                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0321
                                Filed April 6, 2016

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TERMAINE DESHAWN TOLES,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.



      The    defendant     challenges   his   sentence   for   carrying   weapons.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Bridget A.

Chambers, Assistant Attorneys General, for appellee.



      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

      Termaine Toles pleaded guilty to carrying weapons, an aggravated

misdemeanor, in violation of Iowa Code section 724.4(1) (2013). The district

court sentenced Toles to one year in jail, with all but 196 days suspended, and

placed Toles on supervised probation for a period of two years. On appeal,

Toles challenges his sentence.      Specifically, Toles contends the sentencing

judge should have sua sponte recused himself from the matter because the

judge had formed a bias against Toles based on the judge’s prosecution of Toles

in an unrelated matter prior to being appointed to the district court. Toles also

contends his counsel was ineffective in failing to request the sentencing judge

recuse himself from the matter for the same reason.

      It is arguable whether the issue is preserved for our review. The issue

arose during the sentencing hearing, when the judge expressed familiarity with

Toles based in part on the judge’s prior service as a prosecutor:

      All right. Mr. Toles, I used to sit in Mr. Blink’s shoes. I used to sit
      as a prosecutor and do the gun crime, and I can tell you your name
      is a name that has come across my desk as both a prosecutor and
      a judge for a long time. I am not -- your name is not unfamiliar to
      me. The fact that I know your middle name is not a good thing.
      ....
      And not that I gauge individuals, but I do have a tendency to
      recognize when I know somebody’s middle name, it tells me I have
      been -- I have been confronted with their name or presented with
      their name far, far too many times.

Toles did not make a motion for recusal or otherwise raise the issue at the time

of sentencing. See State v. Biddle, 652 N.W.2d 191, 198 (Iowa 2002) (stating it

was “too late” to raise the recusal issue in a motion for new trial after the issue

became apparent during trial); State v. Kelsen, No. 13-0652, 2014 WL 69825, at
                                          3



*1 (Iowa Ct. App. Jan. 9, 2014) (holding the defendant failed to preserve error

where the defendant “did not raise the issue of whether the district associate

judge should have recused himself during the sentencing hearing”); State v.

Harkey, No. 10-0118, 2012 WL 299535, at *11 (Iowa Ct. App. Feb. 1, 2012)

(“Upon our review of the record, nowhere do we find a motion for recusal or even

an objection to the trial judge presiding over the case. We therefore consider this

issue waived.”). However, Toles argues the judge had a duty to recuse himself

on his own motion. See Iowa Code of Judicial Conduct R. 51:2.11 cmt. 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.”). Further,

Toles also raises the issue under the rubric of an ineffective-assistance-of-

counsel claim, which is an exception to traditional error preservation rules. See

State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010). We thus address the issue

on the merits.

         A criminal defendant has a constitutional right to be tried in front of and

sentenced by an impartial judge. See State v. Mann, 512 N.W.2d 528, 532 (Iowa

1994).     The constitutional right is buttressed by the Iowa Code of Judicial

Conduct. “A judge shall uphold and apply the law, and shall perform all duties of

judicial office fairly and impartially.” Iowa Code of Judicial Conduct R. 51:2.2. “A

judge shall disqualify himself or herself in any proceeding in which the judge's

impartiality might reasonably be questioned. . . .” Iowa Code of Judicial Conduct

R. 51:2.11(A).      The Iowa Code of Judicial Conduct enumerates certain

circumstances in which the judge must recuse himself.           See Iowa Code of
                                          4



Judicial Conduct R. 51:2.11(A)(1)-(6).        One such circumstance is when 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.” Iowa Code of

Judicial Conduct R. 51:2.11(A)(1).      The enumerated circumstances are non-

exclusive, however, and the judge is disqualified “whenever the judge’s

impartiality might reasonably be questioned.” Iowa Code of Judicial Conduct R.

51:2.11 cmt. 1. “Before recusal is necessary, actual prejudice must be shown.”

Biddle, 652 N.W.2d at 198.

       The judge also has the duty to decide. The judge is duty-bound to “hear

and decide matters assigned to the judge, except when disqualification is

required by rule 2.11 or other law.” Iowa Code of Judicial Conduct R. 51:2.7.

