author: Sharpnack, Senior Judge.

text:
    Corey Lamont SPURLOCK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 49A02-1708-CR-1875
    Court of Appeals of Indiana.
    FILED July 6, 2018
    Attorney for Appellant: Victoria L. Bailey, Marion County Public Defender Agency, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, Indiana
   Sharpnack, Senior Judge.

Statement of the Case

[1] Corey Lamont Spurlock appeals the sentence imposed by the trial court at his resentencing. We affirm.

Issue

[2] Spurlock presents one issue for our review, which we restate as: whether the trial court erred in resentencing him.

Facts and Procedural History

[3] The facts underlying Spurlock's convictions, as set out in his direct appeal, are as follows:

On November 3, 1999, Indianapolis Police Officers received a report of a dead body at 2427 North Oxford Street. There were no signs of forced entry at the address, but once there, officers found the dead bodies of Michael Haddix, Jr. and Crystal Davenport. Haddix had been shot three times including a fatal wound to the back of his head. Davenport had been fatally shot in the forehead.
Haddix's father testified that it was likely that Haddix kept a gun in his house for protection. However, no weapon was retrieved from Haddix's residence after his death. Further, Haddix's father had given Haddix some money, and Haddix recently had won some money, but no cash was found in Haddix's home after his death.
On November 12, 1999, Aurelia Mason heard gunshots coming from the residence of her next-door neighbors. When police officers arrived, there was no sign of forced entry at 2960 North Park Avenue, but officers found the dead bodies of Benjamin Boone and Doris Johnson [Johnson]. Boone had been fatally shot in the back of the head and neck. Johnson had been fatally shot three times in the back of the head and neck.
Boone and Johnson both used crack cocaine in their house. There was also a gun inside the house. Ronald Freeman, Boone's friend, was at Boone's house in the evening on November 11, 1999. Freeman smoked crack cocaine with Boone and Johnson, and then left shortly after two other men arrived at Boone's house. Freeman testified that as he walked away from the house he heard gunshots and saw the flash from a gun being fired. Police officers recovered several spent shell casings from the residence in addition to bullet fragments.
In March of 2002, during the course of another investigation, homicide detectives received information about a suspect in the four murders named "Lolo" and the location where "Lolo" lived. Detectives contacted Defendant's grandmother who told them that Defendant's nickname was "Lolo." Detective Roy West asked Defendant's grandmother to have Defendant contact him. That same day West received a phone call from Defendant. Defendant agreed to meet with West at the police headquarters the next day after Defendant finished work.
On March 7, 2002, Defendant arrived at police headquarters to discuss the four homicides that are the subject of this appeal. Defendant was shown some photographs to determine if he could identify any individuals included in the photo arrays. Defendant confirmed that one of his nicknames was "Lolo." Detectives West and Tudor advised Defendant of his rights and questioned him further about the homicides. Defendant made audio-taped statements to the detectives regarding the two incidents in November of 1999. Defendant identified Terrence Swann and Anthony "Banks" Johnson [Banks] as the primary perpetrators of the homicides that were committed as part of the robberies of those victims. Defendant returned home after giving those statements to the detectives.
The following day, Defendant telephoned Detective West and informed him that he was no longer going to cooperate with the police, and that what he had told them the previous day was not true.

Spurlock v. State , No. 49A05-0305-CR-247, slip op. at 2-4, 808 N.E.2d 1241 (Ind. Ct. App. May 6, 2004).

[4] On March 26, 2002, the State charged Spurlock with four counts of murder, two counts of conspiracy to commit robbery, both as Class A felonies, and two counts of robbery, both as Class A felonies. In March 2003, a jury trial was held, at the conclusion of which the jury returned verdicts of guilty on all counts. At sentencing, the trial court merged the two robbery convictions into the two conspiracy convictions and sentenced Spurlock to forty-five years on each of the four murder convictions, twenty years on one conspiracy conviction, and thirty years on the other conspiracy conviction. All the terms were to be served concurrently except the thirty years, which was to be served consecutively to the other terms, for an aggregate sentence of seventy-five years. Spurlock filed a direct appeal, and, on May 6, 2004, this Court issued a memorandum decision affirming his convictions. See Spurlock , No. 49A05-0305-CR-247.

[5] In March 2005, Spurlock filed a petition for post-conviction relief, which the trial court dismissed without prejudice on September 8, 2008, for failure to prosecute. In October 2014, Spurlock again filed a petition for post-conviction relief, which was later amended. Following a hearing and the filing of proposed findings by the parties, the trial court denied Spurlock's petition. Spurlock appealed, and, in February 2017, a panel of this Court affirmed in part and reversed in part the decision of the post-conviction court. See Spurlock v. State , No. 49A05-1609-PC-1976, 2017 WL 655877 (Ind. Ct. App. Feb. 17, 2017). It was determined that Spurlock's appellate counsel was ineffective for failing to raise a sentencing error, specifically that the bodily injury stemming from Spurlock's murder convictions was used also as the basis for elevating his conspiracy convictions to Class A felonies. See id. , slip op. at 18. Consequently, the case was remanded to the trial court for entry of judgment of conviction on the conspiracy counts to be reduced from Class A felonies to Class B felonies and for resentencing.

[6] On remand, the trial court resentenced Spurlock in July 2017 to a total of sixty-five years. He received forty-five years for each of the four murders and ten years for one of the conspiracy counts, all to be served concurrently. In addition, the trial court sentenced him to twenty years on the second conspiracy count, to be served consecutively to the other counts. He now appeals this sentence.

Discussion and Decision

[7] Spurlock argues the trial court erred in resentencing him because his sentence does not conform to the dictates of Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004). Blakely applies and further explains the rule previously set forth in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed. 2d 435 (2000) prohibiting the reliance on facts not found by a jury or admitted by the defendant to enhance a sentence above the presumptive, with the exception of criminal history. Blakely , 124 S.Ct. at 2536. We must first determine whether Blakely applies to the present case.

[8] Spurlock committed these crimes in 1999; he was originally sentenced in 2003; Blakely was decided in 2004; Spurlock was resentenced in 2017. The fact that Spurlock's crimes and original sentencing hearing took place pre- Blakely does not preclude him from being entitled to the Blakely protections upon resentencing post- Blakely . See Ben-Yisrayl v. State , 908 N.E.2d 1223, 1230-31 (Ind. Ct. App. 2009) (holding that defendant was entitled to resentencing hearing that complied with dictates of Blakely even though he committed crimes long before Blakely was decided and was resentenced after Blakely was decided), trans. denied . Having determined that Spurlock was entitled to the protections of Blakely at his resentencing, we turn to his failure to raise a Blakely objection during the resentencing process.

