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Cheek v. State

Court of Appeals of Indiana

June 22, 2017

William Patrick Cheek, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Howard Superior Court. The Honorable William C. Menges, Jr., Judge. Trial Court Cause No. 34D01-1510-F5-894

          Attorney for Appellant Donald E.C. Leicht Kokomo, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

          Shepard, Senior Judge

         [¶1] Appellant William Patrick Cheek contends that the trial judge in his case should have recused in light of the Prosecuting Attorney's participation on the judge's re-election committee. Like our colleagues in the parallel appeal of Abney v. State, we conclude that the Code of Judicial Conduct did not require recusal.

         Facts and Procedural History

         [¶2] In October 2015, the State charged Cheek with three felony drug offenses. After Cheek failed to appear for a February 2016 pre-trial conference, the State charged him with the additional offense of failure to appear. At his jury trial on that charge, Cheek filed a motion to recuse. Once the jury was selected, but out of its presence, the trial court held a hearing on Cheek's motion and thereafter denied the motion. Cheek was found guilty of failing to appear, a Level 6 felony, [1] and was sentenced to 730 days executed. He now appeals the denial of his motion to recuse, his conviction, and his sentence.

         Discussion and Decision

         I. Recusal of Trial Judge

         [¶3] Cheek contends that the fact that the Howard County Prosecutor was on Judge William Menges' re-election committee demonstrates a personal bias by Judge Menges such that his recusal was required.

         [¶4] This Court has recently described the standard for our review of decisions on motions to recuse. Writing for a unanimous panel, Judge Brown said:

A ruling upon a motion to recuse rests within the sound discretion of the trial judge and will be reversed only upon a showing of abuse of that discretion. An abuse of discretion occurs when the trial court's decision is against the logic and effect of the facts and circumstances before it. When reviewing a trial judge's decision not to disqualify h[im]self, we presume that the trial judge is unbiased. 'In order to overcome that presumption, the appellant must demonstrate actual personal bias.' In addition, the mere appearance of bias and partiality may require recusal if an objective person, knowledgeable of all the circumstances, would have a rational basis for doubting the judge's impartiality. Upon review of a judge's failure to recuse, we will assume that a judge would have complied with the obligation to recuse had there been any reasonable question concerning impartiality, unless we discern circumstances which support a contrary conclusion.

Bloomington Magazine, Inc. v. Kiang, 961 N.E.2d 61, 63-64 (Ind.Ct.App. 2012) (citations omitted).

         [¶5] Although the Indiana Code of Judicial Conduct fixes a judge's obligations, these obligations do not create a freestanding right of enforcement for private parties; rather, each judge is to enforce these obligations against himself or herself. Mathews v. State, 64 N.E.3d 1250 (Ind.Ct.App. 2016), trans. denied. Yet, we note the relevant canons as a backdrop to the issue at hand. Canon 2 directs that Indiana judges perform the duties of their judicial office impartially, competently, and diligently. More particularly, Rule 2.11 concerns disqualification and provides in relevant part:

(A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality* might reasonably be questioned, including but not ...

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