       Judges must be available to decide the matters that come before
       the court. Although there are times when disqualification is
       necessary to protect the rights of litigants and preserve public
       confidence in the independence, integrity, and impartiality of the
       judiciary, judges must be available to decide matters that come
       before the courts. Unwarranted disqualification may bring public
       disfavor to the court and to the judge personally.

Iowa Code of Judicial Conduct R. 51:2.7 cmt. 1. It has thus been observed that

mere speculation of partiality is not sufficient; “[t]here is as much obligation for a

judge not to recuse when there is no occasion for him to do so as there is for him

to do so when there is.” Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987).

       Toles argues the judge was required to recuse himself because the fact of

prior prosecution, standing alone, raises a reasonable question regarding the

judge’s impartiality.   The record does not support Toles’s claim, as currently

framed. “The burden of showing grounds for recusal is on the party seeking it.”
                                          5



Biddle, 652 N.W.2d at 198. In this case, the judge stated that Toles’s name

came across his desk as a prosecutor and that he was familiar with Toles’s

name. The record does not reflect in what capacity the judge became familiar

with Toles. As a witness in a case? As a frequent recidivist known in the law

enforcement community?        As a supervising attorney in the county attorney’s

office? While it may be true the sentencing judge had, in fact, prosecuted Toles

in an unrelated matter prior to being appointed to the district court, that fact is not

established in this record.

       Even if it could be inferred from the judge’s statement that the judge had,

in fact, prosecuted this defendant in an unrelated matter, the mere fact of prior

prosecution, standing alone, is an insufficient reason for a judge to recuse

himself in contravention of the duty to decide. The Code of Judicial Conduct

does not require such a result; prior prosecution is not one of the enumerated

circumstances requiring recusal set forth in Rule 51:2.11. Our case law does not

require a judge to recuse himself due to prior prosecution of a defendant in an

unrelated matter. The case law supports the contrary conclusion. See State v.

Rater, No. 05-0726, 2006 WL 623645, at *1-2 (Iowa Ct. App. Mar. 15, 2006)

(holding the defendant failed to meet his burden to establish recusal was

required where the sentencing judge was involved in prosecuting an unrelated

case, had “‘no specific recollection of the particulars of any of the cases’ involving

the defendant, but [] ‘certainly ha[d] a recollection’ of the defendant”). Persuasive

authority supports the conclusion that the judge’s prior prosecution of the

defendant in an unrelated matter, standing alone, is not ground for recusal. See
                                         6



Jarrell v. Balkcom, 735 F.2d 1242, 1259 (11th Cir. 1984) (“Petitioner’s present

counsel, however, maintains that the judge’s failure to recuse himself sua sponte

was error. The mere fact that a judge acted as prosecutor in an unrelated case

is insufficient to constitute reversible error.”); Jenkins v. Bordenkircher, 611 F.2d

162, 166 (6th Cir. 1979) (“It has been specifically held that a judge who as United

States Attorney was ‘of counsel’ when a defendant was tried and convicted of

one charge is not disqualified from presiding at the prosecution of the same

defendant for a totally unrelated offense.”); Brown v. State, 424 S.W.3d 288, 292

(Ark. 2012) (“Under our case law, the trial judge’s previous prosecution of

Appellant itself does not require recusal, and Appellant has not demonstrated

actual bias or prejudice.”); People v. Flockhart, 304 P.3d 227, 238 (Colo. 2013)

(“[W]e are unwilling to adopt a per se rule requiring disqualification in every

instance in which a presiding judge, as a former prosecutor, brought unrelated

criminal charges against the defendant in the past. Absent facts demonstrating

some material relationship between the two proceedings, or facts showing that

the past prosecution is relevant to the current case, disqualification is not

invariably required.”); People v. Williams, 499 N.W.2d 404, 408 (Mich Ct. App.

1993) (rejecting challenge where there was no showing of actual bias), overruled

on other grounds by People v. Burgenmeyer, 606 N.W.2d 645, 650 (Mich. 2000);

Gray v. State, 37 So.3d 104, 105-06 (Miss. Ct. App. 2010) (holding

disqualification not required where judge prosecuted defendant in unrelated

matter); People v. Alnutt, 172 A.D.2d 1061, 1061 (N.Y. App. Div. 1991) (holding

trial judge did not commit “reversible error in refusing to recuse himself on the
                                         7



ground that he was a former district attorney who had previously prosecuted

defendant on a felony charge of which defendant had been acquitted”); Beard v.

