Pink Allen Robinson v. State of Indiana ( 2023 )

FILED
Aug 23 2023, 10:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Jimmy Gurulé Theodore E. Rokita
Kevin Murphy Attorney General of Indiana
Exoneration Justice Clinic Kelly A. Loy
Notre Dame Law School Deputy Attorney General
South Bend, Indiana Indianapolis, Indiana
Robert Hochman
Minje Shin
Admitted Pro Hac Vice
Sidley Austin LLP
Chicago, Illinois
IN THE
COURT OF APPEALS OF INDIANA
Pink Allen Robinson, August 23, 2023
Appellant-Petitioner Court of Appeals Case No.
22A-PC-1102
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Teresa L. Cataldo,
Appellee-Respondent. Judge
Trial Court Cause No.
20C01-2012-PC-41
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 1 of 26
Opinion by Judge Pyle
Judges Crone and Bradford concur.
Pyle, Judge.
Statement of the Case
[1] In 2016, the State charged Pink Robinson (“Robinson”) with three counts of
Level 3 felony robbery while armed with a deadly weapon. A jury convicted
Robinson of all three counts in 2018, and the trial court sentenced him to an
aggregate sentence of forty-eight years, with three years suspended. This Court
affirmed Robinson’s convictions and sentence on direct appeal. See Robinson v.
State, No. 18A-CR-2212, 2019 WL 4924824 (Ind. Ct. App. Oct. 7, 2019), trans.
denied. In 2020, Robinson filed a pro se petition for post-conviction relief. In
October 2021, attorney Jimmy Gurulé (“Attorney Gurulé”) filed an appearance
on Robinson’s behalf.1 Also, in October 2021, Robinson filed a motion for a
1
At the outset, in full transparency, we note that Attorney Gurulé, who is affiliated with Notre Dame Law
School’s Exoneration Justice Clinic (“the Clinic”), filed Robinson’s appellate brief on September 8, 2022. On
November 16, 2022, Attorney Gurulé gave a presentation to several judges on this Court. During this
presentation, Attorney Gurulé spoke about the Clinic. He also spoke about one of the Clinic’s cases, Royer v.
State, 166 N.E.3d 380 (Ind. Ct. App. 2021). In Royer, this Court affirmed the post-conviction court’s order
that granted Royer’s successive petition for post-conviction relief based on newly discovered evidence and
Brady violations and vacated Royer’s murder conviction. Royer, 166 N.E.3d at 405. In Robinson’s appellate
brief, Attorney Gurulé cites Royer in support of his argument that the post-conviction court erred in denying
Robinson’s motion for a change of judge. We note that none of the judges on this panel of Robinson’s
appeal attended Attorney Gurulé’s presentation or discussed the Royer case with any of the judges who
attended the presentation.
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 2 of 26
change of judge pursuant to Post-Conviction Rule 1(4)(b). 2 The post-conviction
court denied Robinson’s change of judge motion, and this interlocutory appeal
concerns only the post-conviction court’s denial of that motion.3 Robinson
specifically argues that the post-conviction court clearly erred when it denied his
motion for a change of judge. Concluding that the post-conviction court did not
clearly err, we affirm the post-conviction court’s denial of Robinson’s change of
judge motion.4
[2] We affirm.
Issue
2
Although Robinson’s motion was titled a motion for recusal, we note that Post-Conviction Rule 1(4)(b)
does not include the term recusal. Rather, Post-Conviction Rule 1(4)(b) uses the terms change of judge. We
will, therefore, refer to Robinson’s motion as a motion for a change of judge.
3
We express no opinion on the merits of Robinson’s post-conviction relief petition, which is pending before
the post-conviction court.
4
We note that Attorney Gurulé is also representing Iris Seabolt (“Seabolt”) and Leon Tyson (“Tyson”), two
other post-conviction petitioners who appealed the post-conviction court’s denial of their change of judge
motions. Seabolt’s appeal was originally filed under Cause Number 22A-PC-208, and Tyson’s appeal was
originally filed under Cause Number 22A-PC-143. In May 2022, this Court’s motions panel granted
Attorney Gurulé’s motion to consolidate these two appeals with Robinson’s appeal.
Thereafter, in February 2023, Attorney Gurulé initiated an appeal for Reginald Dillard (“Dillard”), a fourth
post-conviction petitioner who is appealing the post-conviction court’s denial of his change of judge motion.
Dillard’s appeal was originally filed under Cause Number 23A-PC-261. The following month, March 2023,
this Court’s motions panel granted Attorney Gurulé’s motion to consolidate Dillard’s appeal into Tyson’s
appeal.
However, it is well-established that we have the inherent authority to reconsider a ruling by the motions
panel while an appeal remains pending. Beasley v. State, 192 N.E.3d 1026, 1029 (Ind. Ct. App. 2022), trans.
denied. Here, we have determined that a de-consolidation of these four appeals is necessary. Accordingly, we
have returned each one to its original appellate cause number and will decide each appeal on its own merits.
On August 11, 2023, we affirmed the post-conviction court’s denial of Tyson’s change of judge motion. See
Tyson v. State, No. 22A-PC-143, 2023 WL 5158093 (Ind. Ct. App. Aug. 11, 2023).