[9] In his brief to this Court, Spurlock concedes that he failed to make a Blakely objection at his resentencing hearing. Appellant's Br. p. 15. A claim is generally considered forfeited or waived if it is not raised in the trial court. Smylie v. State , 823 N.E.2d 679, 689 (Ind. 2005). Although stating this general rule, in Smylie our supreme court rejected such an argument because defendant's trial counsel could not have anticipated the holding of Blakely before it was even issued. Here, however, Spurlock's resentencing hearing was held in 2017, more than thirteen years after the Blakely decision and more than twelve years after the Smylie decision. As the issue was settled and well-known by the time of Spurlock's resentencing hearing, we conclude an objection was required to preserve the issue for appeal. See Smylie , 823 N.E.2d at 689 (stating it is entirely possible for defendants to waive or forfeit their ability to appeal their sentence on Blakely grounds).

[10] In an attempt to avoid forfeiture of his claim, Spurlock asserts fundamental error. The fundamental error doctrine is extremely narrow and applies only when the error amounts to a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process. Lehman v. State , 926 N.E.2d 35, 38 (Ind. Ct. App. 2010), trans. denied . Thus, this doctrine is available only in egregious circumstances. Brown v. State , 929 N.E.2d 204, 207 (Ind. 2010).

[11] Spurlock's claim concerns the second of his two conspiracy convictions, which upon remand was entered as a Class B felony. At the time Spurlock committed these crimes in 1999, Indiana Code section 35-50-2-5 (1977) provided:

A person who commits a Class B felony shall be imprisoned for a fixed term of ten (10) years, with not more than ten (10) years added for aggravating circumstances or not more than four (4) years subtracted for mitigating circumstances. In addition, he may be fined not more than ten thousand dollars ($10,000).

[12] At the resentencing hearing, the trial court sentenced Spurlock to an enhanced term of twenty years on the second conspiracy conviction involving the robbery and murders of Boone and Johnson on November 12. As applied to Indiana's presumptive sentencing scheme under which Spurlock was sentenced, Blakely prohibits the reliance on facts not found by a jury or admitted by the defendant to enhance a sentence above the presumptive, with the exception of criminal history. 124 S.Ct. at 2536. Accordingly, upon resentencing, the trial court could not enhance Spurlock's sentence based on additional facts unless those facts are either (1) a prior conviction, (2) facts found by a jury beyond a reasonable doubt, (3) facts admitted by Spurlock, or (4) facts found by the sentencing judge after Spurlock waived his Blakely rights and consented to judicial factfinding. See Robertson v. State , 871 N.E.2d 280, 286 (Ind. 2007).

[13] At Spurlock's resentencing, the trial court stated, "That 20 years is aggravated based, as [original sentencing judge] indicated, going in a second time and I think that justifies an aggravated sentence." Resent'g Tr. pp. 41-42. The trial court was referring to these comments of the trial judge at Spurlock's original sentencing hearing:

Count VII, conspiracy to commit robbery, this is the robbery of Benjamin Boone and Doris Johnson that was committed seven days after the robbery and murders of Crystal Davenport and Michael Haddix-the Court is going to find that the aggravators and mitigators weigh on that because the Court is going to add the aggravating circumstance that you knew what had happened during the first robbery and you went back for a second robbery-you conspired with these people in this second robbery so the Court's going to give you 30 years on Count VII.
* * * * * *
Again, Mr. Spurlock, the evidence in this case is that you were addicted to heroin-you and your drug buddies, your fellow heroin addicts did the first robbery, and during the course of that robbery-even if you didn't know that your friends were horrible murderers, but after your friends killed Crystal Davenport and Michael Haddix on November the 3rd, you went back with them on November the 8th[sic] to do another robbery of another set of drug dealers, and the fact that even-even though you weren't the trigger man, you knew what they had done, you knew what they were capable of, you knew what had happened in the first robbery-in your statement to the police officer, your own words, you were-you may have been afraid to tell but you had no business going with them the second time, but you did, and you are responsible.

Sent'g Tr. pp. 34, 35.

[14] The fact that Spurlock participated in the second drug-related robbery/murders with full knowledge of what had occurred during the first drug-related robbery/murders is a Blakely permissible reason for enhancing his sentence because it is based on facts found by a jury beyond a reasonable doubt. The information as well as the jury instructions charged that Spurlock participated in the first robbery/murders on or about November 3, 1999 and the second robbery/murders on or about November 12, 1999. See Appellant's Appendix Direct Appeal Vol. 1, pp. 38-42, 174-188. In support of these charges, at trial the State presented Spurlock's statements to police, which were admitted into evidence. In his statements, Spurlock acknowledged that he went with Swann and Banks to the Haddix/Davenport residence and saw Swann shoot Davenport in the head. Direct Appeal Exhibits Vol. 1, pp. 162, 165. Further, the State presented the testimony of one of the responding police officers that he found two bodies in a residence on North Oxford Street (i.e., the Haddix/Davenport residence) on November 3, 1999. Direct Appeal Tr. Vol. 1, pp. 59, 60, 64.

[15] In his statements to police, Spurlock also discussed going to the Boone/Johnson residence with Swann and Banks. Direct Appeal Exhibits Vol. 1, pp. 128-29. In addition, Aurelia Mason, the next-door-neighbor of Boone and Johnson, testified that she heard gunshots on November 12, 1999 at approximately 1:19 a.m. Direct Appeal Tr. Vol. 1, pp. 94-97. Finally, Ronald Freeman, a friend of Boone's testified that he was at the Boone/Johnson residence from approximately 7:30 p.m. on November 11, 1999 to approximately 1:00 a.m. on November 12, 199 getting high with Boone and Johnson on crack cocaine and heroin. Id. at 123. He explained that two men came to the front door and were admitted into the residence by Boone and that soon thereafter he left. As he was walking away from the house, he heard gun shots and saw a flash in the window. Id. at 128-29.

[16] The fact that Spurlock participated in the second robbery/murders after he participated in the first robbery/murders is implicit in his convictions on all charges. All the evidence at trial showed that the first robbery/murders occurred on or about November 3-with Spurlock present-before the second robbery/murders occurred on or about November 12, at which Spurlock was also present. Therefore, implicit in the jury's verdicts is the finding beyond a reasonable doubt that Spurlock embarked on the second effort to rob drug dealers with full knowledge that the first robbery had resulted in murder of the victims. Hence, this fact could properly be relied on to enhance his sentence. Cf. Ryle v. State , 842 N.E.2d 320, 323-25 (Ind. 2005) (holding that trial court could properly enhance sentence without violating Blakely based on fact that defendant was on probation at time of current offense if finding rested on prior judicial records as reflected in presentence investigation report prepared by probation officer).

