo Police Sergeant

      Mark Miller conducted surveillance on Abney’s residence. Sergeant Miller

      spoke with Kurt Beck, Brian Dullworth, and Jonah Sands regarding activity at

      the residence. On October 5, 2015, Kokomo Police Officer Adam Martin

      conducted surveillance on Abney’s residence. Officer Martin observed vehicles

      arrive and leave the residence, and he observed a vehicle arrive at the residence

      and a white female exit the vehicle, go to the rear of the residence, enter, and

      exit approximately one or two minutes later. He conducted a traffic stop of her

      vehicle following an infraction and discovered two females, some syringes, and

      a bag of heroin in the vehicle. Officer Martin obtained a search warrant for the

      residence.


[3]   On October 6, 2015, at approximately 7:43 p.m., Kokomo Police Officer Zach

      Rodman, Detective Derek Root, and Officer Charlie Fourkiller assisted Officer

      Martin in the execution of the search warrant. Police discovered Abney,

      Patrick Acord, and Joyce Linkenhoker in the residence. They also discovered a

      gray rock-like substance that field tested positive for heroin in the kitchen, as

      well as drug paraphernalia that tested positive for methamphetamines, a pill
      Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 2 of 27
      bottle that contained multiple bags of a substance that field tested positive for

      heroin, a .380 handgun, a bag of syringes, a plastic bag that contained plant

      material that later tested positive for marijuana, digital scales, mail containing

      Abney’s name and the address where they were located, a monitor with a live

      feed of surveillance cameras surveying the outside of the residence, and $1,625.


[4]   Kokomo Police Sergeant Shane Melton read Acord his rights, and Officer

      Fourkiller read Abney and Linkenhoker their rights. Linkenhoker said that she

      “had some marijuana in a pipe or a dugout.” Transcript at 61. Abney stated

      that the gun belonged to a girl named Carrie Russell (“Carrie”), that he had

      given her fifty dollars, and that he was holding the gun as collateral. He also

      stated that anything Officer Martin finds “is going to be on the kitchen counter

      or lower level because he’s wheelchair bound.” Id. at 118. When the police

      discovered narcotics in the house, Abney stated that it was going to weigh

      about an eight ball, which is about 3.5 grams. Acord told Sergeant Melton that

      he was selling only his prescription pills and that he was not a heroin dealer.


[5]   In October 2015, the State charged Abney with: Count 1, dealing in a narcotic

      drug as a level 2 felony; Count 2, possession of a narcotic drug as a level 4

      felony; Count 3, possession of methamphetamine as a level 5 felony; Count 4,

      maintaining a common nuisance as a level 6 felony; and Count 5, unlawful

      possession of a syringe as a level 6 felony. On June 22, 2016, the State filed

      amended counts including: Count 1, dealing in a narcotic drug as a level 3

      felony; Count 2, possession of a narcotic drug as a level 5 felony; Count 3,



      Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 3 of 27
      possession of cocaine as a level 5 felony; and Count 4, maintaining a common

      nuisance as a level 6 felony.


[6]   On October 15, 2015, the court held an initial hearing, Abney requested the

      appointment of a public defender to represent him, and the court did so and

      scheduled a jury trial for January 15, 2016. A deputy public defender filed an

      appearance on October 23, 2015, and another deputy public defender filed an

      appearance on November 24, 2015. On March 11, 2016, the court held a

      competency hearing and found Abney competent to understand the

      proceedings and to stand trial. In May 2016, the court scheduled a jury trial for

      June 3, 2016. Abney filed a motion for a continuance, and the court granted

      the motion and continued the trial to June 10, 2016, and later rescheduled the

      trial to June 24, 2016, due to court congestion.


[7]   On June 23, 2016, Abney filed a motion to recuse the sitting judge, Judge

      William C. Menges, Jr., and argued that the elected Prosecuting Attorney Mark

      McCann is or recently was a member of the campaign committee of the judge

      and that Judge Menges had an ethical duty to disclose his relationship with Mr.

      McCann and/or other members of the Howard County Prosecutor’s office.

      Abney requested that the court set the matter for a hearing and upon notice and

      hearing recuse from the case.


[8]   On June 24, 2016, the court conducted voir dire, released the jury for the

      weekend, and held a hearing on Abney’s motion to recuse. Abney’s counsel

      stated that he spoke with Abney a couple of weeks earlier, Abney had raised a


      Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 4 of 27
concern about whether there was a “conflict between this prosecutor,” that on

June 23, 2016 he and Abney discussed a newspaper article, and that statements

in the article caused him to file the motion to recuse. Id. at 7. He also stated:

“Based upon Bloomington vs. Kiang, I believe that this needs to be disclosed. It’s

obviously been disclosed publically [sic] now but this relates to a fact that we

need to be disclosed and upon the request of the defendant the recusal is

awarded.” Id. at 9. Over the prosecutor’s objection, the court admitted

Defendant’s Exhibit A, a newspaper article dated June 10, 2016, which stated

in part:


        Months ahead of the general election, the race for the judge’s
        chair in Howard County Superior Court I grows tumultuous.