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 3 of 26
Whether the post-conviction court clearly erred when it denied
Robinson’s motion for a change of judge.
Facts
[3] In October 2021, Robinson, represented by Attorney Gurulé, filed a 29-page
change of judge motion.5 At the beginning of his motion, Robinson alleged as
follows:
There is an epidemic in Elkhart, Indiana where innocent people
are wrongfully convicted as a result of systemic police
misconduct, false and fabricated testimony, undisclosed promises
of consideration to witnesses, faulty forensic evidence, and the
widespread failure to disclose material exculpatory and
impeachment evidence. These wrongful convictions are the
byproduct of a culture of misconduct at the [Elkhart County
Prosecutors Office] and [the Elkhart Police Department] that has
spanned decades. Tragically, these unjust convictions often take
years to unravel, leaving innocent men and women to languish in
prison for crimes they did not commit.
(App. Vol. 9 at 150).
[4] In addition, Robinson specifically argued that the post-conviction court should
grant his change of judge motion because the post-conviction court judge had
been a deputy prosecutor in the Elkhart County Prosecutor’s Office from 1998
until 2002. Robinson further argued that the post-conviction court should grant
his motion for a change of judge because the post-conviction court’s order in a
5
In this motion, Robinson stated that he intended to amend his post-conviction petition “to add additional
allegations and claims.” (App. Vol. 9 at 148). However, he has not yet filed an amended petition.
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 4 of 26
prior unrelated case involving Andrew Royer (“Royer”) had shown that the
post-conviction court judge had “already prejudged allegations identical to Mr.
Robinson’s to be ‘defamatory’ and false, based not on evidence, but the Court’s
own extrajudicial prejudices and beliefs.” (App. Vol. 9 at 164). Robinson also
argued that because the post-conviction court had ultimately granted Royer’s
motion for a change of judge, the post-conviction court should grant Robinson’s
motion for a change of judge as well.
[5] At this point, for a better understanding of Robinson’s argument and the post-
conviction court’s response to this argument in its order denying Robinson’s
motion for a change of judge, we find it helpful to review the facts and history
of Royer’s case. A jury convicted Royer of murdering Helen Sailor (“Sailor”)
in 2005. In 2006, this Court affirmed Royer’s conviction. Royer v. State, No.
20A03-0601-CR-14, 2006 WL 1634766 (Ind. Ct. App. May 31, 2006). In 2007,
Royer filed a petition for post-conviction relief, which the post-conviction court
denied after a hearing. This Court affirmed the denial. Royer v. State, No.
20A04-1106-PC-325, 2011 WL 6595351 (Ind. Ct. App. Dec. 20, 2011).
[6] A few years later, in June 2013, Royer, represented by Attorney Elliot Slosar
(“Attorney Slosar”), filed a motion for relief from judgment pursuant to Indiana
Trial Rule 60(B).6 Immediately after filing this motion, Attorney Slosar and
Royer’s family members gathered in front of the prosecutor’s office for a press
6
Slosar’s petition for temporary admission to appear in Robinson’s post-conviction proceeding is pending
before the post-conviction court.
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 5 of 26
conference. During the press conference, Attorney Slosar stated that there was
a “‘systemic failure’ and an ‘epidemic’ in Elkhart County where people [were]
wrongfully convicted because of police corruption, uninspiring defense counsel
and an overzealous prosecutor.” (App. Vol. 3 at 57). Attorney Slosar also
stated that “these factors contributed to Andrew Royer being convicted of a
murder that he is absolutely innocent of.” (App. Vol. 3 at 57). In addition,
Attorney Slosar stated that “we have proven that [Royer’s] conviction was an
absolute fraud and the conviction was based on intentional misconduct.” (App.
Vol. 3 at 57). Attorney Slosar further referred to the pending Trial Rule 60(B)
motion as an appeal and released videotapes of witnesses that would be
testifying at the hearing on Royer’s motion.
[7] Following the press conference, the State filed a motion for an emergency
hearing and a request for an injunction. In support of its motion, the State
attached two newspaper articles from the South Bend Tribune. The headline
for one of the articles, which is dated June 13, 2018, is “Mentally disabled man
says shoddy policing, false statements led to Elkhart murder conviction.” (No.
20D03-0309-MR-155, Chronological Case Summary, June 19, 2018 entry).
The headline for the other article, which is dated June 14, 2018, is “Attorney of
Andrew Royer blasts Elkhart police for ‘miscarriage of justice.’” (No. 20D03-
0309-MR-155, Chronological Case Summary, June 19, 2018 entry). Royer filed
a response to the State’s motion. Following a hearing, the trial court judge in
Royer’s case, who is the post-conviction court judge in Robinson’s case, issued
an order that provides, in relevant part, as follows:
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9. Additionally, Slosar contends that he made no statements
that violate Ind. Professional Conduct Rule 3.6, as only
information contained in the public record was stated at
the press conference, along with matters he has a
constitutional right to say on behalf of Royer. The Court
carefully reviewed the State’s Motion, as well as Royer’s
Response, along with the various attachments referencing
news articles about the conference. Particularly troubling
to the Court were Slosar’s statements at the subject press
conference characterizing “‘systemic failure’ and an
‘epidemic’ in Elkhart County where people are wrongfully
convicted because of police corruption, uninspiring
defense counsel and an overzealous prosecutor.” Slosar
went on to say that “these factors contributed to Andrew
Royer being wrongfully convicted of a murder that he is
absolutely innocent of.” Slosar also stated that “we have
proven that his conviction was an absolute fraud and the
conviction was based on intentional misconduct.”