Conclusion

[17] In light of these circumstances, we conclude that Spurlock has not met his burden of showing that the enhancement of his sentence based upon facts implicit in his convictions resulted in error that denied him fundamental due process. Accordingly, we find no fundamental error.

[18] Affirmed.

Mathias, J., and Pyle, J., concur.

      Ind. Code § 35-42-1-1 (1997).

      Ind. Code §§ 35-41-5-2 (1977), 35-42-5-1 (1984).

      Ind. Code § 35-42-5-1.

      Although a major revision to our sentencing statutes took effect on April 25, 2005, replacing the presumptive sentencing scheme with an advisory sentencing scheme, here we apply the presumptive sentencing scheme that was in effect at the time Spurlock committed these crimes in 1999. See Gutermuth v. State , 868 N.E.2d 427, 431 n.4 (Ind. 2007) (explaining that 2005 revisions to sentencing statutes did not alter long-standing rule that sentencing statute in effect at time crime is committed governs sentence for crime).


source: Caselaw Access Project

author: Baker, Judge.

license: Public Domain

text:
    STATE of Indiana, Appellant-Respondent, v. Cassey GICK, Appellee-Petitioner
    Court of Appeals Case No. 18A-CR-241
    Court of Appeals of Indiana.
    FILED July 12, 2018
    Attorneys for Appellant: Curtis T. Hill, Jr., Attorney General of Indiana, Kyle Hunter, Deputy Attorney General, Indianapolis, Indiana
    MEMORANDUM DECISION
   Baker, Judge.

[1] The State appeals the trial court's order requiring the Department of Correction (DOC) to permit Cassey Gick, a sex offender against a minor victim, to have visitation with her minor child while Gick is in the custody of the DOC. Finding that the trial court exceeded its authority, we reverse and remand with instructions.

Facts

[2] On November 28, 2016, Gick pleaded guilty to Level 4 felony sexual misconduct with a minor. She was sentenced to six years, with four years executed and two years suspended.

[3] The DOC's general policy is that a sex offender who committed a crime against a minor must seek permission from the DOC to have visitation with a minor. The unit team at the facility where a particular inmate is housed, including the warden of the facility, makes the initial determination as to whether permission should be granted. If permission is denied, the inmate may request a case review by the Director of the Sex Offender Management and Monitoring Program (SOMM). The SOMM Director's decision is final and binding on both the correctional facility and the inmate.

[4] Gick has a three-year-old son and requested permission to visit with him during Gick's incarceration. The facility denied the request, and Gick then requested a case review by the SOMM Director. The SOMM Director also denied Gick's request.

[5] In certain situations, an offender may be granted visitation with a minor outside of the normal review process. A warden may, at his or her discretion, allow visitation with a minor in three circumstances:

(1) The offender is in the last stages of a terminal illness and it appears that the offender's death is imminent.
(2) The facility receives a court order instructing it to allow the offender to visit with a specific minor....
(3) A therapeutic visit is requested by the victim's licensed therapist....

Appellant's App. Vol. II p. 66.

[6] After the SOMM Director denied Gick's request, she wrote a letter to the trial court in her criminal case asking for a court order permitting her to have visitation with her son. On September 11, 2017, the trial court issued an order providing as follows:

Whether [the DOC] allows contact between Defendant and Defendant's child is up to DOC. There is nothing in this Court's probation terms or conditions that would preclude Defendant from contacting or communicating with her own child.

Id. at 17. On September 12, 2017, Gick filed a motion to authorize the DOC to permit parent and child visitation, stating that "current facility rules permit parent and child visitation only by authorization of the sentencing Court." Id. at 18. On October 10, 2017, the trial court went a step farther than authorization, ordering the DOC to permit visitation and personal contact between Gick and her son. Id. at 20. The DOC intervened and filed a motion to correct error, which the trial court denied. The State now appeals.

Discussion and Decision

[7] The State argues that the trial court did not have the legal authority to order DOC to allow Gick to visit with her son. A challenge to the trial court's legal authority to act is a question of law that is reviewed de novo. Howard v. Am. Family Mut. Ins. Co. , 928 N.E.2d 281, 283 (Ind. Ct. App. 2010).

[8] Generally speaking, a trial court " 'has no jurisdiction over a prisoner after [s]he has been convicted, sentenced and delivered to prison pursuant to a commitment ....' " Hill v. Duckworth , 679 N.E.2d 938, 939 (Ind. Ct. App. 1997) (quoting Rogers v. Youngblood , 226 Ind. 165, 170, 78 N.E.2d 663, 665 (1948) ). To that end, it is a "long-standing principle that the judiciary is constrained from interfering with the internal procedures and policies of the [DOC]." Kimrey v. Donahue , 861 N.E.2d 379, 383 (Ind. Ct. App. 2007). The rationale for this hands-off approach has been explained as follows:

Courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. The operation of a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. The complex and intractable problems in prisons are not readily susceptible of resolution by judicial decree. Thus, courts will afford substantial deference to the professional expertise of correction officials with respect to the day-to-day operation of prisons and the adoption and execution of prison policies.

Cohn v. Strawhorn , 721 N.E.2d 342, 346 (Ind. Ct. App. 1999) (internal citations omitted).

[9] It is undeniable that the DOC is empowered by statute to control visitation within prisons. Ind. Dep't of Corr. v. Stagg , 556 N.E.2d 1338, 1342 (Ind. Ct. App. 1990). Relevant here is Indiana Code section 11-11-3-9, which explicitly authorizes the DOC to prevent inmates convicted of a sex offense with a minor from having minor visitors. When visitation is denied for this reason, the DOC must provide the inmate with written notice, and the inmate has the right to challenge the denial through DOC's grievance procedures. I.C. § 11-11-3-9(c). This Court has squarely held that Indiana Code section 11-11-3-9 does not create a private cause of action. Medley v. Lemmon , 994 N.E.2d 1177, 1184-85 (Ind. Ct. App. 2013). Likewise, the Administrative Orders and Procedures Act (AOPA) does not afford DOC inmates with a right to judicial review of DOC actions. Ind. Code § 4-21.5-2-5(6). Finally, this Court has found that the DOC's denial of minor visitation to a sex offender who committed an offense against a minor is not a constitutional violation. Doe v. Donahue , 829 N.E.2d 99, 108-11 (Ind. Ct. App. 2005).

