FILED Jun 22 2017, 5:57 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 Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
William Patrick Cheek, June 22, 2017
Appellant-Defendant, Court of Appeals Case No. 34A04-1610-CR-2326 v. Appeal from the Howard Superior Court. The Honorable William C. Menges, State of Indiana, Jr., Judge. Appellee-Plaintiff. Trial Court Cause No. 34D01-1510-F5-894
Shepard, Senior Judge
[1] Appellant William Patrick Cheek contends that the trial judge in his case
should have recused in light of the Prosecuting Attorney’s participation on the
judge’s re-election committee. Like our colleagues in the parallel appeal of
Abney v. State, we conclude that the Code of Judicial Conduct did not require
recusal.
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 1 of 11 Facts and Procedural History [2] In October 2015, the State charged Cheek with three felony drug offenses.
After Cheek failed to appear for a February 2016 pre-trial conference, the State
charged him with the additional offense of failure to appear. At his jury trial on
that charge, Cheek filed a motion to recuse. Once the jury was selected, but out
of its presence, the trial court held a hearing on Cheek’s motion and thereafter
denied the motion. Cheek was found guilty of failing to appear, a Level 6 1 felony, and was sentenced to 730 days executed. He now appeals the denial of
his motion to recuse, his conviction, and his sentence.
Discussion and Decision I. Recusal of Trial Judge [3] Cheek contends that the fact that the Howard County Prosecutor was on Judge
William Menges’ re-election committee demonstrates a personal bias by Judge
Menges such that his recusal was required.
[4] This Court has recently described the standard for our review of decisions on
motions to recuse. Writing for a unanimous panel, Judge Brown said:
A ruling upon a motion to recuse rests within the sound discretion of the trial judge and will be reversed only upon a showing of abuse of that discretion. An abuse of discretion occurs when the trial court’s decision is against the logic and
1 Ind. Code § 35-44.1-2-9 (2014).
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 2 of 11 effect of the facts and circumstances before it. When reviewing a trial judge’s decision not to disqualify h[im]self, we presume that the trial judge is unbiased. ‘In order to overcome that presumption, the appellant must demonstrate actual personal bias.’ In addition, 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. Upon review of a judge’s failure to recuse, we will assume that a judge would have complied with the obligation to recuse had there been any reasonable question concerning impartiality, unless we discern circumstances which support a contrary conclusion. Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61, 63-64 (Ind. Ct. App. 2012)
(citations omitted).
[5] Although the Indiana Code of Judicial Conduct fixes a judge’s obligations,
these obligations do not create a freestanding right of enforcement for private
parties; rather, each judge is to enforce these obligations against himself or
herself. Mathews v. State, 64 N.E.3d 1250 (Ind. Ct. App. 2016), trans. denied.
Yet, we note the relevant canons as a backdrop to the issue at hand. Canon 2
directs that Indiana judges perform the duties of their judicial office impartially,
competently, and diligently. More particularly, Rule 2.11 concerns
disqualification and provides in relevant 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.
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 3 of 11 [6] Further, Canon 4 commands that 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. Specifically, Rule
4.2(A) provides, in part:
(A) A judicial candidate* in a partisan, nonpartisan, or retention public election* shall: (1) act at all times in a manner consistent with the independence,* integrity,* and impartiality* of the judiciary . . . . [7] Indiana has drawn these rules almost entirely from the ABA’s Model Code of
Judicial Conduct, so we often find guidance in decisions by courts in other
states that have addressed disputes over attorney participation in campaign
activities. When evaluating a motion for recusal based upon counsel’s
campaign-related activities, the general principle is that the timing, nature, and
extent of participation in a judge’s campaign are relevant factors to consider.
Rivera v. Bosque, 188 So. 3d 889, 41 Fla. L. Weekly D284 (Fla. Dist. Ct. App.
2016) (stating that involvement of relatively limited nature in judge’s campaign
is not grounds for recusal).
[8] With this standard in mind, we examine cases across the continuum of counsel
participation in judge’s campaign activities. At one end of the continuum,
representing substantial campaign involvement by counsel, rest cases like Dell v.
Dell, 829 So. 2d 969, 27 Fla. L. Weekly D2370 (Fla. Dist. Ct. App. 2002). In
Dell, the Florida Court of Appeals held that the trial judge should have granted
the motion for disqualification where wife’s attorney was one of only six
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 4 of 11 members of the judge’s re-election committee that was engaged in an ongoing
campaign for the judge’s re-election while the case was pending.