Additionally, videos of proposed witnesses were released
and Slosar inaccurately referred to the pending Trial Rule
60(B) Motion filed in this Court as an “appeal.”
10. The Indiana Supreme Court in In re: Litz[,] 721 N.E.2d 258(Ind. 1999) addressed behavior such as [Slosar’s] and held
that Litz’s publication of a letter in several local newspapers
which state[d] his client committed no crime, criticized the
prosecutor’s decision to retry the case, and mentioned his
client had passed a lie detector test constituted a violation
of Ind. Professional Conduct Rule 3.6(a).[7]
7
Indiana Rule of Professional Conduct 3.6(a) provides as follows:
A lawyer who is participating or has participated in the investigation or litigation of a
matter shall not make an extrajudicial statement that the lawyer knows or reasonably
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 7 of 26
11. In sum, Slosar’s comments and statements are beyond the
scope of the exceptions stated in Ind. Professional Conduct
Rule 3.6(b) as to what a lawyer who is participating in
litigation of a matter may state.[8] The statements are highly
inflammatory, defamatory, inaccurately state the law as it
exists at this time with respect to Royer’s conviction, and
draw legal conclusions about matters not yet adjudicated.
Slosar’s actions go beyond simply summarizing evidence
that is a matter of public record. Further, any alleged “new
evidence” must be heard in accordance with the judicial
process before any legal conclusions may be reached.
Essentially, the extrajudicial statements made by Slosar at
the public press conference, and which were reported in the
media, do exactly what the Rule prohibits - forming public
opinion that has a substantial likelihood of materially
prejudicing the adjudicative proceedings pending in this
Court.
should know will be disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
8
Indiana Rule of Professional Conduct 3.6(b) provides as follows:
Notwithstanding paragraph (a), a lawyer may state:
(1) the claim, offense or defense involved and, except when prohibited by law, the
identity of the persons involved;
(2) information contained in the public record;
(3) that an investigation of a matter is in progress;
(4) the scheduling or result of any step in litigation;
(5) a request for assistance in obtaining evidence and information necessary thereto;
(6) a warning of danger concerning the behavior of a person involved, when there is
reason to believe that there exists the likelihood of substantial harm to an
individual or to the public interest; and
(7) in a criminal case, in addition to subparagraphs (1) through (6):
(i) identity, residence, occupation and family status of the accused;
(ii) if the accused has not been apprehended, information necessary to aid
in apprehension of that person;
(iii) the fact, time and place of arrest; and
(iv) the identity of investigating and arresting officers or agencies and the
length of the investigation.
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 8 of 26
* * * * *
13. Here, the Court finds that the statements Slosar made at
the public press conference held on June 13, 2018, violated
Ind. Rule of Professional Conduct 3.6(a) in that they were
extrajudicial statements that Slosar knew or reasonably
should have known would be disseminated by means of
public communication and would have a substantial
likelihood of prejudicing the adjudicative proceeding that
is pending in this matter, specifically, his Trial Rule 60(B)
Motion.
14. While the Court clearly recognizes Slosar’s First
Amendment right to free expression, as noted by the
Indiana Supreme Court in the Commentary to Ind.
Professional Rule of Conduct 3.6,[9] that right must be
balanced with the right to fair and impartial legal
proceedings, which may entail some restriction of the
information that may be disseminated about a party prior
to and during those proceedings. Ind. Professional Rule of
Conduct 3.6 does not curtail free speech except to the
extent necessary to protect the corresponding right to fair
9
The commentary to Indiana Rule of Professional Conduct 3.6 provides, in relevant part, as follows:
It is difficult to strike a balance between protecting the right to a fair trial and
safeguarding the right of free expression. Preserving the right to a fair trial necessarily
entails some curtailment of the information that may be disseminated about a party prior
to trial, particularly where trial by jury is involved. If there were no such limits, the result
would be the practical nullification of the protective effect of the rules of forensic
decorum and the exclusionary rules of evidence. On the other hand, there are vital
societal interests served by the free dissemination of information about events having
legal consequences and about legal proceedings themselves. The public has a right to
know about threats to its safety and measures aimed at assuring its security. It also has a
legitimate interest in the conduct of judicial proceedings, particularly in matters of general
public concern. Furthermore, the subject matter of legal proceedings is often of direct
significance in debate and deliberation over questions of public policy.
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 9 of 26
proceedings. This is the basis upon [which] the Court is
acting.
15. For all these reasons, Slosar is hereby enjoined from
making extrajudicial commentary and statements to the
extent explained in Ind. Professional Rule of Conduct 3.6
on the matter that is pending before this court. Failure to
comply with this Order will be deemed willful failure to
comply with Ind. Professional Conduct Rule 3.6 and is
subject to appropriate sanctions.