        Democratic candidate for the position of judge, Erik May,
        recently called into question the inclusion of county prosecutors
        on incumbent Judge William Menges’ election campaign.


        On May 27, May, representing Bradley Morgan, appeared in
        Superior Court I where he sought to have Menges recuse himself
        from the case.


        Over the course of the hearing, May cited a case known as
        Bloomington vs. Kiang. He believed the case set a precedent
        where Menges would be required to identify, on the record, his
        political ties to Chief Prosecutor Mark McCann, who was at the
        hearing, and Deputy Prosecutor Mark Hurt, who is prosecuting
        the case.


        Bloomington vs. Kiang involves a case in which a judge was
        forced to recuse herself from the case because the opposing

Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017    Page 5 of 27
        council’s [sic] attorney was found to have been the chair of the
        judge’s election committee. In an Indiana Court of Appeals
        opinion on the case, it was found that “the relationship between
        judge and the opposing counsel is of the type of information that
        can reasonably be considered relevant to a possible motion for
        disqualification” and that information wasn’t shared with the
        opposing counsel prior to the case beginning. Because the
        political tie had not been disclosed prior to the case beginning,
        the judge’s impartiality was called into question.


        As such, May believed the precedent required Menges to disclose
        McCann and Hurt’s positions on the judge’s committee and
        recuse himself from cases involving his supporters.


        Over the course of the hearing Menges recused himself from the
        case, but for a reason not involving any political affiliations.


                                               *****


        The question remains, however, about the ethics of county
        prosecutors serving on Menges’ reelection committee. According
        to legal experts, the most important part of the equation is an
        attorney’s involvement in the committee.


        “It seems to me, if I’m a lawyer on the other side and this guy
        signed up for the judge’s campaign, I need to know,” said
        Charles Geyh, a legal ethics expert at Indiana University’s
        Maurer School of Law. “Such things as how much assistance
        did this guy render before he left the campaign, to what extent
        does that imply a relationship that is close, personally and
        professionally, that a reasonable person would look at that and
        say they doubt the judge’s impartiality. You would want to look
        at those facts, look at what that information is, and make an
        assessment.”


Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017    Page 6 of 27
        McCann said as of now he has yet to participate in any election
        committee activities on behalf of Menges.


        “As I stated in the hearing, I was asked to serve on an advisory
        committee for Judge Menges,” said McCann. “I agreed and
        that’s been some time ago. I’ve not actively participated in his
        campaign. I’ve not discussed anything with him in his campaign
        and actually I made a courtesy call to Mr. May shortly after I
        agreed to that, letting him know that. That was about a day after
        he announced his candidacy.”


        Hurt’s statement was similar, and he said he was asked to have
        his name listed on a letter of endorsement by Menges. Since the
        hearing, he decided not to take part in Menges’ committee.


        “Judge Menges’ support letter has not been published,” said Hurt
        in a statement. I was planning to be on the letter since I believe
        Judge Menges is a good judge who serves our local community
        well. However, given one probationary license case filed with
        Judge Menges’, and objections raised by his opponent . . . I am
        not going to be listed on a support letter. Under Indiana law, in
        the majority of counties in Indiana, trial judges are elected in
        partisan elections. It is common for lawyers to be listed on the
        letterhead of the campaign committees of judges who they
        support.”


        McCann, on the other hand, said he would continue to support
        Menges.


        “As it stands now, unless someone instructs me otherwise, I will
        continue to serve on the advisory committee as that entails,” said
        McCann. “I don’t believe in any way that interferes with my
        ability to carry out my duties as prosecutor.”



Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 7 of 27
        Menges said he doesn’t believe Bloomington vs. Kiang applies in
        the matter regarding him and the prosecutors at this point
        because in that particular case the lawyer had served as the chair
        of the judge’s election committee. Thus far in Menges’
        campaign, he said he only sought a public endorsement from the
        prosecutors.


        “It’s just a public endorsement,” said Menges. “It doesn’t even
        come close. The other thing is if it is a problem, then I would
        simply ask Mark to not be on the committee. They haven’t done
        anything yet. We haven’t even at this point, established a
        committee. Mark was just asked if they would serve. They
        indicated they would. We don’t even have the committee yet, let
        alone somebody playing an active role in it.”


        If the prosecutors simply appear on a letterhead or endorse
        Menges publicly, Geyh said he didn’t see such an act as calling
        the judge’s impartiality into question.