[9] Similarly, in Post v. State, 298 Ga. 241, 779 S.E.2d 624 (2015), the Georgia
Supreme Court ordered recusal. The court acknowledged that “[a]llegations
that a party or a party’s attorney made unexceptional campaign contributions
or provided commonplace forms of non-monetary support during a judge’s
election campaign ordinarily are insufficient to require referring a recusal
motion for reassignment to another judge.” Id. at 631. Post’s motion, however,
demonstrated that the district attorney, whose office was prosecuting Post, was
serving as the treasurer of the active election campaign of the judge presiding
over Post’s case and that the official address of the election campaign was the
district attorney’s office.
[10] At the other end of the continuum, representing pretty modest involvement by
counsel, is Zaias v.
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FILED Jun 22 2017, 5:57 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 Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
William Patrick Cheek, June 22, 2017
Appellant-Defendant, Court of Appeals Case No. 34A04-1610-CR-2326 v. Appeal from the Howard Superior Court. The Honorable William C. Menges, State of Indiana, Jr., Judge. Appellee-Plaintiff. Trial Court Cause No. 34D01-1510-F5-894
Shepard, Senior Judge
[1] Appellant William Patrick Cheek contends that the trial judge in his case
should have recused in light of the Prosecuting Attorney’s participation on the
judge’s re-election committee. Like our colleagues in the parallel appeal of
Abney v. State, we conclude that the Code of Judicial Conduct did not require
recusal.
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 1 of 11 Facts and Procedural History [2] In October 2015, the State charged Cheek with three felony drug offenses.
After Cheek failed to appear for a February 2016 pre-trial conference, the State
charged him with the additional offense of failure to appear. At his jury trial on
that charge, Cheek filed a motion to recuse. Once the jury was selected, but out
of its presence, the trial court held a hearing on Cheek’s motion and thereafter
denied the motion. Cheek was found guilty of failing to appear, a Level 6 1 felony, and was sentenced to 730 days executed. He now appeals the denial of
his motion to recuse, his conviction, and his sentence.
Discussion and Decision I. Recusal of Trial Judge [3] Cheek contends that the fact that the Howard County Prosecutor was on Judge
William Menges’ re-election committee demonstrates a personal bias by Judge
Menges such that his recusal was required.
[4] This Court has recently described the standard for our review of decisions on
motions to recuse. Writing for a unanimous panel, Judge Brown said:
A ruling upon a motion to recuse rests within the sound discretion of the trial judge and will be reversed only upon a showing of abuse of that discretion. An abuse of discretion occurs when the trial court’s decision is against the logic and
1 Ind. Code § 35-44.1-2-9 (2014).
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 2 of 11 effect of the facts and circumstances before it. When reviewing a trial judge’s decision not to disqualify h[im]self, we presume that the trial judge is unbiased. ‘In order to overcome that presumption, the appellant must demonstrate actual personal bias.’ In addition, 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. Upon review of a judge’s failure to recuse, we will assume that a judge would have complied with the obligation to recuse had there been any reasonable question concerning impartiality, unless we discern circumstances which support a contrary conclusion. Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61, 63-64 (Ind. Ct. App. 2012)
(citations omitted).
[5] Although the Indiana Code of Judicial Conduct fixes a judge’s obligations,
these obligations do not create a freestanding right of enforcement for private
parties; rather, each judge is to enforce these obligations against himself or
herself. Mathews v. State, 64 N.E.3d 1250 (Ind. Ct. App. 2016), trans. denied.
Yet, we note the relevant canons as a backdrop to the issue at hand. Canon 2
directs that Indiana judges perform the duties of their judicial office impartially,
competently, and diligently. More particularly, Rule 2.11 concerns
disqualification and provides in relevant 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.
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 3 of 11 [6] Further, Canon 4 commands that 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. Specifically, Rule
4.2(A) provides, in part:
(A) A judicial candidate* in a partisan, nonpartisan, or retention public election* shall: (1) act at all times in a manner consistent with the independence,* integrity,* and impartiality* of the judiciary . . . . [7] Indiana has drawn these rules almost entirely from the ABA’s Model Code of
Judicial Conduct, so we often find guidance in decisions by courts in other
states that have addressed disputes over attorney participation in campaign
activities. When evaluating a motion for recusal based upon counsel’s
campaign-related activities, the general principle is that the timing, nature, and
extent of participation in a judge’s campaign are relevant factors to consider.
Rivera v. Bosque, 188 So. 3d 889, 41 Fla. L. Weekly D284 (Fla. Dist. Ct. App.
2016) (stating that involvement of relatively limited nature in judge’s campaign
is not grounds for recusal).