(App. Vol. 3 at 56-59). Also, in the order, the trial court noted that Attorney
Slosar had argued that Indiana Rule of Professional Conduct 3.6 had not
applied to this case because no trial had been pending. The trial court
responded that it disagreed with Attorney Slosar’s over[-]simplification of the
intent of the rule and found that “the clear and express language of paragraph
(a) is that dissemination of extrajudicial statements that will have a likelihood of
materially prejudicing an adjudicative proceeding (Emphasis added) is
prohibited. Indeed, that language, as well as ‘legal proceedings’ is used
throughout the Rule, the Commentary, and in case law.” (App. Vol. 3 at 56).
[8] In August 2018, Royer filed a motion to withdraw, without prejudice, his Trial
Rule 60(B) motion, which the trial court granted. In May 2019, Royer filed a
motion for permission to file a successive petition for post-conviction relief,
which this Court granted. Royer then filed a successive petition for post-
conviction relief and a motion for change of judge. The post-conviction court
judge, who had issued the order finding that Attorney Slosar had violated
Indiana Rule of Professional Conduct 3.6(a), granted Royer’s motion for a
change of judge.
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[9] Royer’s case was subsequently assigned to Kosciusko Superior Court Judge Joe
V. Sutton (“Judge Sutton”), who held a four-day hearing on Royer’s successive
petition for post-conviction relief in October and November 2019. Following
the hearing, Judge Sutton issued a fifty-five-page order granting Royer’s
successive petition for post-conviction relief and vacating Royer’s murder
conviction based on newly discovered evidence and Brady violations.
[10] Judge Sutton specifically found newly discovered evidence that Elkhart County
Forensic Specialist Dennis Chapman (“Forensic Specialist Chapman”) had not
been qualified to conduct the latent fingerprint comparisons that he had made
in Royer’s case.10 Judge Sutton noted that then-Elkhart County Chief Deputy
Prosecutor Vicki Becker (“Deputy Prosecutor Becker”)11 had been responsible
for meeting with Forensic Specialist Chapman and preparing him to testify.
However, Judge Sutton found that Deputy Prosecutor Becker had not been
provided with Forensic Specialist Chapman’s resume and had not been told
that he was not qualified to conduct comparisons of latent prints. Judge Sutton
further found that Forensic Specialist Chapman had “misled [Deputy
Prosecutor] Becker into believing that he was qualified to conduct the type of
latent print comparisons that [had] exist[ed]” in the case. (App. Vol. 3 at 69).
10
In 2012, the Elkhart County Sheriff’s Department disciplined Forensic Specialist Chapman for his role in
Royer’s case. Forensic Specialist Chapman retired in 2013.
11
Vicki Becker is currently the elected Elkhart County Prosecutor.
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Judge Sutton also found a Brady violation because Forensic Specialist
Chapman’s lack of qualifications had not been disclosed to the defense.
[11] Judge Sutton further found newly discovered evidence that Detective Carl
Conway (‘Detective Conway”), the lead investigator in the Sailor homicide had
been removed from the homicide unit before Royer’s trial. The reason for
Detective Conway’s removal was a misrepresentation that he had made to an
attorney regarding one of the attorney’s clients. 12 Based upon this
misrepresentation, Detective Conway’s supervisors had concerns about the
impact that his misrepresentations would have on future homicide
investigations and his credibility at trials if called to testify. However, Detective
Conway’s removal from the homicide unit had not been disclosed to Royer
before trial. Judge Sutton further found a Brady violation because the Elkhart
Police Department had not disclosed Detective Conway’s removal to the
defense.
[12] In addition, Judge Sutton found newly discovered evidence that Detective
Conway had threatened a critical witness in Royer’s case and promised her
$2,000 to falsely testify against Royer at trial. Judge Sutton further found that
12
Judge Sutton further explained that Detective Conway’s appeal of his removal from the homicide unit had
been summarily denied. In addition, Detective Conway had later been removed from the sex-crimes unit.
According to Judge Sutton, during that removal process, Detective Conway had “made a complaint to
[Deputy Prosecutor Becker]. A disciplinary proceeding ensued that resulted in an agreement between
[Detective] Conway and the Elkhart Police Department. As part of that agreement, the Elkhart Police
Department agreed to withdraw any allegations alleging or suggesting that ‘he caused the Office of the
Prosecuting Attorney to lose faith in the Elkhart Police Department or to question its ability to supervise its
detectives, investigate sex crimes or to perform any other form of police activities.’ In exchange, Detective
Conway accepted a written reprimand.” (App. Vol. 3 at 83-84 n.7).
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the witness’ recantation of her trial testimony at the post-conviction hearing and
her explanation for how her statement had been crafted were both credible. In
addition, Judge Sutton found a Brady violation because the coercion of the
witness and the fabrication of her testimony had not been disclosed to the
defense.
[13] Judge Sutton further found newly discovered evidence that Royer’s two audio-
recorded statements obtained on September 3 and September 4, 2003, which
totaled approximately sixty-one minutes, were unreliable and involuntary.