        “If they are neither running his campaign nor fundraising on his
        behalf, I’m not all that troubled by a simple statement of
        support,” said Geyh. “Lawyers routinely make modest
        contributions to the campaigns of judges before whom they
        appear, and the judge is not required to disqualify later as a
        consequence of that. A simple statement of support doesn’t
        strike me as that different.”


        Menges said Bob Hingst serves as the chair of his reelection
        committee at this point, and Chief public Defender Steven
        Raquet also serves on Menges’ reelection committee.


        May said attorneys don’t serve on his election committee because
        he “wouldn’t put a colleague in that position.”



Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 8 of 27
      Defendant’s Exhibit A.


[9]   The court stated:


              I would note that within the article the writer, the reporter
              contacted, in quotes, Charles Geyh, who they identify as a legal
              ethics expert at Indiana University’s Maurer School of Law, who
              says later on if the prosecutors simply appear on letterhead or on
              endorsement just publically [sic], Geyh said he didn’t see such an
              act as calling the judge’s impartiality into question. Secondly,
              based on hearsay, I’ve been informed by Mr. McCann that he
              consulted Mr. Rumburg who apparently is an advisor of some
              sort to the Prosecuting Attorney’s Council. Mr. Rumburg saw
              no ethical issue either from my point, my part or from Mr.
              McCann’s part. Thirdly, the allegation raised by Mr. May would
              have required or at least what he was attempting to do for
              (inaudible) of political purposes, was to put the court in a
              position where it could hear no criminal cases pending the
              outcome of the election that which would obviously or could
              obviously be exploited as a political advantage by Mr. May, and
              so I consulted the Judicial Qualifications Commission. The Staff
              Attorney indicated in no uncertain terms that they do not read
              the Bloomington case the same way that imminent [sic] legal
              scholar and expert on legal ethics, Dan May, reads it. And saw
              no problem with me continuing to preside over criminal cases.
              Finally as to the impartiality argument, we have another very
              interesting twist as it applies to this particular case because, and I
              will, or there’s two things, Mr. Steele, for the purposes of this
              hearing. Number one, I will take judicial notice that you are a
              Deputy Public Defender, that you serve at the pleasure of Steven
              Raquet, the Chief Public Defender, and his Chief Deputy, Andy
              Vandenbosch, and I would further take judicial notice of the fact
              that those two gentlemen are partners of yours in your private
              practice of law. Both of them have agreed to serve in exactly the
              same role that Mr. McCann has, as willing to publically [sic]
              endorse my candidacy. So what we have from a very practical

      Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017     Page 9 of 27
               standpoint is a legal precedent being cited that has no bearing on
               this case or I shouldn’t say no bearing, no application to this case
               and it is very easily distinguished, and, secondly, as to the
               argument of impartiality, we have both sides supporting my
               candidacy or at least the relationship, the higher parties, if you
               will, from both sides are supporting my candidacy, so I don’t
               think any impartiality can be impugned from that fact. We’ll
               show the Motion to Recuse denied.


       Transcript at 12-13.


[10]   On June 27 and 28, 2016, the court held a jury trial. The State presented the

       testimony of Officer Rodman, Detective Root, Sergeant Melton, Officer

       Martin, and others. During direct examination, the prosecutor asked Sergeant

       Melton if Acord accepted responsibility for anything, and he answered:

               He told me, I talked to him outside in the front of the house after
               I read him his rights, you know, ‘cause initially when we show
               up everybody’s always, what’s going on, why are the police here,
               you know, the same old thing, but he stated that he was only
               selling his prescription pills and that he wasn’t a heroin dealer.
               He sold, I think they were Oxycodones. They were the blue pills,
               and so he wanted to take ownership of selling his own
               prescription because he needed the money, but he didn’t say
               anything about selling heroin.


       Id. at 63. On cross-examination, Sergeant Melton testified that Acord admitted

       to using heroin.


[11]   During the cross-examination of Officer Martin, Abney’s counsel asked him if

       Sergeant Miller told him that Dullworth, Beck, and Sands “had indicated at the

       time that they spoke to [Sergeant Miller] that they had ever bought drugs off of,

       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 10 of 27
       or that they had bought drugs at those times off of Mr. Abney?” Id. at 121. The

       prosecutor objected to the form of the question and asserted that it called for a

       hearsay conclusion, and the court sustained the objection. Abney’s counsel

       then stated: “Isn’t it true in your affidavit you indicated that those individuals,

       in your search warrant affidavit that resulted in Exhibit 14, the search warrant,

       that you indicated that . . . .” Id. The prosecutor objected to defense counsel

       reading from documents not in evidence, and the court sustained the objection.

       Abney’s counsel asked Officer Martin if Acord told him that he sold drugs, the

       prosecutor objected on the basis of hearsay, and the court sustained the

       objection. Abney’s counsel asserted: “I believe he already answered that in his

       direct examination (inaudible).” Id. The court stated: “Well, at this point I’ll

       sustain the objection.” Id.


