Joseph C. Lehman v. State of Indiana ( 2016 )

FILED
May 31 2016, 5:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Joseph C. Lehman Gregory F. Zoeller
Goshen, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Joseph C. Lehman, May 31, 2016
Appellant-Defendant, Court of Appeals Case No.
20A03-1511-CR-1963
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable David C.
Appellee-Plaintiff Bonfiglio, Judge
Trial Court Cause No.
20D06-1412-CM-2042
Bradford, Judge.
Case Summary
[1] In February of 2014, the Indiana Supreme Court suspended Appellant-
Defendant Joseph Lehman from practicing law in the state of Indiana for not
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less than two years. In the year following his suspension, Lehman continued to
provide various legal services to new and existing clients. Appellee-Plaintiff the
State of Indiana (“the State”) subsequently charged Lehman with three counts
of Class B misdemeanor practicing law by a non-attorney. After a bench trial,
Lehman was found guilty as charged. Lehman raises three contentions for our
review on appeal: (1) whether the trial court erred in denying his request for
change of judge; (2) whether Lehman waived his right to a trial by jury; and (3)
whether there was sufficient evidence to support his convictions. We affirm the
trial court in all respects.
Facts and Procedural History
i. Jim Marlow
[2] On February 19, 2014, the Indiana Supreme Court suspended Lehman from the
practice of law for “not less than two years, without automatic reinstatement,
beginning April 3, 2014.” Ex. 2, p. 3. In early 2014, Jim Marlow hired
Lehman for $800 to represent him in a divorce. When asked about his
suspension, Lehman told Marlow that “it was nothing to worry about that he
was going to appeal it and we’d have no issues.” Tr. p. 9.
[3] Attorney Vincent Campiti represented Marlow’s wife in the divorce and was
not aware of Lehman’s suspension. On April 9 and 10, 2014, Lehman and
Campiti exchanged several emails in which the two attempted to finalize a
settlement agreement between Marlow and his wife. On April 10, Lehman
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emailed Campiti asking him to “review the changes I made to meet your issues.
If acceptable, have your client sign, and I’ll propose that Mr. Marlow accept
those changes.” Ex. 3, p. 4. On April 22, Lehman sent Campiti an email
which read, “Mr. Marlow will be reviewing the agreement tomorrow at 3:30
PM.” Ex. 3, p. 7. Between April 21 and 25, phone records indicate that
Marlow and Lehman exchanged several calls and text messages. According to
Marlow, Lehman wished to meet and review documents pertaining to his
divorce. Marlow ultimately decided to “just walk[] away,” declined to meet
with Lehman, and hired another attorney. Tr. p. 9.
ii. Neredya Alvarez
[4] In October of 2014, Neredya Alvarez was looking for an attorney to represent
her in a divorce and was referred to Lehman by a co-worker. Alvarez called
Lehman who arranged to meet her at a restaurant in Goshen. Alvarez paid
Lehman an $80 consultation fee and, when she asked for a receipt, Lehman
wrote one on the back of a business card. The front of the business card read
“Joseph C. Lehman, Attorney at Law” and provided a Goshen address. Ex. 5.
[5] After speaking for approximately five to fifteen minutes about Alvarez’s legal
issues, Lehman told Alvarez “Well I can’t help you in Court because I’m not
supposed to go to Court, but I can complete the paperwork for you,” and stated
that it would cost $1000 to complete the paperwork. Tr. p. 38. Alvarez was
upset that Lehman did not tell her of his inability to go to court prior to setting
up the meeting. Lehman never informed Alvarez that he was suspended from
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practicing law. Alvarez met with another attorney shortly thereafter. When the
attorney learned of Alvarez’s dealings with Lehman, he informed Alvarez of
Lehman’s suspension and assisted her in reporting the misconduct. On October
28, 2014, Alvarez met with Goshen police who suggested that she ask Lehman
to return the $80 consultation fee. Ultimately, Lehman returned the money.
iii. Innocente Lacan
[6] In November of 2014, Innocente Lacan hired Lehman to re-title some real
estate in order to remove his ex-wife’s name from the title.1 On November 22,
2014, Lacan and Lehman met at a public library and agreed on a fee of $50 for
preparing the document needed to re-title the property. Lehman prepared a
quitclaim deed for Lacan on the same day, Lacan paid Lehman $50, and
Lehman gave Lacan a receipt bearing the initials JL. The quitclaim deed and
receipt were admitted into evidence at trial. Lehman did not inform Lacan that
his license was suspended and Lacan believed he was hiring an attorney when
he contracted with Lehman.