Judge Sutton specifically noted that Detective Conway had interrogated Royer
for approximately seven and one-half hours and that there was newly
discovered evidence that Detective Conway had a reputation for obtaining
confessions from every suspect that he had interrogated while assigned to the
homicide unit. In addition, Judge Sutton found newly discovered evidence that
Detective Conway’s ability to obtain confessions had not been a direct result of
his internal interrogation training at the Elkhart Police Department. Judge
Sutton further found newly discovered evidence that the Elkhart Police
Department had not provided Detective Conway with any meaningful training
on how to conduct interrogations, including how to interrogate a suspect such
as Royer, who suffered from a mental disability. Judge Sutton also found that
although Detective Conway had been aware of Royer’s mental disability,
Detective Conway did not use any protections to safeguard against the
possibility of Royer giving false and unreliable statements. Judge Sutton
specifically pointed out that although another member of the homicide unit had
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told Detective Conway that the Elkhart Housing Authority had documentation
revealing that Royer was severely disabled and had the mind of a child, Royer
had not been permitted to have a lawyer, counselor, or family members present
for his interrogations on September 3 and 4.
[14] In addition, Judge Sutton found newly discovered evidence that Royer had not
knowingly and voluntarily waived his Miranda rights because Detective
Conway had not properly taken the time to advise Royer of these rights. Judge
Sutton also found newly discovered evidence that Detective Conway had
“repeatedly provided information about the homicide to Mr. Royer throughout
the unrecorded two-day interrogation sessions.” (App. Vol. 3 at 101). In
addition, Judge Sutton found newly discovered evidence that although
Detective Conway revealed at the successive post-conviction hearing that
Royer’s “mental well-being [had] broke[n] down[]” during the interrogations,
Detective Conway had taken Royer’s recorded statement and placed him under
arrest. (App. Vol. 3 at 103). Royer had been “in such a state of confusion that
Detective Conway had to remind him that he [had given] a confession and was
under arrest.” (App. Vol. 3 at 103).
[15] Judge Sutton also found newly discovered evidence that the Elkhart Police
Department’s investigation into Royer’s statements corroborated their
unreliability. (App. Vol. 3 at 104). Specifically, Detective Conway
acknowledged that he was only able to corroborate the following two basic
pieces of information from all of Royer’s statements: (1) Royer knew the other
person who had been charged with killing Sailor; and (2) Royer lived in the
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same building as Sailor. Further, many of the details in Royer’s recorded
statements conflicted with the physical evidence.
[16] Based on these extensive findings, including newly discovered evidence and
Brady violations, Judge Sutton vacated Royer’s murder conviction after
concluding that he was entitled to a new trial. We note that although Judge
Sutton found several Brady violations, Judge Sutton’s order does not specifically
state that Deputy Prosecutor Becker or any other prosecutor had known about
Detective Conway’s misconduct or had purposely withheld evidence from the
defense.13
[17] On appeal, we affirmed Judge Sutton’s grant of Royer’s successive petition for
post-conviction relief and vacation of Royer’s murder conviction. Royer, 166
N.E.3d at 380. We specifically highlighted instances of Detective Conway’s
misconduct and concluded that Royer had not received a fair trial. Like Judge
Sutton, we did not state that Deputy Prosecutor Becker or any other prosecutor
had known about Detective Conway’s misconduct or had purposely withheld
evidence from the defense.
[18] We now return to the facts in Robinson’s appeal. As noted above, Robinson
filed his 29-page change of judge motion in October 2021. In November 2021,
the State filed a response to Robinson’s motion for a change of judge, and in
13
“For Brady purposes, the prosecutor is charged with knowledge of information known by the police even if
the prosecutor herself is unaware of the information.” Royer, 166 N.E.3d at 400.
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December 2021, Robinson filed a reply to the State’s response. In February
2022, the post-conviction court held a hearing on Robinson’s motion.
[19] In March 2022, before the post-conviction court had issued a decision on
Robinson’s change of judge motion, Robinson filed a supplement to his change
of judge motion. In this supplement, Robinson stated that he had newly
discovered evidence, which revealed that the post-conviction court had been
married from 1992 until 2003 to Stephen Cappelletti (“Cappelletti”), who had
been an Elkhart Police Department reserve police officer from 1983 through
1994. According to Robinson, this newly discovered evidence required the
post-conviction court to grant his change of judge motion.
[20] In April 2022, the post-conviction court issued an order denying Robinson’s
change of judge motion. This order provides, in relevant part, as follows:
No Order of this Court . . . support[s] a finding that the Court
harbors any actual personal bias toward [Robinson]. The 2018
order in Royer did not constitute a premature comment on the
merits of that case that would establish improper bias in the
instant case. Petitioner Robinson . . . has mischaracterized the
2018 order in Royer beyond the Court’s purpose in that case
which was to curtail the misconduct of counsel for . . . Royer,
Elliot Slosar, as set out in the Royer Order which was a
legitimate judicial exercise. The motion before the Court in
Royer was the State of Indiana’s Motion for Emergency Hearing
and Request for Injunction along with relevant attachments. The
documents presented to the Court established that Attorney
Slosar had held a press conference at which he made several
statements about the criminal justice system in Elkhart County,
including that Elkhart faced a “systemic failure” and “an
epidemic” of wrongful convictions. After a hearing held on July
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2, 2018, this Court entered an injunction (the 2018 Order) finding
that counsel’s public comments were highly inflammatory and
defamatory in that they inaccurately stated the law as it existed at
that time, and drew improper legal conclusions about matters not
yet adjudicated. Unequivocally, the Court ordered that the
statements Attorney Slosar made at the public press conference
violated Ind. Rule of Professional Conduct 3.6(a)[.]