[12]   After the State rested, Abney’s counsel moved for a directed verdict on Count 1

       which was denied During the direct examination of Sergeant Miller, Abney’s

       counsel asked if Beck, Dullworth, or Sands said they purchased drugs from

       Abney, the prosecutor objected on the basis of hearsay, and the court sustained

       the objection. Martin D. Russell (“Martin”) testified that he rented a location

       in Kokomo from Abney’s father, he fell behind in his rent, and that he provided

       a pistol as collateral for his lack of full payment. On cross-examination, Martin

       testified that he was unaware that Detective Melton questioned Abney and that

       Abney told Detective Melton that Carrie, Martin’s daughter, brought the gun

       over to him and he gave her fifty dollars as collateral. When asked if Carrie




       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 11 of 27
       was a drug addict, Martin answered: “Probably. Yes, sir, she is. Or she was

       anyway.” Id. at 152.


[13]   During closing argument, Abney’s counsel stated:

               What story does the State want you to believe? They want you
               to believe that Keith Abney is a hardened drug dealer, that he
               sold heroin from his home, that he was responsible for everything
               in that home. They don’t want you to believe that it was the
               admitted drug deal [sic], Patrick Acord, who told Sgt. Melton
               that he was dealing drugs out of that house. They don’t want
               you to believe that it was Patrick Acord that was responsible for
               all of that evidence of drug dealing in the home.


                                                      *****


               So maybe they did find some heroin. But whose was it? Was it
               [Abney’s]? Or the admitted drug dealer, Patrick Acord?


                                                      *****


               No one testified that they ever purchased drugs off of Keith
               Abney. No one testified that they ever witnessed Keith Abney
               even using drugs. Was his home used as a place where drugs
               were used and sold? Yes. . . . Patrick Acord was present.
               Patrick Acord admitted to Sgt. Melton that he sold drugs.


       Id. at 165-167. In reply, the prosecutor argued that Acord admitted to Officer

       Martin only that he sold his prescription pills and that the officers never testified

       that Acord admitted to selling cocaine or heroin.




       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 12 of 27
[14]   The jury found Abney guilty as charged. On July 27, 2016, the court sentenced

       Abney to 4,380 days for Count 1, 2,190 days for Count 3, 913 days for Count 4,

       and 913 days for Count 5, to be served concurrently, and ordered that “Count 2

       is merged with Count 1.” Appellant’s Appendix Volume 3 at 55.


                                                     Discussion

                                                           I.


[15]   The first issue is whether the trial court erred in denying Abney’s motion for

       recusal. Abney points out that the newspaper article stated that the elected

       prosecutor indicated that he would continue to serve on the advisory committee

       unless someone instructed him otherwise, that the advisory committee was the

       trial judge’s current re-election committee, the prosecutor was on the letterhead

       of the trial judge’s current re-election campaign, and the article was

       contemporaneous with his case. He contends the fact that the trial judge’s re-

       election letterhead also contained the names of two chief public defenders did

       not mitigate the requirement that the trial judge should have recused himself.


[16]   The State argues that the Judicial Qualifications Commission found that the

       trial judge was permitted to preside over criminal cases despite various

       endorsements. It points out that the article stated that the elected prosecutor,

       not the prosecutor in Abney’s case, had yet to participate in any election

       committee activities on behalf of the trial judge, and that two members of the

       chief public defender’s office, who were partners in defense counsel’s law firm,

       had also publicly endorsed the judge’s candidacy.


       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 13 of 27
[17]   Neither party cites Ind. Criminal Rule 12, which sets forth the relevant grounds

       applicable to requests for changes of judge in criminal cases. See Voss v. State,

       856 N.E.2d 1211, 1216 (Ind. 2006). The rule provides:


               (B) Change of Judge--Felony and Misdemeanor Cases. 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
               be granted if the historical facts recited in the affidavit support a
               rational inference of bias or prejudice.


       Ind. Criminal Rule 12(B).


[18]   “Adjudicating a request for change of judge based on Rule 12(B) requires an

       objective, not subjective, legal determination by the judge, who is ‘to examine

       the affidavit, treat the facts recited in the affidavit as true, and determine

       whether these facts support a rational inference of bias or prejudice.’” Voss, 856

       N.E.2d at 1216 (quoting Sturgeon v. State, 719 N.E.2d 1173, 1181 (Ind. 1999)).

       This version of Rule 12 contrasts with the former provisions of Rule 12, which

       required a party seeking a change of judge to establish actual personal bias. Id.