[7] Lacan’s ex-wife refused to sign the deed and Lehman explained how Lacan
could go about getting the deed filed through the clerk of courts without his ex-
wife’s signature. Lacan took the deed to the Elkhart County clerk’s office and
gave it to Patti Miller, the clerical supervisor at the office. At some point,
1
Lehman had represented Lacan in the divorce approximately ten years earlier.
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Lacan informed Miller that Lehman had prepared his paperwork. Miller was
aware that Lehman was suspended from practicing law and notified police.
iv. Procedural History
[8] On December 19, 2014, the State charged Lehman with two counts of Class B
misdemeanor practicing law by a non-attorney. The State later amended its
charging information to include a third count of practicing law by a non-
attorney. On January 26, 2015, Lehman filed a motion for a change of judge.
After a March 18, 2015 hearing, the trial court denied Lehman’s motion. On
April 22, 2015, the trial court held a hearing at which Lehman requested a jury
trial and motioned for severance. On May 8, 2015, the trial court found that
Lehman had waived his right to a jury trial and denied his motion for
severance. A bench trial was held on October 5, 2015, and Lehman was found
guilty as charged and sentenced to 540 days suspended to one year of
probation.
Discussion and Decision
I. Change of Judge
[9] Lehman argues that the trial judge was prejudiced against him and erred in
denying his motion for change of judge. Indiana Criminal Procedure Rule
12(B) provides as follows:
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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.
“[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. Reversal will require a showing which
leaves us with a definite and firm conviction that a mistake has been made.”
Sturgeon v. State, 719 N.E.2d 1173, 1182 (Ind. 1999).
[10] Lehman’s affidavit for change of judge reads as follows:
1. In 2007, a fellow attorney canvassed Judge Bonfiglio regarding
his perception of me and was told that he had no pleasant
experiences with me, in that I often wait until the day before a
hearing to request a continuance.
2. Short notice continuances of various types of hearings are not
unknown, even in medium sized firms, much less for those of us
in solo practice.
3. And it is also not unknown for an attorney calendar to open up
at very short notice, so for the court to infer that I was gaming
the system by showing up in Juvenile Court the next day, is not
fair.
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4. I have no problem with judges joking about a mistake in a
translation into/from Spanish, but it seems to show just an
attitude against me that has roots from back even before I ran for
judge against George Biddlecome, whom I had never met, but
who would not even shake my extended hand.
5. Now, at the end of March, when I appeared in court, for an
update on a case to be set for trial, given that I had to close my
practice on April 3, 2014, I could not understand Judge
Bonfiglio’s attitude when I stated that I would have been able to
be a very good trial attorney for the defendant.
6. Even though I have always shown respect for all judges in this
county, there have been negatives thrown against me for many
years, by certain members of the legal community, which I
understand is part of the territory, here in Elkart county.
7. Finally, since I do not know Judge Bonfiglio socially or
personally, my perceptions might be incorrect, but I nevertheless
must infer a worst case scenario regarding potential bias or
prejudice.
Appellant’s Amended App. p. 24. According to the chronological case
summary (“CCS”), the trial court denied Lehman’s motion for change of judge
because “there [were] no cogent statements in [his] Affidavit for Change of
Judge that would support a rational inference of bias or prejudice by this
judicial officer. See Order for further.” Appellant’s App. p. 3. However,
Lehman did not include the trial court’s written order in his appellate appendix.
The State argues that, due to this failure, Lehman has provided an incomplete
record for review in violation of Indiana Appellate Rule 50(B), and thus has
waived this issue for review. While it is unfortunate that we do not have the
trial court’s order, we prefer to resolve matters on the merits where possible and
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find the record sufficient to do so here. See Rexroad v. Greenwood Motor Lines,
Inc., 36 N.E.3d 1181, 1183 (Ind. Ct. App. 2015) (“where possible, we prefer to
address cases on their merits”).
[11] “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 v.
State, 856 N.E.2d 1211, 1216 (Ind. 2006) (quoting Sturgeon, 719 N.E.2d at
1181). Even assuming Lehman’s affidavit is entirely accurate, it creates no
rational inference of prejudice.