[10] Gick, therefore, has no statutory or administrative right to judicial review of the DOC's denial of her visitation request, nor can she claim that the denial was a violation of her constitutional rights. It appears that she was merely seeking the trial court to authorize visitation under the DOC's policy that permits wardens to grant a visitation request if authorized by a trial court. We agree with the State that if the trial court believed visitation was appropriate, it should have issued an order recommending and authorizing such visitation. Instead, the trial court ordered the DOC to allow visitation, which is outside the trial court's legal authority. Therefore, we reverse and remand with instructions to amend the order to provide that visitation between Gick and her son is authorized and recommended, but not ordered.

[11] The judgment of the trial court is reversed and remanded with instructions.

Kirsch, J., and Bradford, J., concur.

      Even if a trial court orders visitation to occur, the DOC policy provides that the warden "may approve a visit with minors who are immediate family members[.]" Appellant's App. Vol. II p. 66. Under any circumstances, therefore, the DOC retains discretion and is the ultimate decision-maker with regard to visitation.


text:
    Charles A. BENSON, Appellant-Plaintiff, v. WANE-TV 15, Rod Hissong, Ted Linn, Angelia Robinson and Adam Widener, Appellees-Defendants
    Court of Appeals Case No. 02A04-1711-CT-2866
    Court of Appeals of Indiana.
    Filed July 12, 2018 Publication Ordered August 21, 2018
    Appellant Pro Se: Charles A. Benson, Bunker Hill, Indiana
    Attorneys for Appellee: Jan M. Carroll, Kara Kapke, Barnes & Thornburg LLP, Indianapolis, Indiana
   Baker, Judge.

[1] Charles Benson appeals the trial court's order dismissing his complaint against Fort Wayne's WANE-TV 15, as well as its current and former reporters and editors (collectively, WANE-TV), for defamation. Finding no error, we affirm.

[2] In January 2016, Benson was charged with attempted murder and related offenses after shooting a Fort Wayne police officer. In the months following that arrest, WANE-TV produced multiple reports related to the criminal proceedings. In the reports, the TV station often referenced Benson's lengthy criminal history, including a 2014 murder charge. In one 2016 report, WANE-TV included a 2014 mugshot of Benson. Benson was ultimately found guilty and found to be an habitual offender; he was sentenced to over sixty-two years in prison. SeeBenson v. State, 73 N.E.3d 198 (Ind. Ct. 2017) (affirming Benson's convictions in his direct appeal), trans. denied.

[3] On January 9, 2017, Benson filed a complaint against WANE-TV. WANE-TV filed an answer, motion to stay, and motion for judgment on the pleadings based on the Frivolous Prisoner Claim Statute. In response, Benson filed a motion to amend his complaint. Following a hearing, on September 18, 2017, the trial court issued an order granting judgment in favor of WANE-TV and denying Benson's motion to amend his complaint. Benson now appeals.

1 [4] The General Assembly enacted the Frivolous Prisoner Claim Statute "to screen and prevent abusive and prolific offender litigation in Indiana." Smith v. Ind. Dep't of Corr., 883 N.E.2d 802, 804 (Ind. 2008). The statute requires trial courts to screen complaints filed by offenders as soon as such complaints are received. The trial court must determine whether the offender's claim is frivolous, is a claim upon which no relief may be granted, or is a claim that seeks monetary relief from a defendant who is immune. I.C. § 34-58-1-2. A claim is frivolous if, among other things, it lacks an arguable basis in law or fact. Id.

2 [5] Truth is a complete defense to defamation. E.g., Melton v. Ousley, 925 N.E.2d 430, 437 (Ind. Ct. App. 2010) ; see alsoJournal-Gazette Co. v. Bandido's, Inc., 712 N.E.2d 446, 457 (Ind. 1999) (holding that the plaintiff has the burden to prove falsity). In this case, the statements complained of by Benson regarding his criminal history, including a 2014 murder charge, are true. Indeed, Benson does not argue, nor did he plead, otherwise. SeeBandido's, 712 N.E.2d at 456 (holding that to establish actual malice, which is a required element of defamation claims, plaintiff must show that statements were false or made with reckless disregard of whether they were false). He argues that WANE-TV's use of a 2014 mugshot was inaccurate and/or misleading, but that does not mean that it was false. Benson concedes that it was a picture of him; it just happened to be a mugshot from two years earlier.

3 [6] Given that all the statements Benson highlights are true, and that the photograph was of Benson, we find that WANE-TV properly found refuge in the defense of truth. As a result, the trial court did not err by finding Benson's claims to be frivolous.

[7] Benson also argues that the trial court should have granted him leave to amend his complaint. His proposed amended complaint, however, contains additional arguments but no new factual allegations. The proposed amended complaint would neither have cured the defects in the original complaint nor have overcome WANE-TV's defense of truth. Therefore, any error in this ruling was harmless.

[8] The judgment of the trial court is affirmed.

Kirsch, J., and Bradford, J., concur.

Order

[1] Appellees, by counsel, filed a Motion to Publish Memorandum Opinion.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellees' Motion to Publish Memorandum Opinion is granted.
2. This Court's opinion heretofore handed down in this cause on July 12, 2018, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 8/21/2018.

[4] Baker, Kirsch, Bradford, JJ., concur.

      A separate opinion related to Benson's lawsuit against a Fort Wayne newspaper on similar grounds is available at Benson v. News-Sentinel , No. 02A03-1711-CT-2865, 106 N.E.3d 544, 2018 WL 3384951 (Ind. Ct. App. July 12, 2018).

      Ind. Code § 34-58-1-1 et seq.

      In this case, the trial court candidly acknowledged that it was "unaware of the need to conduct the review" of Benson's complaint upon receipt of the pleading. Appellees' App. Vol. II p. 10. WANE-TV brought the need for the review to the trial court's attention, at which time it complied. We see no reason that this delay should affect the outcome of this case.

      It has never been determined in Indiana whether publication of a photograph of a plaintiff can constitute defamation. We assume solely for argument's sake that it can, but leave the underlying question for another day and a different case.

