Jeffrey R. Chaney v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 29, 2016
• Docket: 73A01-1604-CR-767
• Status: Published

Opinion

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