[12] Paragraph one indicates that, as of nine years ago, Judge Bonfiglio had “no
pleasant experiences” with Lehman. This is a far cry from bias. Paragraphs
two and three reveal Lehman’s general opinions on typical attorney practice.
These statements are not rooted in “historical fact,” as required by Criminal
Rule 12(B), and merely offer possible negative inferences the trial court could
have drawn from his actions in previous cases. See Sturgeon, 719 N.E.2d at
1181 (“movant’s belief in the judge’s bias [] is not a ‘historical fact’ as required
by Criminal Rule 12(B)”). Likewise, paragraphs four and six make no reference
to Judge Bonfiglio and seem to focus on disparaging remarks made by other
members of the legal community. Accordingly, these assertions are irrelevant.
Paragraph five is incredibly vague, stating merely that Judge Bonfiglio had an
“attitude” with Lehman on one occasion. Finally, Lehman notes that he does
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not know Judge Bonfiglio personally and that his allegations of bias are merely
speculation. We find that Lehman’s affidavit is not rooted in historical facts
and creates no rational inference of bias. Accordingly, the trial court did not err
in denying Lehman’s motion.
II. Trial by Jury
[13] Indiana Criminal Procedure Rule 22 provides as follows:
A defendant charged with a misdemeanor may demand trial by
jury by filing a written demand therefor not later than ten (10)
days before his first scheduled trial date. The failure of a
defendant to demand a trial by jury as required by this rule shall
constitute a waiver by him of trial by jury unless the defendant
has not had at least fifteen (15) days advance notice of his
scheduled trial date and of the consequences of his failure to
demand a trial by jury.
[14] On January 7, 2015, Lehman received and signed his advisement of rights and
penalties which included the right “To a speedy and public trial by jury. In
misdemeanors cases defendant MUST file a written request [] for a jury trial at
least ten (10) days before the Omnibus date.” Appellant’s Amended App. p. 20.
Indiana Code section 35-36-8-1(c) provides that
(c) The omnibus date for persons charged only with one (1) or
more misdemeanors:
(1) must be set by the judicial officer at the completion of the
initial hearing;
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(2) must be no earlier than thirty (30) days (unless the
defendant and the prosecuting attorney agree to an earlier
date), and no later than sixty-five (65) days, after the initial
hearing; and
(3) is the trial date.
[15] The CCS shows that, at the March 18, 2015 hearing, the trial court set the
omnibus date for April 22, 2015. Accordingly, Lehman was required to file a
request for jury trial by April 12, 2015 or waive that right. Ind. Crim. Proc. R.
22. Lehman filed a request for jury trial on April 22, 2015. Accordingly, he
waived his right to a jury trial. Lehman’s argument that he was unaware that
April 22 was considered his first scheduled trial date for Rule 22 purposes lacks
merit. Ignorance is no excuse for failing to comply with the court’s rules. See
generally Evolga v. State, 519 N.E.2d 532, 534 (Ind. 1988) (“Ignorance of the
court’s procedural rules is not a valid reason for being granted permission to file
a belated appeal.”).
III. Sufficiency of Evidence
[16] Lehman argues that there was insufficient evidence to support his convictions
for practicing law by a non-attorney.
When reviewing the sufficiency of the evidence, we consider only
the probative evidence and reasonable inferences supporting the
verdict. Mork v. State, 912 N.E.2d 408, 411 (Ind. Ct. App. 2009)
(citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)). We do
not reweigh the evidence or assess witness credibility. Id. We
consider conflicting evidence most favorably to the trial court’s
ruling. Id. We will affirm the conviction unless no reasonable
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fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id.Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010).
[17] To prove that Lehman was guilty of practicing law by a non-attorney, the State
was required to show that Lehman (1) professed to be a practicing attorney, (2)
conducted the trial of a case in a court in Indiana, or (3) engaged in the business
of a practicing lawyer, without being admitted as an attorney by the Indiana
Supreme Court. Ind. Code § 33-43-2-1. Lehman concedes that he was not
permitted to practice law after his suspension date of April 3, 2014. However,
he argues that the evidence is insufficient because he only provided “general
legal information” to Lacan and Alvarez, and did not speak to Marlow after his
suspension date.