[8] With this standard in mind, we examine cases across the continuum of counsel
participation in judge’s campaign activities. At one end of the continuum,
representing substantial campaign involvement by counsel, rest cases like Dell v.
Dell, 829 So. 2d 969, 27 Fla. L. Weekly D2370 (Fla. Dist. Ct. App. 2002). In
Dell, the Florida Court of Appeals held that the trial judge should have granted
the motion for disqualification where wife’s attorney was one of only six
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 4 of 11 members of the judge’s re-election committee that was engaged in an ongoing
campaign for the judge’s re-election while the case was pending.
[9] Similarly, in Post v. State, 298 Ga. 241, 779 S.E.2d 624 (2015), the Georgia
Supreme Court ordered recusal. The court acknowledged that “[a]llegations
that a party or a party’s attorney made unexceptional campaign contributions
or provided commonplace forms of non-monetary support during a judge’s
election campaign ordinarily are insufficient to require referring a recusal
motion for reassignment to another judge.” Id. at 631. Post’s motion, however,
demonstrated that the district attorney, whose office was prosecuting Post, was
serving as the treasurer of the active election campaign of the judge presiding
over Post’s case and that the official address of the election campaign was the
district attorney’s office.
[10] At the other end of the continuum, representing pretty modest involvement by
counsel, is Zaias v. Kaye, 643 So. 2d 687, 19 Fla. L. Weekly D2166 (Fla. Dist.
Ct. App. 1994). In Zaias, the judge denied a motion for disqualification that
was based on opposing counsel’s contribution to the judge’s re-election
campaign and service as one of over sixty members on the campaign
committee. The appellate court denied Zaias’ appeal, stating that “[t]he fact
that an attorney made a campaign contribution to a judge or served on a judge’s
campaign committee does not, without more, require disqualification.” Id.
Rather, sufficient grounds for disqualification include “a specific and substantial
political relationship between the parties.” Id.
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 5 of 11 [11] This Court’s decision in Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61, lies
along the same continuum, but the facts are closer to those in Dell and Post.
Counsel for Kiang served as chairman of the judge’s 2008 election committee.
In holding that recusal of the judge was warranted, Judge Brown found that
counsel’s service as chairman was not so remote in time “as to dispel the
appearance of an impropriety such that a reasonable person would have a
rational basis for doubting [the judge’s] impartiality.” Id. at 66. Moreover, the
Court found particularly relevant the fact that counsel’s appearance in the
matter was in February 2009, just three months after the election and that the
motion to recuse was filed within two years of the election.
[12] This brings us to the present case and to Abney v. State, No. 34A02-1608-CR-
1746 (Ind. Ct. App. June 22, 2017). Cheek’s appeal is a companion to Abney’s,
and this opinion is issued contemporaneously with Judge Brown’s opinion in
Abney.
[13] Abney filed a motion to recuse in the same court on the same basis as Cheek on
June 23, 2016, just two months prior to Cheek’s filing on August 22, 2016. At
the hearing on Cheek’s recusal motion, he referenced the arguments heard by
the court at the hearing on Abney’s similar motion. The record in Abney, which
contains a newspaper article admitted as Defendant’s Exhibit A, reveals that the
Prosecutor, although a member of the judge’s advisory committee for his re-
election campaign, had yet to perform any election committee activities on
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 6 of 11 2 behalf of the judge as of June 2016. Moreover, the Prosecutor and the chief
public defender were both members of his campaign advisory committee, which
the judge regarded as basically nothing more than a public endorsement.
[14] Based on the circumstances of this case and the decisions of the cases we have
discussed above, we cannot say that an objective person, knowledgeable of all
the circumstances, would have a rational basis for doubting the judge’s
impartiality.
II. Sufficiency of the Evidence [15] When we review a sufficiency challenge, we neither reweigh the evidence nor
judge the credibility of the witnesses. Sandleben v. State, 29 N.E.3d 126 (Ind. Ct.
App. 2015), trans. denied. Instead, we consider only the evidence most favorable
to the verdict and any reasonable inferences drawn therefrom. Id. If there is
substantial evidence of probative value from which a reasonable fact-finder
could have found the defendant guilty beyond a reasonable doubt, the verdict
will not be disturbed. Labarr v. State, 36 N.E.3d 501 (Ind. Ct. App. 2015).
[16] Indiana Code section 35-44.1-2-9 provides:
(a) A person who, having been released from lawful detention on condition that the person appear at a specified time and place in connection with a charge of a crime, intentionally fails to appear
2 We take judicial notice of the record in Abney pursuant to Indiana Rule of Evidence 201(a)(2)(C). See also Moxley v. Ind. Nat’l Bank, 443 N.E.2d 374, 375 n.1 (Ind. Ct. App. 1982) (taking judicial notice of the record in a related appeal pending at the time in the Court of Appeals).