       Under the present rule:


               A party is entitled to a change of judge only “if the historical facts
               recited in the affidavit support a rational inference of bias or
               prejudice.” Crim. R. 12(B). This is not limited to cases in which

       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017    Page 14 of 27
               the judge has expressed an opinion on guilt or innocence or the
               merits of the case. It does not depend on a subjective showing
               that the trial judge is actually biased or prejudiced. In
               considering a motion for change of judge, the challenged judge’s
               ruling does not depend upon a self-assessment of actual bias or
               prejudice. The judge must instead determine whether the
               historical facts presented in support of the motion lead to a
               rational inference of bias or prejudice.


       Id. (quoting Allen v. State, 737 N.E.2d 741, 743 (Ind. 2000)). “A change of judge

       is neither automatic nor discretionary, but rather requires the trial judge to

       make a legal determination, not a self-analysis, of actual bias or prejudice.” Id.

       (citing Sturgeon, 719 N.E.2d at 1181; Allen, 737 N.E.2d at 743). “[T]he

       appropriate standard of review of a trial judge’s decision to grant or deny a

       motion for change of judge under Indiana Criminal Rule 12 is whether the

       judge’s decision was clearly erroneous.” Sturgeon, 719 N.E.2d at 1182.

       “Reversal will require a showing which leaves us with a definite and firm

       conviction that a mistake has been made.” Id.


[19]   Ind. Criminal Rule 12(D) governs the time period for filing a request for change

       of judge and provides:


               (D) Time Period for Filing Request for Change of Judge or
               Change of Venue. In any criminal action, no change of judge or
               change of venue from the county shall be granted except within
               the time herein provided.


                        (1) Thirty Day Rule. An application for a change of judge
                        or change of venue from the county shall be filed within
                        thirty (30) days of the initial hearing. Provided, that where

       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017    Page 15 of 27
                        a cause is remanded for a new trial by the court on appeal,
                        such application must be filed not later than thirty (30)
                        days after the defendant first appears in person before the
                        trial court following remand.


                        (2) Subsequently Discovered Grounds. If the applicant
                        first obtains knowledge of the cause for change of venue
                        from the judge or from the county after the time above
                        limited, 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. Any opposing party shall have the right to file
                        counter-affidavits on such issue within ten (10) days, and
                        after a hearing on the motion, the ruling of the court may
                        be reviewed only for abuse of discretion.


[20]   The law is settled that a criminal defendant is not entitled to a change of judge

       where the mandates of Criminal Rule 12 have not been followed. Flowers v.

       State, 738 N.E.2d 1051, 1059-1060 (Ind. 2000) (citing Smith v. State, 477 N.E.2d

       857, 864 (Ind. 1985); Welch v. State, 564 N.E.2d 525, 529 (Ind. Ct. App. 1990)),

       reh’g denied. We note that Abney did not file an affidavit that the judge had a

       personal bias or prejudice and did not file a certificate from the attorney of

       record that the attorney in good faith believes that the historical facts recited in

       the affidavit are true. Abney also did not file his request within thirty days of

       the initial hearing. While he introduced a newspaper article dated June 10,

       2016, as an exhibit on June 24, 2016, he did not specifically allege why such

       cause could not have been discovered before by the exercise of due diligence.

       Thus, we cannot say that Abney followed the mandates of Criminal Rule 12 or
       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017    Page 16 of 27
       that the trial court erred in denying Abney’s motion. See Flowers, 738 N.E.2d at

       1060 (holding that the trial court properly denied a motion for change of judge

       because of the deficiencies in it including the defendant’s failure to file his

       verified motion for change of judge within the required period of time and

       failure to allege when he first learned of the grounds for a change of judge or

       why the grounds could not have been discovered earlier in the exercise of due

       diligence).


[21]   Abney does not cite Ind. Criminal Rule 12 but rather argues that the trial judge

       should have recused under the Code of Judicial Conduct. In Mathews v.

       State, 64 N.E.3d 1250, 1254 (Ind. Ct. App. 2016), trans. denied, we recently

       rejected the argument that the Code of Judicial Conduct supplies a freestanding

       mechanism for relief, independent of a properly brought Criminal Rule 12

       motion. We held that the obligations in the Code of Judicial Conduct are

       enforced by the individual judge against himself in the first instance, and in the

       last instance by disciplinary actions of the Indiana Supreme Court. 64 N.E.3d

       at 1255. We also held that allowing an independent action under the Code of

       Judicial Conduct would allow litigants, trial courts, and this Court to usurp the

       exclusive supervisory authority of the Indiana Supreme Court over judicial

       conduct. Id.


[22]   Even if we were to undertake independent review of the trial judge’s decision in

       light of the requirements of the Code of Judicial Conduct, we cannot say that

       Abney would prevail. See id. at 1256 (holding that defendant would not prevail



       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 17 of 27
       even if we conducted an independent review of the trial judge’s decision in light

       of the Code of Judicial Conduct).