      Benson also included claims related to WANE-TV's 2014 reporting on a prior murder charge, arguing that the TV station defamed him by including information regarding his criminal history. The trial court found that these claims are time-barred. Even if they were not time-barred, all the information reported by WANE-TV was substantially true; therefore, Benson cannot establish defamation and the trial court properly entered judgment in favor of the TV station on these claims.
      The TV station concededly was imprecise with its report that Benson had been convicted in the past of aggravated battery, rather than felony battery, and escape from prison, rather than violation of home detention, but this imprecision " 'fits easily within the breathing space that gives life to the First Amendment,' " as the "gist" or "sting" of the profile of Benson's criminal history is the same either way. Bandido's , 712 N.E.2d at 461 (quoting Bose Corp. v. Consumers Union of United States, Inc. , 466 U.S. 485, 513, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) ). Therefore, Benson is not entitled to relief on this basis.


author: Mathias, Judge.

text:
    In the MATTER OF the UNSUPERVISED ESTATE OF Orlando C. LEWIS, Jr.,
    Orlando Lewis, Sr., Appellant-Petitioner, v. Shana Toliver and Kathy Calloway, Appellees-Respondents.
    Court of Appeals Case No. 41A01-1712-EU-2893
    Court of Appeals of Indiana.
    Filed July 13, 2018
    Attorney for Appellant: Daniel J. Zlatic, Rubino, Ruman, Crosmer & Polen, Dyer, Indiana
    Attorney for Appellee, Kathy Calloway: Edward A. McGlone, Terre Haute, Indiana
    Attorneys for Appellee, Shana Toliver: Nathaniel Lee, Jennifer Lee, Faith Alvarez, Lee Cossell & Crowley, LLP, Indianapolis, Indiana

      We note that Lewis, Sr. originally, and incorrectly, brought this appeal as the Special Administrator of the Estate of Lewis, Jr., and Toliver raised this issue in her motion to dismiss which we discuss below. See note 4, infra . However, this is a technicality that we have remedied by editing the caption accordingly. See Auditor of Owen County v. Asset Recovery, Inc. , 991 N.E.2d 984, 986 (Ind. Ct. App. 2013) (explaining that "justice should not be defeated by technicalities.").

   Mathias, Judge.

[1] Orlando Lewis, Sr. ("Lewis, Sr.") appeals the Johnson Superior Court's order rescinding his appointment as the special administrator for the estate of his son Orlando Lewis, Jr. ("the Estate").

[2] We affirm.

Facts and Procedural History

[3] Lewis, Sr. is the father of Orland Lewis, Jr. ("Lewis, Jr."). Lewis, Jr. had two children-Son J.T., born in 2011 to Shana Toliver ("Toliver") and Daughter K.L., born in 2015 to Lewis, Jr.'s wife Shante Lewis ("Shante"). Toliver and Lewis, Jr. shared custody of Son J.T. with Toliver having primary physical custody.

[4] On July 22, 2017, a commercial bus owned by Miller Transportation, Inc. ran into the back of a stopped vehicle occupied by Lewis, Jr., his wife Shante, Daughter K.L., and Shante's mother Rose Ann Pettus ("Rose Ann") on a highway in Monroe County. Daughter K.L. was the only survivor. Aside from Daughter K.L., Lewis, Jr. was survived by his father, his mother Sharon Norals, and Son J.T.

[5] After the accident, Shante's aunt and Rose Ann's sister Kathy Calloway ("Calloway") rushed to the hospital where Daughter K.L. had been taken for treatment of her broken leg and other injuries. There, Calloway learned that Daughter K.L. was the only survivor, and after speaking with a caseworker from the Department of Child Services and completing the paperwork provided by that caseworker, Daughter K.L. was released from the hospital and into Calloway's care. Subsequently, Calloway filed for and was appointed as Daughter K.L.'s temporary guardian on August 14. And at the time of the events underlying this appeal, Calloway was awaiting a February 2018 hearing to become Daughter K.L.'s permanent guardian.

[6] Three days after the accident, on July 25, Lewis, Sr., who at all relevant times has lived in Illinois, filed a petition for appointment as special administrator for the sole purpose of pursuing damages for the wrongful deaths of Lewis, Jr. and Shante in the Johnson Superior Court. The trial court granted Lewis, Sr.'s petition, and he was issued Letters of Administration on August 1.

[7] The very next day, on July 26, Son J.T.'s mother Toliver filed her own petition for appointment as special administrator for the Estate in the Marion County Superior Court. The court appointed Toliver as the special administrator on July 27 and issued letters of administration. The Marion Superior Court subsequently learned that Lewis, Sr. had filed his petition in Johnson County prior to Toliver's petition, and thereupon, the Marion Superior Court stayed its proceeding pending a determination of venue in the Johnson Superior Court.

[8] On August 28, Toliver filed a petition to intervene in the Johnson County proceedings and a motion to remove Lewis, Sr. as special administrator of the Estate. On August 30, Calloway filed a similar petition to intervene, and on September 6, Calloway filed a motion asking the trial court to reconsider its appointment of Lewis, Sr. as special administrator of the Estate or to remove him. Both Toliver and Calloway argued in their motions that they should be appointed co-special administrators of the Estate because they are the legal guardian and court-appointed guardian of Lewis, Jr.'s two dependent children respectively.

[9] On October 12, 2017, the trial court held a combined hearing in which it heard argument and evidence on all motions pending before it regarding the estates of both Lewis, Jr. and Shante. On December 4, the trial court issued an order in which it, in pertinent part and in regards to the Estate: (1) determined that venue was proper in Johnson County; (2) explained that the beneficiaries of a wrongful death action on behalf of Lewis, Jr. are his two minor children Daughter K.L. and Son J.T.; (3) reconsidered and rescinded its prior appointment of Lewis, Sr. as special administrator and vacated the letters of administration; and (4) appointed Toliver and Calloway as special co-personal representatives of the Estate for the limited purpose of pursuing the wrongful death claim on behalf of Daughter K.L. and Son J.T. Appellant's App. pp. 15-20.

[10] Lewis, Sr. now appeals.

Discussion and Decision

[11] Lewis, Sr. contends that the trial court abused its discretion when it rescinded its appointment of him as special administrator of the Estate. Specifically, Lewis, Sr. maintains that he was appropriately appointed as the special administrator of the Estate under Indiana Code section 29-1-10-15, and thus the trial court abused its discretion when it removed him without complying with Indiana Code section 29-1-10-6 (the "Removal Statute"). Calloway argues that because the Removal Statute was not involved in the court's decision, the trial court acted within its discretion when it reconsidered and rescinded its order appointing Lewis, Sr. as special administrator. Therefore, Calloway maintains that the trial court did not err when it named her and Toliver as the special co-personal representatives of the Estate. Under the particular facts and circumstances presented here, we agree with Calloway.

[12] Indiana Code section 29-1-10-15 provides that a trial court may appoint a special administrator if:

(a) from any cause delay is necessarily occasioned in granting letters, or
(b) before the expiration of the time allowed by law for issuing letters, any competent person shall file his affidavit with the clerk that anyone is intermeddling with the estate or that there is no one having authority to take care of the same, or
(c) if any person shall have died testate and objections to the probate of his will shall have been filed as provided by law.
The appointment of a special administrator may be for a specified time to perform duties respecting specific property, or to perform particular acts as shall be stated in the order of appointment.
* * *
Otherwise, and except as the provisions of this article by terms apply to general personal representatives, and except as ordered by the court, the law and procedure relating to personal representatives in this article shall apply to special administrators. The order appointing a special administrator shall not be appealable.