[Robinson] . . . opines that the 2018 Order in Royer represents a
product of this Court’s extrajudicial prejudices and beliefs. To
the contrary, this Court never considered or ruled on any of the
substantive contents of Royer’s petition. More importantly,
contrary to [Robinson’s] assertion, this Court has not “staked out
a clear position . . . that there are no systemic police and
prosecutorial problems in Elkhart that lead to wrongful
convictions.” Rather, this Court simply found that the veracity
of Attorney Slosar’s comments at his June 13, 2018 press
conference was lacking, and that his conduct violated
professional standards. The Court was not engaging in or
adjudicating the existence of an “epidemic” of wrongful
conviction in Elkhart, but was addressing concerns created by
Attorney Slosar’s conduct.
Therefore, [Robinson’s] argument that the 2018 Order somehow
demonstrates that this Court has already prejudged his post
conviction allegations . . . and renders this Court biased is
misguided. The Court’s disqualification in the instant case is not
necessitated by its ruling on the past conduct of Attorney Slosar
in a completely separate and distinct case, particularly since
Attorney Slosar has not been admitted in the instant case and is
not counsel of record[.]
Additionally, [Robinson’s] contention that recusal is required in
his case because the Judge worked with and may have had
relationships with members of the Elkhart Police Department
and Elkhart Prosecutor’s Office, thereby witnessing or having
knowledge of their patterns of practice in allegedly failing to
comply with their Brady obligations is mere speculation at best.
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This Judge did not work at the Prosecutor’s Office anytime near
[Robinson’s] case and conviction, and [Robinson] has not shown
that this Judge was witness to anything compromising in his
case[.]
Along these same lines, [Robinson] filed a Supplement Based on
Newly Discovered Evidence in Support of his Motion for
Recusal on March 16, 2022 arguing that this Court must recuse
in this case because the Judge was formerly married to an Elkhart
Police Department reserve officer during a time period when
alleged “systemic misconduct” was occurring on the police
force[.] The fact is that the Judge of this Court was married to
the subject reserve officer from June 6, 1992 to April 15, 2003.
The subject officer worked at the Elkhart Police Department
from 1983-1994; therefore, for most of the time the officer was
with the Elkhart Police Department, this Judge was not married
to him. Moreover, Petitioner Robinson was charged in the
underlying criminal case on September 21, 2016, and this Judge
had absolutely no relationship with the subject officer anytime
remotely close to [Robinson’s] case and conviction. [Robinson’s]
assertion that this Court or her ex-spouse carry any connection,
let alone a significant one, to [Robinson’s] 2016 crime and 2018
conviction fails[.]
In the instant case, there is absolutely no evidence whatsoever
that this Court’s former marriage to a police officer in any way
ever swayed the Judge’s decision making or does so today
nineteen (19) years post-divorce. The Judge has no personal
knowledge derived from extrajudicial sources stemming from
that marital relationship. The Judge’s ex-husband stopped
working for the Elkhart Police Department in 1994, some
twenty-two (22) years prior to [Robinson’s] offense. [Robinson’s]
argument is not supported by any precedential authority, is not
persuasive and recusal is not required based on the same.
(App. Vol. 10 at 60-65). One month later, Robinson filed a motion for
reconsideration, which the post-conviction court denied.
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 18 of 26
[21] In May 2022, the post-conviction court certified its order for interlocutory
appeal. In its certification order, the post-conviction court stated as follows:
The Court believes that its Order denying recusal in this case
demonstrates that the Court took great care to research and
address each of [Robinson’s] arguments, and appropriately
applied well-settled case law regarding recusal in determining
that no actual bias had been shown and that recusal was not
warranted. Nonetheless, . . . the Court sees no reason to deviate
from its inclination to certify the Order denying recusal in this
case . . . to gain guidance and clarification from the Court of
Appeals with respect to [Robinson’s] allegations for recusal
which this Court believes are based on misinterpretation and
mischaracterization of the Court’s previous Order in an unrelated
case, as well as on unfounded conclusions that this Court harbors
actual bias based on tenuous, speculative and specious claims not
supported by the facts.
(App. Vol. 10 at 80-81).
[22] In May 2022, this Court accepted jurisdiction over Robinson’s interlocutory
appeal. Also in May 2022, Robinson asked this Court to consolidate his case
with Iris Seabolt v. State, No. 22A-PC-00208 and Leon Tyson v. State, No.
Number 22A-PC-143. This Court’s motions panel granted Robinson’s motion
to consolidate the three cases, which, as explained above, we have de-
consolidated.
[23] Robinson now appeals the denial of his motion for a change of judge in his
post-conviction case.
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 19 of 26
Decision
[24] Robinson argues that the post-conviction court clearly erred when it denied his
motion for a change of judge. We disagree.