[23]   Canon 2 of the Indiana Code of Judicial Conduct commands: “A Judge Shall

       Perform the Duties of Judicial Office Impartially, Competently, and

       Diligently.” Ind. Judicial Conduct Rule 2.11 governs the disqualification of

       judges and provides in part:


               (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:


                        (1) The judge has a personal bias or prejudice concerning a
                        party or a party’s lawyer, or personal knowledge* of facts
                        that are in dispute in the proceeding


[24]   Rule 2.11 contains comments which are provided for “guidance regarding the

       purpose, meaning, and proper application of the Rules” and to “identify

       aspirational goals for judges,” Ind. Code of Judicial Conduct, Scope at 3-4,

       including:


               [1] Under this Rule, a judge is disqualified whenever the judge’s
               impartiality might reasonably be questioned, regardless of
               whether any of the specific provisions of paragraphs (A)(1)
               through (6) apply. In many jurisdictions, the term “recusal” is
               used interchangeably with the term “disqualification.”


               [2] A judge’s obligation not to hear or decide matters in which
               disqualification is required applies regardless of whether a
               motion to disqualify is filed.

       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 18 of 27
                                                      *****


               [5] A judge should 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.


       Ind. Code of Judicial Conduct Rule 2.11 cmt. 1-2, 5.


[25]   Canon 4 of the Indiana Code of Judicial Conduct provides: “A Judge or

       Candidate for Judicial Office Shall Not Engage in Political or Campaign

       Activity That is Inconsistent with the Independence, Integrity, or Impartiality

       of the Judiciary.”


[26]   Rule 4.4 is titled “Campaign Committees” and provides in part:


               (A) A judicial candidate* subject to partisan or nonpartisan
               election*, and a candidate for retention who has met active
               opposition, may establish a campaign committee to manage and
               conduct a campaign for the candidate, subject to the provisions
               of this Code. The candidate is responsible for ensuring that his
               or her campaign committee complies with applicable provisions
               of this Code and other applicable law.*


               (B) A judicial candidate shall direct his or her campaign
               committee:


                        (1) to solicit and accept only such campaign contributions*
                        as are reasonable;


                        (2) not to solicit or accept contributions for a candidate’s
                        current campaign more than one (1) year before the

       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017        Page 19 of 27
                        applicable primary election, caucus, or general or retention
                        election, nor more than ninety (90) days after the last
                        election in which the candidate participated; and


                        (3) to comply with all applicable statutory requirements for
                        disclosure and divestiture of campaign contributions.


[27]   Comment [3] to Rule 4.4 provides:

               At the start of a campaign, the candidate must instruct the
               campaign committee to solicit or accept only such contributions
               as are reasonable in amount, appropriate under the
               circumstances, and in conformity with applicable law. Although
               lawyers and others who might appear before a successful
               candidate for judicial office are permitted to make campaign
               contributions, the candidate should instruct his or her campaign
               committee to be especially cautious in connection with such
               contributions, so they do not create grounds for disqualification if
               the candidate is elected to judicial office. See Rule 2.11.


[28]   Both parties discuss Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61 (Ind. Ct.

       App. 2012). In that case, Bloomington Magazine, Inc. and Mark Kiang d/b/a

       Mikado Restaurant, Sunbeam Corp., and Truffles 56 Degrees, Inc. (“Mikado”

       and “Truffles,” respectively, and collectively, “Kiang”), executed two

       agreements to place advertisements in the magazine for both Mikado and

       Truffles. 961 N.E.2d at 62. When a dispute as to payment arose, Bloomington

       Magazine filed claims on December 19, 2008, seeking damages. Id. On

       February 17, 2009, Attorney Geoffrey Grodner entered an appearance on

       behalf of Kiang. Id. On January 4, 2010, the court issued an order finding in

       favor of Kiang and against Bloomington Magazine. Id. Bloomington

       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 20 of 27
       Magazine ultimately filed a Motion to Set Aside which asserted that the owner

       and publisher of the magazine discovered that counsel for Kiang, Grodner,

       served as Chair for Judge Haughton’s campaign committee for the 2008

       elections and that the relationship between the judge and opposing counsel was

       of the type of information that can reasonably be considered relevant to a

       possible motion for disqualification. Id. at 62-63. Bloomington Magazine also

       filed a motion to recuse. Id. at 63. The trial court denied Bloomington

       Magazine’s motions. Id.


