John Wesley Howell v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 27 2020, 7:30 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing 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
Bryan M. Truitt Curtis T. Hill, Jr.
Truitt Law Office Attorney General
Valparaiso, Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
John Wesley Howell, March 27, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1633
v. Appeal from the
LaPorte Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Michael S. Bergerson, Judge
Trial Court Cause No.
46D01-1809-F4-986
Vaidik, Judge.
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Case Summary
[1] John Wesley Howell appeals his conviction and five-year sentence for dealing
in cocaine, arguing that the trial court erred by denying his motion for change
of judge and that the sentence is inappropriate. We affirm.
Facts and Procedural History
[2] In August 2018, the LaPorte County Drug Task Force conducted a controlled
buy of a half-gram of crack cocaine from Howell. The State charged Howell
with dealing in cocaine as a Level 5 felony. The case was assigned to Judge
Michael Bergerson. On May 16, 2019, a few days before trial was to begin,
Howell filed a motion for change of judge under Indiana Rule of Criminal
Procedure 12(B), which provides that a party in a felony or misdemeanor case
“may request a change of judge for bias or prejudice.” He argued that Judge
Bergerson was biased because he was the prosecutor in five previous criminal
cases against Howell, including a 2010-2011 voluntary-manslaughter case in
which Howell was found not guilty. Judge Bergerson denied the motion, the
case proceeded to trial, and the jury found Howell guilty as charged. Citing
Howell’s criminal history—which stretches back to 1984 and includes four
felony convictions, ten misdemeanor convictions, and at least twenty cases—
Judge Bergerson imposed a sentence of five years in prison.
[3] Howell now appeals.
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Discussion and Decision
[4] Howell first contends that the trial court should have granted his motion for
change of judge. As the State notes, however, Howell’s motion was untimely.
Subject to exceptions not applicable here, a request for a change of judge under
Criminal Rule 12 “shall be filed within thirty (30) days of the initial hearing.”
Ind. Crim. Rule 12(D)(1). Howell’s initial hearing was held on September 11,
2018, and he filed his motion more than eight months later, in May 2019.1 On
this basis alone, Howell’s motion was properly denied. See Williams v. State, 86
N.E.3d 185, 188 (Ind. Ct. App. 2017) (“Williams’s failure to adhere to the time
limits of Criminal Rule 12 necessarily means the trial court properly denied his
motion for change of judge.”), trans. denied.
[5] But even if we were to disregard the untimeliness of the motion, we would not
reverse. Howell’s argument focuses largely on the fact that, eight years before
this case went to trial, he was found not guilty in the voluntary-manslaughter
case in which Judge Bergerson was the prosecutor. He asserts that the loss in
that case gave Judge Bergerson a personal stake in the outcome of this case—
that this case was essentially a “rematch”:
[I]t is human nature that trial law is a competition (once it
proceeds to trial) not unlike sports. Human competitive nature
compels a “do anything to win”, albeit within the rules, capacity.
Re-matches are chances at redemption, with similar vigor. It is
1
At a hearing in December 2018, Howell asked Judge Bergerson to “step down” because of the earlier
prosecutions. Tr. Vol. II p. 12. That request was also made more than thirty days after the initial hearing.
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an impossible task for a human to put aside the sting of a trial
loss.
Appellant’s Br. p. 13. Not surprisingly, Howell acknowledges that he “cannot
find a case” that supports this untenable theory. Id.
[6] Howell also notes that “a prosecuting attorney (especially where the case
proceeds to trial) learns a multitude of inadmissible information as to a
defendant’s character, uncharged conduct, ancillary activities and law
enforcement unsubstantiated views as to the defendant.” Id. However, he does
not identify any such information that Judge Bergerson has about him. And
even if Judge Bergerson did have such information, Howell has not cited any
authority for the proposition that information of this sort requires a change of
judge.
[7] As the State notes, “The law presumes that a judge is unbiased and
unprejudiced,” Timberlake v. State, 753 N.E.2d 591, 610 (Ind. 2001), reh’g denied,
and the party claiming bias has the burden of rebutting that presumption, Smith
v. State, 770 N.E.2d 818, 823 (Ind. 2002). Howell has not done so here. He
does not assert that Judge Bergerson had any personal knowledge of the facts of
this case or said anything exhibiting bias or made any trial rulings based on
bias. Howell does seem to suggest that the imposition of an above-advisory
sentence (one year shy of the statutory maximum) is proof of bias, but as we
discuss next, there is nothing inappropriate about that sentence given his
extensive criminal history.
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[8] For all these reasons, we affirm the denial of Howell’s motion for change of
judge.
[9] Howell asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B),
which provides that an appellate court “may revise a sentence authorized by
statute if, after due consideration of the trial court's decision, the Court finds
that the sentence is inappropriate in light of the nature of the offense and the
character of the offender.” “Whether a sentence is inappropriate ultimately
turns on the culpability of the defendant, the severity of the crime, the damage
done to others, and a myriad of other factors that come to light in a given case.”
Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the
judgment of trial courts in sentencing matters, defendants have the burden of
persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d
1041, 1044-45 (Ind. Ct. App. 2016).
[10] Convicted of a Level 5 felony, Howell faced a sentencing range of one to six
years, with an advisory sentence of three years. Ind. Code § 35-50-2-6. The
trial court imposed an above-advisory sentence of five years. Howell argues
that this sentence is inappropriate because he sold only a small amount of drugs
and because of “his lack of education, his absence of a father, his disability and
inability to work, his poor physical health and his absence of social relations.”
Appellant’s Br. p. 16 (citations omitted). We agree that there was nothing
egregious about Howell’s dealing offense—he sold a half-gram of crack cocaine
in a controlled buy. But even if we accept Howell’s claims about his personal
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and medical background, his criminal history supports his above-advisory
sentence. He had fourteen convictions before this case—four felonies and ten
misdemeanors—including Class C felony possession of cocaine and Class D
felony possession of cocaine. Howell has failed to persuade us that his sentence
is inappropriate.
[11] Affirmed.
May, J., and Robb, J., concur.
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