David A. Mathews, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff
from the Adams Superior Court of Appeals Case No.
01A02-1601-CR-104 The Honorable Patrick R. Miller, Judge.
Trial Court Cause No. 01D01-1411-F6-52
Attorney for Appellant Kimberly A. Jackson Indianapolis,
Attorneys for Appellee Gregory F. Zoeller Attorney General of
Indiana Karl Scharnberg Deputy Attorney General Indianapolis,
David A. Mathews ("Mathews") was convicted in Adams
Superior Court of misdemeanor operating a vehicle while
intoxicated and felony obstruction of justice. Mathews
appeals the order of the trial judge, his former lawyer in a
tangentially related case, denying his motion for recusal and
requests a new trial. We affirm.
and Procedural Posture
On July 24, 2003, Mathews was charged with several violations
of Title Nine of the Indiana Code, "Motor Vehicles,
" including Class D felony operating a vehicle while
intoxicated endangering a person. The case was heard in Adams
Superior Court under cause number 01D01-0307-FD-053
("the 2003 Case"). Patrick R. Miller, then a public
defender ("Attorney Miller"), now Adams Superior
Court judge ("Judge Miller"), was appointed counsel
to Mathews. On November 26, 2003, with the advice of Attorney
Miller, Mathews pleaded guilty to the felony charge in
exchange for dismissal of the remaining charges against him.
Mathews was sentenced the same day, with most of the sentence
suspended to probation.
On June 3, 2004, new charges were filed against Mathews. As a
result, on July 22, 2004, Mathews's probation officer
filed a petition of probation violation in the 2003 Case. The
court appointed Attorney Miller to represent Mathews again in
the probation violation proceeding. Attorney Miller noticed
his intent to decline the appointment on August 3, 2004, and
was withdrawn by the court the same day. On March 15,
2005, Mathews admitted to violating his probation in the 2003
On May 16, 2011, almost eight years after being charged in
the 2003 Case, Mathews was charged with Class D felony
intimidation and Class B misdemeanor public intoxication. In
its final disposition,  the case was heard under cause number
01C01-1202-FD-001 ("the 2011 Case"). In light of
his prior record, including the 2003 Case, the State sought
habitual substance offender status for Mathews under
now-repealed Indiana Code § 35-50-2-10(b), relying in
part on the conviction in the 2003 Case as a predicate for
the habitual substance offender finding. The proceeding was
to be bifurcated, with the felony and misdemeanor charges to
be heard in the first phase and the recidivist charge in the
second. Presiding over Mathews's February 8, 2012, jury
trial in Adams Superior Court was Attorney Miller, who had
since been elected in 2008 to become Judge Miller, as of
January 1, 2009, all more than five years after his
representation of Mathews as a public defender.
At the conclusion of the first phase, the jury returned
guilty verdicts on the felony and misdemeanor charges.
Mathews then moved for a mistrial, arguing that Judge
Miller's representation of Mathews in the 2003 Case
disqualified Judge Miller from presiding over proceedings in
the 2011 Case because the convictions in the 2003 Case were
to be part of the State's evidence on the recidivist
charge in the 2011 Case. Judge Miller denied Mathews's
motion but, out of an abundance of caution and concern for
the appearance of impropriety, transferred the case to the
judge of Adams Circuit Court to hear the recidivist charge.
The circuit court jury found Mathews to be a habitual
substance offender. After sentencing, Mathews was committed
to the Department of Correction. This court affirmed Judge
Miller and Mathews's convictions on direct appeal.
Mathews v. State, 978 N.E.2d 438 (Ind.Ct.App. 2012).
On November 7, 2014, while on parole from his sentence in the
2011 Case, Mathews was charged with a number of new motor
vehicle offenses, including Class A misdemeanor operating a
vehicle while intoxicated, and with Level 6 felony
obstruction of justice, stemming from Mathews's refusal
to comply with a search warrant ordering a draw of his blood.
These charges, heard in Adams Superior Court under cause
number 01D01-1411-F6-0052 ("the 2014 Case"),
underlie Mathews's current appeal. As a result of the
charges, Mathews was found to have violated his parole in the
2011 Case and remanded to the Department of Correction.
On November 10, 2014, more than eleven years after being
charged in the 2003 Case, Mathews was brought before Judge
Miller for his initial hearing in the 2014 Case. Neither
Mathews, who was unrepresented at the initial hearing, nor
Judge Miller brought up Judge Miller's former
representation of Mathews in the 2003 Case or Mathews's
motion for a mistrial in the 2011 Case. Judge Miller
recommended that Mathews decide quickly whether he wanted to
retain private counsel or have counsel appointed, or risk
missing important deadlines and thus "giv[ing] up
rights, pleadings or defenses" available to him. Tr. p.
12. On December 15, 2014, Judge Miller appointed a public
defender to Mathews's case.
On April 1, 2015, Mathews and counsel appeared before Judge
Miller for a pretrial conference. There, Mathews made the
following statement to the court:
Your Honor, I would like to make two requests of my public
defender at this time. [First, I want him to move to dismiss
for lack of a speedy trial.] And the second request your
honor, is that I would like him to file a Change of Venue or
Change of Judge due to your bias because of the past
experiences that I had with you on the last trial. You know I
had you thrown off the bench your honor and I don't
believe that you can make any fair judgment without being uh
showing your personal and professional feelings towards me or
the decisions that you make in that courtroom. Um, that is
just how I feel. I still feel that I got denied a fair trial
in the last process that I went in front of you your honor.
And I wish for [my attorney] to file both of those if he
Id. at 26-27. Mathews's counsel then requested
to be withdrawn from the representation for lack of his
client's trust. However, Mathews denied that he wanted a
different attorney. Judge Miller denied counsel's
request, invited him to file a formal motion to withdraw if
he wished, and further invited counsel,
if you believe that it is appropriate and not [frivolous] to
file a motion to dismiss or motion to change venue or judge,
feel free to file it, I will address them promptly at that
point in time once ...