Court: Indiana Court of Appeals; August 15, 1990; Indiana; State Appellate Court
Appellant Stanley Smith was convicted of multiple offenses, including driving while intoxicated with a prior conviction and several counts of battery and intimidation, all classified as Class D felonies and a Class A misdemeanor. He received seven consecutive two-year sentences from Judge Thomas Johnson, who later ceased to be a judge due to the abolition of the Greene County Court and the establishment of the Greene Superior Court. Following an appellate court remand for a statement of reasons for the sentencing, Judge Johnson held a hearing, during which Smith filed a motion for a change of judge, claiming bias due to Judge Johnson's failure to articulate his reasons for the sentence enhancement. Judge Johnson denied this motion, asserting authority to address the remand. Smith argued that Judge Holt, the new presiding judge, should have presided over the hearing instead. The court found that Smith had no right to a change of judge during sentencing proceedings, as established by precedent, and that he waived any error by not arguing the merits of his motion at the hearing. Additionally, it was noted that under Indiana Trial Rule 63(A), Judge Johnson was authorized to make post-hearing decisions since he presided over the original trial.
Smith argued that Judge Johnson lacked jurisdiction to act in his case after no longer being a judge in the Greene Superior Court, asserting that only Judge Holt, the presiding judge, could proceed unless Judge Holt appointed Judge Johnson as a special judge. However, precedent from State v. Smith (1973) established that a trial judge retains jurisdiction akin to a special judge if they had previously presided over the case. This principle was upheld in Bailey v. Sullivan (1982), where a defeated judge still had the authority to rule on post-trial motions because of their familiarity with the case.
The court determined that Judge Johnson was appropriate to document his reasons for imposing consecutive sentences since he had presided over the trial and sentencing. Smith's argument regarding the long delay in resentencing was also addressed; although the court of appeals' decision was certified on May 3, 1989, the trial court could not act until certification occurred. The appellate decision affirmed Smith's convictions but required specific reasons for consecutive sentences. Smith had filed pro se writs requesting his return for resentencing or concurrent sentences.
The trial court scheduled a hearing for June 12, 1989, without any objection from Smith concerning the timeline. At the hearing, the court provided reasons for consecutive sentences while crediting Smith for time served until that date. Smith's claim that the delay mandated his discharge or concurrent sentences lacked legal support. The court's actions were deemed timely and appropriate, and Smith could not claim error due to procedures he had agreed to. Ultimately, the court affirmed the decision, noting that a change of judge could only be sought with a showing of bias or prejudice.