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 7 of 11 at that time and place commits failure to appear, a Class A misdemeanor. However, the offense is a Level 6 felony if the charge was a felony charge. Cheek contends that the State failed to present sufficient evidence showing that
he was released from lawful detention on the condition that he appear at a
specified time and place in connection with the charge of a crime.
[17] At trial, a copy of the charging information for Cheek’s felony drug charges and
a certified copy of the Chronological Case Summary (CCS) were admitted.
The CCS shows that on November 19, 2015, Cheek’s counsel appeared and
moved to continue the pre-trial conference to January 7, 2016. Cheek was in
jail at that point, though he was released on his own recognizance three days
later by agreement of the parties. Ex. Vol. pp. 16-17.
[18] On January 7, 2016, Cheek was present in court for the pre-trial conference.
The Agreed Entry on Pre-Trial Conference from that day was signed by the
deputy prosecutor, by defense counsel, and by Cheek. The last few sentences
say: “On Motion of the Defendant, the Pre-Trial Conference is continued to
February 25, 2016 at 9:00 AM, and the Trial is continued to the [sic] March 11,
2016 at 9:00 AM. The Court sets a plea cut off date for the [sic] February 18,
2016 at 4:00 P.M. The Defendant is ordered to reappear for Pretrial and Jury
Trial, without further notice.” Id. at 11.
[19] The CCS entry of February 25, 2016 shows that a pre-trial conference was held
and that Cheek failed to appear.
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 8 of 11 [20] The terms “release on own recognizance” and “personal recognizance” have
been defined as: “The pretrial release of an arrested person who promises, usu.
in writing but without supplying a surety or posting bond, to appear for trial at a
later date” and “The release of a defendant in a criminal case in which the court
takes the defendant’s word that he or she will appear for a scheduled matter or
when told to appear.” BLACK’S LAW DICTIONARY (10th ed. 2014). Here,
Cheek was released on his own recognizance upon agreement that he would
reappear without formal notice, he was notified in open court about the date he
should reappear, and he did not. The State presented sufficient evidence to
sustain Cheek’s conviction on the offense of failure to appear.
III. Inappropriate Sentence [21] Although a trial court may have acted within its lawful discretion in imposing a
sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize
independent appellate review and revision of sentences. Indiana Appellate
Rule 7(B) provides that we may revise a sentence if, after due consideration of
the trial court’s decision, we determine that the sentence is inappropriate in
light of the nature of the offense and the character of the offender. The
defendant bears the burden of persuading the appellate court that his or her
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[22] To assess whether the sentence is inappropriate, we look first to the statutory
range established for the class of the offense. Here, the offense is a Level 6
felony, for which the advisory sentence is one year with a minimum sentence of
six months and a maximum of two and one-half years. Ind. Code § 35-50-2-7 Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 9 of 11 (2014). Cheek was sentenced to 730 days — essentially two years, which is less
than the maximum allowed by the statute.
[23] Next, we look to the nature of the offense and the character of the offender. As
to the nature of the current offense, we note that Cheek was out of jail on his
own recognizance when he failed to appear for a pre-trial conference on felony
drug charges that had been continued at his request.
[24] With regard to the character of the offender, we observe that Cheek’s criminal
history is modest but not insignificant. He was placed on informal probation as
a juvenile in 1996 for an offense that would constitute theft if committed by an
adult. As an adult, Cheek has accrued two misdemeanor convictions for
alcohol-related offenses and a misdemeanor conviction of battery resulting in
bodily injury. Most notably, while out of jail on his own recognizance in the
present case, Cheek used amphetamines on a daily basis and was charged with
felony possession of methamphetamine, misdemeanor theft, misdemeanor false
informing, and misdemeanor possession of paraphernalia.
[25] Cheek’s continued drug use reflects poorly on his judgment and any prior
attempts at rehabilitation. We cannot say that his sentence is inappropriate in
light of the nature of the offense or his character.
Conclusion [26] For the reasons stated, we conclude the trial court properly denied Cheek’s
motion to recuse, the State presented sufficient evidence to sustain Cheek’s
conviction, and the sentence was not inappropriate. Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 10 of 11 [27] Affirmed.
Riley, J., and Brown, J., concur.
Court of Appeals of Indiana | Opinion 34A04-1610-CR-2326 | June 22, 2017 Page 11 of 11