[13] We have previously held that this statute authorizes a trial court to appoint a special administrator for the sole purpose of pursuing a wrongful death action, and that the trial court has "complete discretion" in the appointment of special administrators. Estate of Sandefur , 685 N.E.2d 719, 723 (Ind. Ct. App. 1997).

[14] Here, neither party argues that Lewis, Sr. was not properly appointed as special administrator under section 29-1-10-15. Rather, Lewis, Sr.'s primary argument is that the trial court had no basis to remove him as special administrator under the Removal Statute, which provides in relevant part:

(b) When the personal representative becomes incapacitated (unless the incapacity is caused only by a physical illness, infirmity, or impairment), disqualified, unsuitable or incapable of discharging the representative's duties, has mismanaged the estate, failed to perform any duty imposed by law or by any lawful order of the court, or has ceased to be domiciled in Indiana, the court may remove the representative in accordance with either of the following:
(1) The court on its own motion may, or on petition of any person interested in the estate shall, order the representative to appear and show cause why the representative should not be removed. The order shall set forth in substance the alleged grounds upon which such removal is based, the time and place of the hearing, and may be served upon the personal representative in the same manner as a notice is served under this article.
(2) The court may without motion, petition or application, for any such cause, in cases of emergency, remove such personal representative instantly without notice or citation.

I.C. § 29-1-10-6

[15] Because of this statutory language, a panel of this court explained in Sandefur that "once the trial court has made an appointment of a special administrator, it may not remove the administrator without a finding that the special administrator meets one of the statutory criteria for removal." 685 N.E.2d at 722. However, the trial court here did not utilize the Removal Statute, but instead it reconsidered its appointment of Lewis, Sr. as special administrator of the estate. And, as our supreme court explained in In re Estate of Hammar :

A trial court's control and discretion to change its own rulings is firmly established in common law, and we will review a trial court's reconsideration of its prior rulings for abuse of discretion. Pond v. Pond , 700 N.E.2d 1130, 1135 (Ind. 1998) ("A trial court may reconsider an order or ruling if the action remains in fieri , or pending resolution."); State ex rel. Rans v. St. Joseph Superior Court , 246 Ind. 74, 78, 201 N.E.2d 778, 779-80 (1964) ("[A] court may, upon motion to reconsider or rehear, upon its own motion or the suggestion of a party, vacate, set aside, amend or modify a ruling entered in the same term of court, since such a matter is in fieri .").

847 N.E.2d 960, 962 (Ind. 2006). We have similarly noted that trial courts have the inherent power to reconsider its appointment of special administrators. Brenton v. Lutz , 993 N.E.2d 235, 239 (Ind. Ct. App. 2013), trans. denied . And as stated above, we will consider the trial court's decision here to reconsider its appointment of Lewis, Sr. as special administrator for an abuse of discretion. Hammar , 847 N.E.2d at 962.

[16] The trial court explained its rationale for reconsidering its original decision:

Typically, the issue of who will serve as Special Administrator is determined by the family. Indiana does not set forth a statutory procedure to notify other potential applicants of the petition for appointment. Inasmuch as the issue is normally resolved by the family, a dispute over appointment is rare. The procedures utilized by the court allow for the expeditious appointment of a special administrator in the typical situation. Unfortunately, in this case, a family agreement was not made. The Court unwittingly rewarded the victor in the race to the courthouse without considering the claims of the rival claimants. No disclosures were made of rival claimants. The Court did not on it's [sic] own consider the interests of rival claimants.

Appellant's App. p. 13. After considering the claims of all rival claimants during the October hearing, the trial court reconsidered its original decision and relied on our supreme court's decision in Hammar when it rescinded its appointment of Lewis, Sr. as special administrator of the Estate. Appellant's App. p. 20.

[17] Lewis, however, contends that Hammar does not support the trial court's decision. In that case, Hammar was killed in an automobile accident in which his wife Janet was also injured. Four days after the accident, Hammar's ex-wife Margaret sought and obtained permission to serve as special administrator for a wrongful death action on Hammar's behalf. The next day, Janet's attorney filed a petition to have Janet appointed as general administrator of the estate; but he discovered that Margaret had already been appointed as special administrator. Janet's attorney filed an objection with the court, and the court stayed all proceedings until a hearing could be held addressing Janet's claims.

[18] At the hearing, the trial court removed Margaret as special administrator and appointed Janet in her place. The court stated, in part, that "it erred when it appointed Margaret [ ] as Personal Representative of the Estate in that Janet [ ] as widow of the decedent is closer in proximity to the decedent and the estate." Hammar , 847 N.E.2d at 962 (quoting Appellant's App. p. 5). On appeal, Margaret argued that the trial court erred when it removed her as special administrator without a supporting reason under the Removal Statute. Id.

[19] Our supreme court rejected Margaret's argument and explained, "we view the trial court's action as a mere reconsideration of its prior ruling, not a removal of a special administrator under the removal statute." Id. The Hammar court then found that the trial court did not abuse its discretion when it reconsidered its original order, in part, because "the trial court's original order was obtained ex parte without notice to the decedent's widow, who had just been released from the hospital and was in the process of making funeral arrangements for her husband." Id. at 962-63. In a concurring opinion, then Chief Justice Shepard remarked, "Margaret's lawyer seized control of [ ] Hammar's estate for purposes of filing a contingent fee wrongful death case at a moment when the body had barely turned cold. He contended-and continues to claim-that 'no one else was in a position to act.' " Id. at 963 (Shepard, C.J., concurring).

[20] Lewis, Sr. contends that Hammar is not controlling in the case before us because the circumstances present in Hammar "differ greatly from those present in the instant case." Appellant's Br. at 16. Specifically, Lewis, Sr. alleges that unlike in Hammar , here "the trial court ... removed a person with a close relationship with the decedent, his father, [Lewis, Sr.], in favor of the ex-wife of decedent, Toliver." Id. at 17. We agree that Hammar's facts are different than the ones before us in this case, but Hammar's rationale is an equitable one, and one we believe should be applied here to find the best special administrator(s) for this estate in the face of the fragmented family involved.

[21] A special administrator has a legal relationship with the estate's personal representative that becomes extremely important in circumstances such as those before for us in this case, where the proceeds from settlement or trial of the personal injury claims of the beneficiaries will constitute nearly all of the assets of the estate. In such an estate, a special administrator's interests may actually conflict with the interests of the personal representative of the estate, for example, in the fees charged by the special administrator or the counsel chosen by that special administrator. In a case like the one before us, while consanguinity and degrees of relationship are important, they should not be controlling and should be considered along with the nature of the estate and the best interests of all of its beneficiaries, after proper notice is given to all beneficiaries or their legal representatives.

