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

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Apr 13 2020, 10:19 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
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estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffery Haupt Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Sierra A. Murray
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Edward Luther, Jr., April 13, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2542
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Margot F. Reagan,
Appellee-Plaintiff Judge
The Honorable Julie Verheye,
Magistrate
Trial Court Cause No.
71D04-1803-CM-948
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020 Page 1 of 5
[1] Robert Edward Luther, Jr. was convicted, following a bench trial, of Class A
misdemeanor conversion. Luther appeals from the denial of his oral motion for
the recusal of the trial judge, who was his lawyer in two unrelated cases about
twenty years prior.
[2] We affirm.
Facts & Procedural History
[3] On March 7, 2018, the State charged Luther with Class A misdemeanor
conversion, alleging that he had knowingly or intentionally exerted
unauthorized control over property at a Target store. After continuances
related to Luther’s failure to appear on two separate occasions, resulting in the
issuance of warrants, his bench trial commenced on October 10, 2019.
[4] At the beginning of the trial, Luther’s counsel made an oral motion for the
sitting magistrate to recuse herself due to her prior attorney-client relationship
with Luther “on two cases back in 1999 and 2000.” Transcript at 2. The
magistrate responded that she had “absolutely no recollection” of the cases and
did not even remember Luther. Id. The magistrate then indicated, “I don’t feel
the need to [recuse].” Id. Defense counsel responded, “Well then, we’ll go
forward then.” Id.
[5] Following the presentation of evidence, the trial court found Luther guilty as
charged and sentenced him to sixty days to be served through St. Joseph
County Community Corrections. Luther now appeals.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020 Page 2 of 5
Discussion & Decision
[6] Luther claims that he was “denied a fair and impartial trial when the trial court
failed to properly address whether the trial court magistrate’s prior
representation of him would cause reasonable minds to be able to determine
whether her impartiality would be impaired.” Appellant’s Brief at 7. His
appellate argument is improperly focused on the Indiana Code of Judicial
Conduct (the Code) and disciplinary actions rather than reversible error.
[7] As our Supreme Court has recognized, it is “not reversible error, absent a
showing of prejudice, for a judge to refuse to recuse [her]self in a criminal case
when [s]he had previously represented the defendant in an unrelated criminal
matter.” Matter of Edwards, 694 N.E.2d 701, 710 (Ind. 1998) (citing Hammond v.
State, 594 N.E.2d 509, 514 (Ind. App. 1992), trans. denied); see also Smith v. State,
477 N.E.2d 857, 864 (Ind. 1985) (“The record must show actual bias and
prejudice against the defendant before a conviction will be reversed on the
ground that the trial judge should have been so disqualified.”). “Whether
presiding over the case might nevertheless be violative of the Code of Judicial
Conduct is, however, a related but separate question from whether it might
constitute reversible error.” Matter of Edwards, 694 N.E.2d at 710. Here, we are
tasked with addressing only the former question.
[8] “The law presumes that a judge is unbiased and unprejudiced.” Garland v.
State, 788 N.E.2d 425, 433 (Ind. 2003). “Ordinarily in a criminal case, parties
seeking to overcome the presumption of judicial impartiality must move for a
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020 Page 3 of 5
change of judge under Rule 12 of the Indiana Rules of Criminal Procedure.”
Mathews v. State, 64 N.E.3d 1250, 1253 (Ind. Ct. App. 2016), trans. denied. This
rule mandates specific timelines and procedures when moving for a change of
judge. 1 See Flowers v. State, 738 N.E.2d 1051, 1059 (Ind. 2000) (“The law is
settled that a defendant is not entitled to a change of judge where the mandates
of Criminal Rule 12 have not been followed.”).
[9] Luther does not, and cannot, contend that he complied with the mandates of
Crim. R. 12. Thus, he was clearly not entitled to a change of judge in this case.
See Flowers, 738 N.E.2d at 1059.
[10] Moreover, we reject Luther’s argument that he is nonetheless entitled to relief
because the Code required the magistrate to recuse herself. Rule 2.11(A) of the
Code provides that “[a] judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be questioned[.]”
Luther does not allege actual bias or prejudice against him on the magistrate’s
part, and the record reflects no such bias or prejudice. Rather, he argues that
her impartiality might have been reasonably questioned considering her former
1
Crim. R. 12(B) provides:
In felony and misdemeanor cases, the state or defendant may request a change of judge for bias
or prejudice. The party shall timely file an affidavit that the judge has a personal bias or
prejudice against the state or defendant. The affidavit shall state the facts and the reasons for the
belief that such bias or prejudice exists, and shall be accompanied by a certificate from the
attorney of record that the attorney in good faith believes that the historical facts recited in the
affidavit are true. The request shall be granted if the historical facts recited in the affidavit
support a rational inference of bias or prejudice.
Further, pursuant to Crim. R. 12(D), the motion must be made within thirty days of the initial hearing unless
due diligence could not have discovered the reasons for recusal within that period.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2542 | April 13, 2020 Page 4 of 5
representation of him had the magistrate “t[aken] the time to look into possible
issues that may impact the parties’ arguments towards disqualification.”
Appellant’s Brief at 9. The proposition underlying Luther’s arguments has been
directly rejected by this court in Mathews, where we held that the Code does not
supply a freestanding mechanism for relief, independent of a properly brought
Crim. R. 12 motion. Mathews, 64 N.E.3d at 1255 (“It is undeniable that the
Code fixes a judge’s obligations. We hold, however, that those obligations do
not create freestanding rights of enforcement in private parties.”). Accordingly,
Luther is not entitled to consideration of his freestanding claim for recusal
under the Code. See id. at 1256.
[11] Judgment affirmed.
Bailey, J. and Crone, J., concur.
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