State, No. 11-03-00184-CR, 2004 WL 1103680, at *1 (Tex. Ct. App. May 13,

2004) (“[T]he rule regarding disqualification of judges is limited to cases in which

the judge has served as counsel at some prior time in the same case now before

the trial court, and it does not apply to situations where the judge served as

counsel in a different case now used for enhancement purposes in the trial

court.”); State v. Dominguez, 914 P.2d 141, 144 (Wash. Ct. App. 1996) (“[T]he

mere fact that the judge earlier acted once for Mr. Dominguez and once against

him, both times in his professional capacity as an attorney, does not establish

potential bias. Generally, disqualification is required when a judge has

participated as a lawyer in the case being adjudicated; however, unless there is a

specific showing of bias, a judge is not disqualified merely because he or she

worked as a lawyer for or against a party in a previous, unrelated case.”); but see

People v. Corelli, 343 N.Y.S. 2d 555, 556 (N.Y. App. Div. 1973) (holding judge

should have recused himself from bench trial where he had previously

prosecuted defendant on an unrelated charge and commented most judges knew

the defendant’s background).

       Toles also argues the judge was biased or prejudiced against Toles, as

evidenced by the judge’s remarks. We disagree. While the judge’s thoughts on

the matter may have been better left unsaid, the judge’s remarks do not reveal

bias or prejudice.     They merely reveal a familiarity with the defendant.

Significantly, the judge imposed sentence only for permissible reasons, stating,
                                         8



       In pronouncing judgment and sentence the Court has considered
       the factors set out in Iowa Code section 907.5. The Court finds the
       sentence to be appropriate based upon your age, your significant
       prior criminal history, the fact that you are employed now, the
       sentencing goals and objectives of the Court, the very serious
       nature of this offense. . . .

The judge also noted the defendant was cooperating with law enforcement on an

unrelated matter. “There is a substantial burden imposed on one who seeks to

prove that the trial judge is not impartial.” State v. Farni, 325 N.W.2d 107, 110

(Iowa 1982). Toles has not carried his substantial burden.

       Ultimately, “[t]he determination of whether the judge should disqualify

himself is committed to the judge’s discretion.” State v. Rhode, 503 N.W.2d 27,

36 (Iowa Ct. App. 1993). “We review a judge’s recusal decision for an abuse of

discretion.” State v. Millsap, 704 N.W.2d 426, 432 (Iowa 2005). “An abuse of

discretion standard implicitly recognizes that a decision ‘is a judgment call on the

part of the trial court.’” Tamco Pork II, LLC v. Heartland Co-op., ___ N.W.2d ___,

2015 WL 10436023, at *4 (Iowa Ct. App. 2015) (quoting State v. Rodriquez, 636

N.W.2d 234, 240 (Iowa 2001)). “In other words, there is some play in the joints,

and the reviewing court generally will not disturb the district court’s decision

unless it is based on a ground or reason that is clearly untenable or when the

court’s discretion is exercised to a clearly unreasonable degree.” Id. “A ground

or reason is untenable when it is not supported by substantial evidence or when

it is based on an erroneous application of the law.” Millsap, 704 N.W.2d at 432.

The law does not require a judge to recuse himself from a case merely because

the judge prosecuted the defendant in an unrelated matter or was familiar with

the defendant from an unrelated matter. The record does not reflect the judge
                                         9



had actual prejudice or bias against this particular defendant. The record does

not reflect anything more than the sentencing judge was familiar with the

defendant because of the judge’s past work as a prosecutor. We cannot say the

district court abused its considerable discretion in failing to raise the issue of

disqualification on its own motion.

       Toles also contends his counsel was ineffective in failing to request the

sentencing judge recuse himself. To establish a claim of ineffective assistance of

counsel, Toles must show that his “trial counsel failed to perform an essential

duty and that this failure resulted in prejudice.” State v. Kress, 636 N.W.2d 12,

20 (Iowa 2001).     Because we conclude the judge had no reason to recuse

himself, counsel did not fail to perform an essential duty in foregoing a motion to

disqualify the sentencing judge.      Accordingly, Toles’s claim of ineffective

assistance of counsel fails. See State v. Dudley, 766 N.W.2d 606, 620 (Iowa

2009) (“[C]ounsel has no duty to raise an issue that has no merit.”).

       For the foregoing reasons, we affirm the defendant’s sentence.

       AFFIRMED.