[22] Incredibly, the special administrator statute requires no notice to beneficiaries prior to appointment of a special administrator, and neither petitioner, Lewis, Sr. in Johnson County, nor Toliver in Marion County gave such notice. And just as incredibly, after an appointment of a special administrator without notice, "[t]he appointment of a special administrator shall not be appealable." I.C. § 29-1-10-15. Any conflict between Sandefur and Hammer is caused by this untenable procedure. Notice prior to appointment of a special administrator is required as a matter of equity in order to properly and fully inform the trial court prior to appointment, and it should also be required as a matter of law.

[23] Here, the only beneficiaries are Daughter K.L. and Son J.T., the latter of whom has very challenging special needs. See I.C. § 34-23-1-1. The "best interests" consideration in this case should turn on an assessment of personal interest in and concern for those beneficiaries, and not on a race to the courthouse or the hurried consolidation of parties by one law firm.

[24] Lewis, Sr., who won the race to the courthouse, has lived in Illinois his entire life. Son J.T. was born in 2011, and the first time Lewis, Sr. ever asked Toliver to see Son J.T. was on August 15, 2017-nearly a month after the accident. Tr. pp. 38, 73. Shante's son M.B., III who lived with Lewis, Jr., Shante, and Daughter K.L., testified that Lewis, Sr. came over to the house on two occasions. Id. at 136. And in his petition for appointment as special administrator of the Estate, in the paragraph where Lewis, Sr. lists Lewis, Jr.'s decedents, Son J.T. is only listed by his first name, with no last name or address. Moreover, since Daughter K.L.'s birth in 2015, Lewis, Sr. has only seen her "[a]bout four or five times." Tr. p. 49. For these reasons, we agree with the trial court's assessment that Lewis, Sr. did not "demonstrate[ ] a particularly close relationship with either grandchild prior to the collision." Appellant's App. p. 20.

[25] Lewis, Sr. additionally contends that "[u]nlike the appellee in Hammar , the appellees in this case, Toliver and Calloway, waited thirty-three (33) and thirty-five (35) days respectively before petitioning to intervene in the underlying case." Appellant's Br. at 17-18. Although this is true, a panel of this court has previously explained "that the determination of who becomes a special administrator does not rest solely upon who wins the proverbial race to the courthouse." In re Estate of Hutman , 705 N.E.2d 1060, 1065 (Ind. Ct. App. 1999). Our facts here demonstrate an important reason not to blindly rely on such a race.

[26] Moreover, we note that Lewis, Sr. filed his petition to be appointed special administrator just three days after the accident and nearly a week before Lewis, Jr.'s funeral. Cf. Sandefur , 685 N.E.2d at 720 (individual appointed as special administrator filed her petition for appointment thirteen days after decedent's death). The trial court addressed the issue of timing in its order quite well when it stated, "While longer than the one day in [ ] Hammar , no evidence is presented that the competing claimants did not act with reasonable promptness in asserting their claims." Appellant's App. p. 14.

[27] It is precisely because of Lewis, Sr.'s race to the courthouse "that the circumstances of appointment did not permit all interested parties to have an opportunity to seek appointment." Id. at 20. Neither Toliver (Son J.T.'s mother and legal guardian)

nor Calloway (Daughter K.L.'s caretaker and temporary guardian) had any notice that Lewis, Sr. was filing his petition. See Pope by Smith v. Pope , 701 N.E.2d 587, 593 (Ind. Ct. App. 1998) (holding that although petitioner seeking to be appointed special administrator "was not required to name the persons most closely related by blood or marriage to the sole statutory beneficiary," it was incumbent on the petitioner or her attorney to inform the court that the only minor beneficiary was in the custody of his natural mother).

[28] It is also quite concerning that during the time period covering the proceedings underlying this appeal, Lewis, Sr. filed suit against both Toliver and Calloway. See Tr. pp. 40, 51, 52, 73, 186; cf. Hutman , 705 N.E.2d at 1065 (finding that decedent's mother would be a neutral special administrator due to potential competing interests among other petitioners). Although Lewis Sr.'s lawsuits are for grandparent visitation rights, it is notable that prior to the accident, Lewis, Sr. had seen Son J.T., age six, and Daughter K.L., aged two and one-half, fewer than ten times combined. Thus, although we acknowledge the difference in timing between Hammar and the case before us, it is not dispositive. Rather, what is persuasive is the underlying concerns of the Hammar court that are also present here. See Hammar , 847 N.E.2d at 963 (Shepard, C.J., concurring).

[29] We have previously explained that when appointing a special administrator, "the trial court must have confidence ... that the person does not have an interest in pending litigation, or bias or prejudice, such that the appointment would be adverse to the interest of those to be served by the appointment." Hutman , 705 N.E.2d at 1065. Here the trial court noted, "[t]he circumstance that so many people with ties to Orlando Lewis, Jr. ... ended up at the same law firm within a short period after death is disquieting. While diligence and promptness are virtues[, r]epresentation of the interests of the minor beneficiaries should not be accorded to the victor in the race to the courthouse alone to the disadvantage of other parties when other parties have not had an opportunity to assert their claim." Appellant's App. p. 20. We agree, and it is for these reasons that trial courts are afforded the ability to reconsider prior rulings as long as the action remains in fieri .

[30] Therefore, based on the facts and circumstances before us, we view the trial court's action rescinding Lewis, Sr. as special administrator of the Estate as a mere reconsideration of its prior ruling, and not a removal of a special administrator requiring application of the Removal Statute. And because of the trial court's inherent power to reconsider its appointment of a special administrator, we conclude that it did not abuse its discretion when it revised its appointment of Lewis, Sr. to Toliver and Calloway as special co-personal representatives.

Conclusion

[31] The trial court did not abuse its discretion by reconsidering its appointment of Lewis, Sr. when important new facts came to its attention, and we affirm its order replacing Lewis, Sr. with Toliver and Calloway as special co-personal representatives for the wrongful death action on behalf of the Estate.

Riley, J., and May, J., concur.

      Son J.T. is also medically disabled. His mother explained that he "has ADHD combined type, ODD[ ] [which is] oppositional defiant disorder, expressive receptive language disorder, speech delays, developmental delays, and mild intellectual disabilities." Tr. pp. 90-91.

      Although Lewis, Sr. was initially appointed as the special administrator of Shante's estate for pursuing damages for her wrongful death, Shante's father Dante Pettus subsequently filed a motion for substitution of special administrator in Shante's estate. Lewis, Sr. then voluntarily withdrew as the special administrator of Shante's estate. Shante's estate is not at issue in this appeal.