[18] “The practice of law includes ‘the doing or performing services in a court of
justice, in any matter depending therein, throughout its various stages...[b]ut in
a larger sense it includes legal advice and counsel....’” Matter of Fletcher, 655
N.E.2d 58, 60 (Ind. 1995) (quoting Fink v. Peden, 214 Ind. 584, 585, 17 N.E.2d
95, 96 (1938)). “The core element of practicing law is the giving of legal advice
to a client and placing oneself in the very sensitive relationship wherein the
confidence of the client, and the management of his affairs, is left totally in the
hands of the attorney.” Id. “The practice of law involves advising or rendering
services for another.” Dumes v. State, 23 N.E.3d 798, 803 (Ind. Ct. App. 2014).
Additionally, Indiana courts have repeatedly held that drafting or preparing
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legal instruments is generally considered practicing law. See State ex rel. Ind.
State Bar Ass’n v. Northouse, 848 N.E.2d 668, 673 (Ind. 2006) (“Drafting and
preparing testamentary and trust documents is clearly the practice of law.”); see
also State ex rel. Ind. State Bar Ass’n v. Diaz, 838 N.E.2d 433, 444 (Ind. 2005)
(preparation of immigration documents and drafting contracts, pleadings, and a
will, constituted unauthorized practice of law); State ex rel. Ind. State Bar Ass’n v.
Ind. Real Estate Ass’n, 244 Ind. 214, 220, 191 N.E.2d 711, 715 (1963) (filling in
blanks of legal instruments, prepared by attorneys, is considered unauthorized
practice of law when doing so involves considerations of significant legal
consequences).
A. Marlow
[19] Several emails were admitted into evidence which reveal that Lehman
continued to negotiate a settlement agreement with counsel for Marlow’s wife
in the weeks following his suspension. Such activity certainly qualifies as
“engag[ing] in the business of a practicing lawyer” as contemplated by Section
33-43-2-1. See Diaz, 838 N.E.2d at 448 (“The practice of law includes making it
one’s business to act for others in legal formalities, negotiations, or
proceedings.”). Furthermore, Marlow’s testimony directly contradicts
Lehman’s claim that he did not speak to Marlow after his suspension date.
Between April 21 and 25, 2014, phone records indicate that Marlow and
Lehman exchanged several calls and text messages. According to Marlow,
Lehman wished to meet and review documents pertaining to his divorce.
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B. Alvarez
[20] Approximately six months after Lehman was suspended from practicing law,
Lehman conducted an initial consultation with Alvarez, accepted an $80
consultation fee, and gave Alvarez a receipt for the fee written on the back of
his business card. The front of the business card read “Joseph C. Lehman,
Attorney at Law.” Ex. 5. Although Lehman told Alvarez that he could not
appear in court, he never informed her that he was suspended and offered to
complete the paperwork necessary for her case for $1000.
[21] We find that Lehman’s use of business cards which suggested that he was still a
licensed attorney, and his failure to correct Alvarez’s misperception that he was
an attorney, are sufficient facts to show that Lehman professed to be a
practicing attorney for purposes of Section 33-43-2-1. Furthermore, as we noted
above, providing legal advice and preparing legal documents constitutes the
practice of law. Therefore, engaging in legal consultation with Alvarez,
accepting a consultation fee, and offering to complete the paperwork necessary
to seek a divorce are facts sufficient to establish that Lehman was “engag[ing] in
the business of a practicing lawyer.” Ind. Code § 33-43-2-1.
C. Lacan
[22] In November of 2014, approximately seven months after his suspension,
Lehman prepared a quitclaim deed for Lacan for $50. The deed and a receipt
for the work were admitted as exhibits at trial. Lehman had represented Lacan
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in a divorce ten years earlier and Lacan hired Lehman believing that he was still
a licensed attorney. The Indiana Supreme Court has previously held that
preparation of a deed by non-lawyers is considered unauthorized practice of
law. Ind. Real Estate Ass’n, 244 Ind. at 225, 191 N.E.2d at 717. Accordingly,
Lehman’s preparation of the quitclaim deed for Lacan constituted unauthorized
practice of law.
Conclusion
[23] We conclude that (1) the trial court did not clearly error in finding that Lehman
failed to establish historical facts which support a rational inference of bias
necessary to justify a change of judge; (2) Lehman waived his right to a jury
trial; and (3) there was sufficient evidence in the record to support Lehman’s
convictions.
[24] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
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