[25] At the outset, we note that the law is well-settled that “adjudication by an
impartial tribunal is one of the fundamental requirements of due process
imposed on the courts of this state by the Fourteenth Amendment to the federal
constitution.” Matthews v. State, 64 N.E.3d 1250, 1253 (Ind. Ct. App. 2016)
(citing Tumey v. Ohio, 273 U.S. 510, 535 (1927)), trans. denied. Judges are
presumed impartial and unbiased. Matthews, 64 N.E.3d at 1253. “‘[T]he law
will not suppose a possibility of bias or favor in a judge, who is already sworn to
administer impartial justice, and whose authority greatly depends upon that
presumption and idea.’” Matthews, 64 N.E.3d at 1253 (quoting 3 William
Blackstone, Commentaries *361)).
[26] In post-conviction cases, parties seeking to overcome the presumption of
judicial impartiality must move for a change of judge under Post-Conviction
Rule 1(4)(b). That rule provides, in relevant part, as follows:
Within ten (10) days of filing a petition for post-conviction relief
under this rule, the petitioner may request a change of judge by
filing an affidavit that the judge has a personal bias or prejudice
against the petitioner. The petitioner’s 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. A change of judge shall be
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 20 of 26
granted if the historical facts cited in the affidavit support a
rational inference of bias or prejudice.
(Emphasis added).
[27] This rule requires the judge to examine the affidavit, treat the historical facts
recited in the affidavit as true, and determine whether these facts support a
rational inference of bias or prejudice. Pruitt v. State, 903 N.E.2d 899, 939 (Ind.
2009). A change of judge is neither automatic nor discretionary but calls for a
legal determination by the post-conviction court. Id. We presume that the post-
conviction court is not biased against a party and disqualification is not required
under the rule unless the judge holds a “personal bias or prejudice.” Id.(quoting P.-C.R. 1(4)(b)). Typically, a bias is personal if it stems from an
extrajudicial source, which means a source separate from the evidence and
argument presented at the proceedings. Pruitt, 903 N.E.2d at 939. “Such bias
or prejudice exists only where there is an undisputed claim or the judge has
expressed an opinion on the merits of the controversy before [her].” L.G. v.
S.L., 88 N.E.3d 1069, 1073 (Ind. 2018).
[28] “Further, Indiana courts credit judges with the ability to remain objective
notwithstanding their having been exposed to information which might tend to
prejudice lay persons.” Id. In addition, “[a] showing of prejudice sufficient to
support a motion for a change of judge must be established from personal,
individual attacks on a defendant’s character, or otherwise.” Miller v. State, 106
N.E.3d 1067, 1076 (Ind. Ct. App. 2018), trans. denied. Stated differently, “a
motion for a change of judge should be granted only if the evidence reveals such
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 21 of 26
a high degree of favoritism or antagonism as to make a fair judgment
impossible.” State v. Shackleford, 922 N.E.2d 702, 707 (Ind. Ct. App. 2010)
(cleaned up), trans. denied.
[29] The ruling on a motion for change of judge is reviewed under the clearly
erroneous standard. Garland v. State, 788 N.E.2d 425, 433 (Ind. 2003).
Reversal will require a showing which leaves us with a definite and firm
conviction that a mistake has been made. Id.[30] We restate Robinson’s first argument as whether the post-conviction court
clearly erred in denying his motion for change of judge because the post-
conviction court’s 2018 order in the unrelated Royer case finding that Attorney
Slosar had violated Rule of Professional Conduct 3.6(a) supports a rational
inference of bias or prejudice against Robinson.14 “Prior judicial rulings
generally do not support a rational inference of prejudice.” Voss v. State, 856
N.E.2d 1211, 1217 (Ind. 2006). “Adverse rulings and findings by a trial judge
14
We note that Robinson asserts that in Royer, 166 N.E.3d at 380, this Court found systemic police and
prosecutorial misconduct in Elkhart. We did not. Specifically, we find no language in our opinion in Royer
to support such an interpretation. Rather, our review of our opinion in Royer reveals that the newly
discovered evidence related primarily to the horrific conduct of one Elkhart Police Department detective.
Robinson also asserts that in its July 2018 order in the Royer case, the post-conviction court found that there
was no systemic police or prosecutorial misconduct in Elkhart. It did not. The post-conviction court’s order
in the Royer case solely addressed the statements that Attorney Slosar made at a press conference after he
had filed in Royer’s case a motion for relief from judgment pursuant to Indiana Trial Rule 60(B).
Specifically, the post-conviction court found that Attorney Slosar’s statements violated Rule of Professional
Conduct 3.6(a) because Attorney Slosar knew or reasonably should have known that these statements would
be disseminated by means of public communication and would have a substantial likelihood of prejudicing
the adjudicative proceeding that was pending in the matter.
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 22 of 26
from past proceedings with respect to a particular party are generally not
sufficient reasons to believe the judge has a personal bias or prejudice.” Id.
Although the mere assertion that certain adverse rulings by a judge constitute
bias and prejudice does not establish the requisite showing, there may be
circumstances in which a rational inference of bias or prejudice may be
established if a judge’s order is sufficiently egregious. Id.