[29]   On appeal, we held that the mere appearance of bias and partiality may require

       recusal if an objective person, knowledgeable of all the circumstances, would

       have a rational basis for doubting the judge’s impartiality. Id. at 64 (citing

       Patterson v. State, 926 N.E.2d 90, 94 (Ind. Ct. App. 2010)).1 We found that the

       professional relationship between Judge Haughton and Attorney Grodner, in

       which Grodner served as the chairman of Judge Haughton’s 2008 election

       committee, was not so remote in time so as to dispel the appearance of an

       impropriety such that a reasonable person would have a rational basis for

       doubting her impartiality. Id. at 66. We found particularly relevant that

       Grodner’s appearance in the matter was filed in February 2009, which was




       1
         The court in Patterson cited Thakkar v. State, 644 N.E.2d 609 (Ind. Ct. App. 1994), which in turn cited Chief
       Justice Shepard’s statement in Tyson v. State, 622 N.E.2d 457 (Ind. 1993), in which he denied an application
       asking him to vacate his earlier disqualification from the case. Chief Justice Shepard wrote that then Canon
       3(C)(1) provided that a judge “should disqualify himself in a proceeding in which his impartiality might
       reasonably be questioned.” 622 N.E.2d at 459. He also stated that the “test under Canon 3(C)(1) is whether
       an objective person, knowledgeable of all the circumstances, would have a reasonable basis for doubting the
       judge’s impartiality.” Id.

       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017                          Page 21 of 27
       three months following the election at issue. Id. at 66-67. Despite the fact that

       the Motion to Recuse was filed in August 2010, that motion requested recusal

       from a Trial Rule 60(B) hearing concerning Judge Haughton’s failure to recuse

       herself from a hearing taking place months earlier, in November 2009, at which

       Attorney Grodner had represented Kiang. Id. at 67. We observed that the

       chronological case summary revealed that following the filing of his appearance

       and leading up to the bench trial, Grodner filed documents in the matter in

       Judge Haughton’s court in March, April, June, and August 2009. Id. We also

       noted that the Motion to Recuse itself was filed within two years of the 2008

       election. Id. We remanded for a hearing on Bloomington Magazine’s Motion

       to Set Aside to be heard by a special judge in accordance with Ind. Trial Rule

       79. Id.


[30]   Unlike in Bloomington Magazine in which Attorney Grodner served as the

       chairman of Judge Haughton’s election committee, the elected prosecutor was

       not the chairman and had yet to perform any election committee activities on

       behalf of Judge Menges at the time of the article. Moreover, Judge Menges

       took judicial notice that Abney’s counsel was a deputy public defender and that

       the Chief Public Defender and his Chief Deputy were partners of Abney’s

       counsel in his private practice of law and that both of them “agreed to serve in

       exactly the same role that [the elected prosecuting attorney] has, as willing to

       publically [sic] endorse my candidacy” and that “we have both sides supporting

       my candidacy or at least the relationship, the higher parties, if you will, from

       both sides are supporting my candidacy . . . .” Transcript at 13. Under the


       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 22 of 27
       circumstances, we cannot say that an objective person, knowledgeable of all the

       circumstances, would have a rational basis for doubting the judge’s impartiality

       or that the trial court erred.


                                                          II.


[31]   The next issue is whether the trial court abused its discretion in excluding

       certain evidence. The admission and exclusion of evidence falls within the

       sound discretion of the trial court, and we review the admission of evidence

       only for an abuse of discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind.

       2002). An abuse of discretion occurs “where the decision is clearly against the

       logic and effect of the facts and circumstances.” Smith v. State, 754 N.E.2d 502,

       504 (Ind. 2001). Even when a trial court errs in excluding evidence, we will not

       find reversible error where that error is harmless; that is, where the error did not

       affect the substantial rights of a party. See Ind. Trial Rule 61.


[32]   Abney argues that the trial court refused to allow him to “explore the fact that

       Patrick Acord was an admitted drug dealer even though that evidence was

       already testified to and even though Patrick Acord was present at Abney’s

       house when the search warrant was executed.” Appellant’s Brief at 13-14

       (citation omitted). He asks: “Is it possible the jury may have entertained

       reasonable doubt as to Abney being THE drug dealer in residence if Abney had

       been permitted by the Trial Court to go down this line of reasoning?” Id. at 14.

       He also points out that Officer Martin’s affidavit stated that Sergeant Miller had

       talked to Dullworth and Beck on September 30, 2015, and they told him that


       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 23 of 27
       heroin was being sold from the residence by Acord. He contends that “denying

       to the jury known, sworn testimony that contradicts the picture being painted

       by the State, denies to the jury its right to determine reasonable doubt---and

       substitutes for that inherent right possessed by [the] jury, the State’s (or a

       court’s) determination of sufficiency and reasonable doubt.” Id. at 15. He also

       asserts that doing so denies him a fair jury trial and the right to confront all

       witnesses against him.


[33]   The State contends that Abney’s claim is waived because he failed to make an

       offer of proof, and that there was simply no information that Acord was selling

       heroin. It also contends that, waiver notwithstanding, the court properly

       excluded statements in the probable cause affidavit because they were hearsay.

       The State also argues that any alleged error was harmless because the

       prosecutor presented substantial independent evidence of Abney’s guilt.


