Robert Edward Luther, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 13, 2020
• Docket: 19A-CR-2542
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Apr 13 2020, 10:19 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffery Haupt Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana

Sierra A. Murray Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Robert Edward Luther, Jr., April 13, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2542 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Margot F. Reagan, Appellee-Plaintiff Judge The Honorable Julie Verheye, Magistrate Trial Court Cause No. 71D04-1803-CM-948

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020 Page 1 of 5 [1] Robert Edward Luther, Jr. was convicted, following a bench trial, of Class A

misdemeanor conversion. Luther appeals from the denial of his oral motion for

the recusal of the trial judge, who was his lawyer in two unrelated cases about

twenty years prior.

[2] We affirm.

Facts & Procedural History

[3] On March 7, 2018, the State charged Luther with Class A misdemeanor

conversion, alleging that he had knowingly or intentionally exerted

unauthorized control over property at a Target store. After continuances

related to Luther’s failure to appear on two separate occasions, resulting in the

issuance of warrants, his bench trial commenced on October 10, 2019.

[4] At the beginning of the trial, Luther’s counsel made an oral motion for the

sitting magistrate to recuse herself due to her prior attorney-client relationship

with Luther “on two cases back in 1999 and 2000.” Transcript at 2. The

magistrate responded that she had “absolutely no recollection” of the cases and

did not even remember Luther. Id. The magistrate then indicated, “I don’t feel

the need to [recuse].” Id. Defense counsel responded, “Well then, we’ll go

forward then.” Id.

[5] Following the presentation of evidence, the trial court found Luther guilty as

charged and sentenced him to sixty days to be served through St. Joseph

County Community Corrections. Luther now appeals.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020 Page 2 of 5 Discussion & Decision

[6] Luther claims that he was “denied a fair and impartial trial when the trial court

failed to properly address whether the trial court magistrate’s prior

representation of him would cause reasonable minds to be able to determine

whether her impartiality would be impaired.” Appellant’s Brief at 7. His

appellate argument is improperly focused on the Indiana Code of Judicial

Conduct (the Code) and disciplinary actions rather than reversible error.

[7] As our Supreme Court has recognized, it is “not reversible error, absent a

showing of prejudice, for a judge to refuse to recuse [her]self in a criminal case

when [s]he had previously represented the defendant in an unrelated criminal

matter.” Matter of Edwards, 694 N.E.2d 701, 710 (Ind. 1998) (citing Hammond v.

State, 594 N.E.2d 509, 514 (Ind. App. 1992), trans. denied); see also Smith v. State,

477 N.E.2d 857, 864 (Ind. 1985) (“The record must show actual bias and

prejudice against the defendant before a conviction will be reversed on the

ground that the trial judge should have been so disqualified.”). “Whether

presiding over the case might nevertheless be violative of the Code of Judicial

Conduct is, however, a related but separate question from whether it might

constitute reversible error.” Matter of Edwards, 694 N.E.2d at 710. Here, we are

tasked with addressing only the former question.

[8] “The law presumes that a judge is unbiased and unprejudiced.” Garland v.

State, 788 N.E.2d 425, 433 (Ind. 2003). “Ordinarily in a criminal case, parties

seeking to overcome the presumption of judicial impartiality must move for a

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020 Page 3 of 5 change of judge under Rule 12 of the Indiana Rules of Criminal Procedure.”

Mathews v. State, 64 N.E.3d 1250, 1253 (Ind. Ct. App. 2016), trans. denied. This

rule mandates specific timelines and procedures when moving for a change of

judge. 1 See Flowers v. State, 738 N.E.2d 1051, 1059 (Ind. 2000) (“The law is

settled that a defendant is not entitled to a change of judge where the mandates

of Criminal Rule 12 have not been followed.”).

[9] Luther does not, and cannot, contend that he complied with the mandates of

Crim. R. 12. Thus, he was clearly not entitled to a change of judge in this case.

See Flowers, 738 N.E.2d at 1059.

[10] Moreover, we reject Luther’s argument that he is nonetheless entitled to relief

because the Code required the magistrate to recuse herself. Rule 2.11(A) of the

Code provides that “[a] judge shall disqualify himself or herself in any

proceeding in which the judge’s impartiality might reasonably be questioned[.]”

Luther does not allege actual bias or prejudice against him on the magistrate’s

part, and the record reflects no such bias or prejudice. Rather, he argues that

her impartiality might have been reasonably questioned considering her former

1 Crim. R. 12(B) provides:

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. Further, pursuant to Crim. R. 12(D), the motion must be made within thirty days of the initial hearing unless due diligence could not have discovered the reasons for recusal within that period.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020 Page 4 of 5 representation of him had the magistrate “t[aken] the time to look into possible

issues that may impact the parties’ arguments towards disqualification.”

Appellant’s Brief at 9. The proposition underlying Luther’s arguments has been

directly rejected by this court in Mathews, where we held that the Code does not

supply a freestanding mechanism for relief, independent of a properly brought

Crim. R. 12 motion. Mathews, 64 N.E.3d at 1255 (“It is undeniable that the

Code fixes a judge’s obligations. We hold, however, that those obligations do

not create freestanding rights of enforcement in private parties.”). Accordingly,

Luther is not entitled to consideration of his freestanding claim for recusal

under the Code. See id. at 1256.

[11] Judgment affirmed.

Bailey, J. and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020 Page 5 of 5