[31] Here, however, we find nothing egregious in the July 2018 order that the trial
court judge, who is the post-conviction court judge in Robinson’s case, issued in
the unrelated Royer case. Rather, the trial court simply concluded that
Attorney Slosar’s press conference statements regarding systemic police
misconduct in Elkhart, which he had made before the adjudication of Royer’s
Trial Rule 60(B) motion, violated Rule of Professional Conduct 3.6(a). Further,
and more importantly, the trial court’s July 2018 order does not mention
Robinson or anything about Robinson’s case, which occurred more than ten
years after Royer’s case. In sum, we find nothing in the Royer order that
supports a rational inference of bias or prejudice against Robinson.15
15
We further note that Robinson’s argument that the post-conviction court should have granted his motion
for a change of judge because it granted the motion for a change of judge in the Royer case is unavailing.
Specifically, the fact that the post-conviction court granted a motion for a change of judge in Royer’s case
“appears to us to evidence the fact that [the post-conviction court judge] would conduct herself as an
unbiased jurist in applying the law to the particular facts of a case.” Smith v. State, 613 N.E.2d 412, 414 (Ind.
1993) (affirming the trial court’s denial of a motion for a change of judge where the petitioner argued that the
adverse publicity that the post-conviction court received as a result of granting an unrelated petition for post-
conviction relief would cause the post-conviction court to be biased against granting post-conviction relief in
petitioner’s case), cert. denied.
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 23 of 26
[32] We restate Robinson’s second argument as whether the post-conviction court
clearly erred in denying Robinson’s motion for a change of judge because the
post-conviction court’s 1998-2002 tenure as a deputy prosecutor supports a
rational inference of bias or prejudice against Robinson. In Calvert v. State, 498
N.E.2d 105, 107 (Ind. Ct. App. 1986), this Court concluded “that a trial judge
must disqualify [her]self from a proceeding in which [s]he has actively served as
an attorney for one of the parties regardless of whether actual bias or prejudice
exists.” Here, there is no allegation that the post-conviction court judge actively
served as a deputy prosecutor on Robinson’s case. Indeed, this would have
been an impossibility because the post-conviction court judge left the
prosecutor’s office in 2002, fourteen years before the State charged Robinson
with three counts of Level 3 felony robbery with a deadly weapon and twenty-
one years before Robinson’s upcoming hearing on his post-conviction petition.
Given the remoteness in time of the post-conviction court’s tenure in the
Elkhart Prosecutor’s Office in relation to the charges against Robinson and his
upcoming post-conviction hearing, Robinson has failed to show how the post-
conviction court’s 1998-2002 tenure as a deputy prosecutor supports a rational
inference of bias or prejudice against Robinson. See Bloomington Magazine, Inc. v.
Kiang, 961 N.E.2d 61, 66 (Ind. Ct. App. 2012) (explaining that the proximity in
time of the historical facts alleged in the affidavit to the matter concerning the
motion for a change of judge is a relevant inquiry).
[33] Lastly, we restate Robinson’s third argument as whether the post-conviction
court clearly erred in denying Robinson’s motion for a change of judge because
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 24 of 26
the post-conviction court judge’s 1992-2003 marriage to Cappelletti supports a
rational inference of bias or prejudice against Robinson. We note that the post-
conviction court judge’s marriage to Cappelletti ended thirteen years before the
State charged Robinson with three counts of Level 3 felony robbery while
armed with a deadly weapon and twenty years before Cappelletti’s potential
testimony in Robinson’s post-conviction case. Robinson’s affidavit does not
allege that any relationship existed between Cappelletti and the post-conviction
court judge after their marriage had been dissolved. Indeed, in her order
denying Robinson’s motion for a change of judge, the post-conviction court
judge specifically noted that she had not had contact with Cappelletti since their
marriage had been dissolved in 2003. Given the remoteness in time of the
post-conviction court judge’s marriage to Cappelletti to the charges against
Robinson and his upcoming post-conviction hearing, Robinson has failed to
show that this prior marriage supports a rational inference of bias or prejudice
against Robinson. See Bloomington Magazine, 961 N.E. 2d at 66. See also
McKinney v. State, 873 N.E.2d 630, 640 (Ind. Ct. App. 2007) (explaining that
where the personal relationship between the trial court judge and her former
employee, who was the murder victim’s mother, had ended twenty years before
the defendant’s trial and the defendant had not alleged any facts suggesting that
any relationship existed between the two after that employment had been
terminated, the trial court did not clearly err in denying defendant’s motion for
a change of judge), trans. denied.
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 25 of 26
Conclusion
[34] In sum, the recited historical facts on which Robinson based his motion for a
change of judge simply do not support a rational inference of bias or prejudice
against Robinson as contemplated by Post-Conviction Rule 1(4)(b). We further
note that the post-conviction court has neither expressed an opinion on the
merits of Robinson’s case nor attacked his character. Accordingly, because we
are not left with a definite and firm conviction that a mistake has been made,
we conclude that the post-conviction court did not clearly err in denying
Robinson’s motion for a change of judge. See Garland, 788 N.E.2d at 433. We,
therefore, affirm the post-conviction court’s denial of Robinson’s motion. See
Pruitt, 903 N.E.2d at 939 (explaining that where Pruitt’s post-conviction court
judge was the same judge who had presided over his trial and where Pruitt’s
affidavit in support of his motion for a change of judge had shown no historical
facts that had demonstrated personal bias on the part of the post-conviction
court judge, Pruitt had been provided with a full and fair post-conviction relief
hearing before an impartial judge).
[35] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Opinion 22A-PC-1102| August 23, 2023 Page 26 of 26