[34]   The record reveals that Sergeant Melton testified that Acord stated that he was

       “only selling his prescription pills and that he wasn’t a heroin dealer” and that

       Acord “sold, I think they were Oxycodones. They were the blue pills, and so

       he wanted to take ownership of selling his own prescription because he needed

       the money, but he didn’t say anything about selling heroin.” Transcript at 63.

       On cross-examination, Sergeant Melton testified that Acord admitted to using

       heroin. During the cross-examination of Officer Martin, Abney’s counsel asked

       if Dullworth, Beck, and Sands had indicated to Sergeant Miller whether they

       had ever bought drugs from Abney, the prosecutor objected on the basis of

       hearsay, and the court sustained the objection. Abney’s counsel referenced

       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 24 of 27
       Officer Martin’s affidavit, the prosecutor objected to defense counsel reading

       from documents not in evidence, and the court sustained the objection.

       Abney’s counsel asked Officer Martin if Acord told him that he sold drugs, the

       prosecutor objected on the basis of hearsay, and the court again sustained the

       objection.


[35]   With respect to Abney’s attempt to reference the affidavit, he does not argue on

       appeal that the court’s ruling to sustain the State’s objection was improper.

       Abney does not point to the record to suggest that he attempted to introduce the

       affidavit and the trial court denied its admission. He also does not argue that

       the testimony he sought from Officer Martin did not constitute hearsay or that

       the court abused its discretion in sustaining the State’s objections on the basis of

       hearsay. Under these circumstances, we cannot say that the trial court abused

       its discretion.


                                                          III.


[36]   The next issue is whether the court erred in entering its sentencing order.

       Abney argues that the sentencing order contains a scrivener’s error with respect

       to Counts 1 and 3 because it states that the court gave him “295 actual days or

       393 credit days, day for day credit, served while awaiting trial and disposition in

       this matter.”       Appellant’s Appendix Volume 3 at 55. He asserts that “‘295’

       time two does not equal ‘395.’” Appellant’s Brief at 15. He also argues that

       “[t]he Trial Court does not make the same error when it later sentences on

       Counts 4 and 5--- ‘295 actual days or 590 credit days. . . .’” Id. The State


       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 25 of 27
       contends that there is no scrivener’s error in the sentencing order, that Abney

       does not receive day-for-day credit on Count 1 because it is a level 3 felony, that

       he received ninety-eight good time credit days, one for every three that he

       served for his level 3 felony sentence, and that when added together, 295 days

       of actual credit plus ninety-eight days of good time credit, Abney correctly

       received 393 days of credit.


[37]   The sentencing order states:


               The Defendant is now sentenced on Count 1 to the Indiana
               Department of Correction for 4380 days, all executed.


               Count 2 is merged with Count 1[.]


               On Count 3 the Defendant is sentenced to the Indiana
               Department of Correction for 2190 days, all executed.


               On Counts 1 and 3, the Defendant shall receive jail time credit in
               the sum of 295 actual days or 393 credit days, day for day credit,
               served while awaiting trial and disposition in this matter.


               On Count 4 the Defendant is sentenced to the Indiana
               Department of Correction for 913 days, all executed.


               On Count 5 the Defendant is sentenced to the Indiana
               Department of Correction for 913 days, all executed.


               On Counts 4 and 5 the Defendant shall receive jail time credit in
               the sum of 295 actual days or 590 credit days, day for day credit,
               served while awaiting trial and disposition in this matter.


       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 26 of 27
       Appellant’s Appendix Volume 3 at 55.


[38]   Ind. Code § 35-50-6-4(b) provides that a person “who is not a credit restricted

       felon; and . . . who is imprisoned for a crime other than a Level 6 felony or

       misdemeanor or imprisoned awaiting trial or sentencing for a crime other than

       a Level 6 felony or misdemeanor . . . is initially assigned to Class B.” Count 1

       was dealing in a narcotic drug as a level 3 felony, and Count 3 was possession

       of cocaine as a level 5 felony. Thus, Abney was initially assigned to Class B

       pursuant to Ind. Code § 35-50-6-4(b). Ind. Code § 35-50-6-3.1(c) provides that

       “[a] person assigned to Class B earns one (1) day of good time credit for every

       three (3) days the person is imprisoned for a crime or confined awaiting trial or

       sentencing.” Abney does not challenge the court’s finding that he had 295

       actual days. A person assigned to Class B would receive one day of good time

       credit for every three days the person is imprisoned. Thus, Abney would have

       received approximately ninety-eight days of good time credit for a total credit

       time of 393 days. Accordingly, we do not disturb the court’s sentencing order.


                                                     Conclusion

[39]   For the foregoing reasons, we affirm Abney’s convictions and sentence.


[40]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 34A02-1608-CR-1746 | June 22, 2017   Page 27 of 27