      While this appeal was pending, Toliver filed a motion for involuntary dismissal of Lewis, Sr.'s appeal. In it Toliver argued that: (1) Lewis, Sr. was not appealing a final judgment; (2) Lewis, Sr. was statutorily barred from bringing the appeal pursuant to Indiana Code section 29-1-10-15 ; (3) Lewis, Sr. had no basis to appeal because the trial court reconsidered its appointment and did not remove him under Indiana Code section 29-1-10-6 ; and (4) Lewis, Sr. improperly brought his appeal as "special administrator" of Lewis, Jr.'s estate even though he was no longer the special administrator. We denied Toliver's motion for the following reasons. First, Lewis, Sr. is appealing the trial court's rescission of his appointment as the special administrator of the Estate, and thus, the court's order disposed of the sole claim Lewis, Sr. has with Toliver and Calloway in their current capacity as special co-personal representatives of the estate. Both our supreme court and our court have previously examined similar appeals to the one Lewis, Sr. brings here. See In re Estate of Hammar , 847 N.E.2d 960, 962 (Ind. 2006) ; Estate of Sandefur , 685 N.E.2d 719, 721-22 (Ind. Ct. App. 1997). As to Toliver's second and third contentions, although Indiana Code section 29-1-10-15 explains that "[t]he order appointing a special administrator shall not be appealable[,]" Lewis, Sr. is not appealing the trial court's appointment of Toliver and Calloway as special co-administrators. Rather, Lewis, Sr. is appealing the trial court's rescission of his appointment as special administrator of the Estate. And we stated in Sandefur , "although [I.C. § 29-1-10-15 ] does not allow the appeal of an order appointing a special administrator, the order removing a special administrator may be appealed by the aggrieved party."685 N.E.2d at 722. Here, Lewis, Sr. is an aggrieved party, and he therefore has a right to appeal. Finally, we addressed Toliver's fourth argument above. See note 1, supra .

      Although Calloway and Toliver are special co-personal representatives of the Estate and they are both appellees on appeal, we note that Toliver did not file a brief.

      Notably, because Lewis, Sr. lives in Illinois, he would not have qualified to serve as a general administrator over the Estate in his individual capacity. See Ind. Code § 29-1-10-1(c). And under the Removal Statute, an individual can be removed as a personal representative of an estate if he "has ceased to be domiciled in Indiana[.]" I.C. § 29-1-10-6(b). However, there is no such residence restriction under the statute governing the appointment of special administrators, see I.C. § 29-10-10-15, and thus, although Lewis, Sr. lives out of state and cannot serve as a general administrator of an Indiana estate in his individual capacity, the legislature has deemed it appropriate that he has the ability to serve as a special administrator of an Indiana estate-a determination that is within its province. As this case shows, it may be well for the legislature to consider the concept of the best person to represent the interests of all beneficiaries in a special administration after notice to those beneficiaries or their representatives.

      We respectfully request that the General Assembly reconsider the language of Indiana Code section 29-1-10-15 and create a special administrator appointment process that requires notice to beneficiaries or their representatives prior to appointment and that provides standards for the appointment of a special administrator by the trial court.

      M.B., III is Shante's child from a former relationship and was eight years old at the time of the accident. Although his interests under Shante's estate are not at issue in this appeal, we find portions of his testimony relevant to our decision.

      It is unclear from the record whether Son J.T. was present at the time of these visits.

      We acknowledge that Lewis, Sr. lists more purported differences in circumstances between Hammar and the case before us, see Appellant's Br. at 18-19; however, those differences are unavailing, and we decline to address them.


text:
    Michael A. MILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 28A01-1712-CR-2918
    Court of Appeals of Indiana.
    Filed July 13, 2018
    Attorney for Appellant: Kimberly A. Jackson, Indianapolis, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Laura R. Anderson, Deputy Attorney General, Indianapolis, Indiana
   Mathias, Judge.

[1] Following a bench trial in Greene Circuit Court, Michael Miller was convicted of attempted murder. On direct appeal, Miller argued that he was denied his right to a speedy trial, that the trial court erred by rejecting his insanity defense, and that the trial court applied the incorrect mens rea of "knowingly" in convicting him of attempted murder. We rejected Miller's first two arguments, but agreed with the last. Miller v. State , 72 N.E.3d 502, 518 (Ind. Ct. App. 2017) (" Miller I "), trans. granted . We therefore reversed Miller's conviction for attempted murder and remanded for retrial. Id. Our supreme court granted transfer and disagreed with our determination that a retrial was necessary but summarily affirmed the remainder of our opinion. Miller v. State , 77 N.E.3d 1196, 1197 (Ind. 2017) (per curiam) (" Miller II "). Instead, the court remanded with instructions that the trial court apply the appropriate mens rea to the existing evidence. Id. On remand, the trial court explicitly applied the correct mens rea and again found Miller guilty of attempted murder. In this second appeal, Miller presents two issues for our review, which we reorder and restate as: (1) whether there was insufficient evidence to support Miller's conviction for attempted murder, and (2) whether the trial court abused its discretion when it denied Miller's motion for a change of judge on remand.

[2] We affirm.

Facts and Procedural History

A. Facts Underlying Miller's Conviction

[3] The facts underlying Miller's conviction were set forth in our opinion in his first direct appeal as follows:

At about 11:30 p.m. on the night of August 10, 2014, Jeremy Kohn was sitting on the porch of his residence in Bloomfield with his girlfriend, Kylee Bateman. Kohn and Bateman observed Miller twice approach a neighboring house, knock on the door or ring the door bell, and then walk away. Kohn did not know Miller personally but believed he may have gone to school with him. Kohn and Bateman waved at Miller. Bateman was telling Kohn a story that may have made them both laugh; Miller apparently believed Kohn and Bateman were laughing at him. He then approached Kohn "nonchalantly," drew a pocketknife with a three-to-four-inch blade, and cut Kohn's throat without saying a word. Tr. p. 53. Miller, who had a "blank look" on his face, then turned around and left, still without saying anything. Id. The cut to Kohn's neck was not deep enough to damage his jugular vein, carotid artery, or trachea, although a slightly deeper cut could have done so and would have posed a risk of death. The wound required over forty stitches to close.
On August 13, 2014, Marshall Randy Raney of the Worthington Police Department responded to a report of a suspicious person in a local cemetery. Worthington is about twelve miles from Bloomfield. The suspicious person was Miller. Marshall Raney believed Miller seemed "backward" and quiet. Id. at 74. Miller told Marshall Raney that he was trying to hitchhike his way to Indianapolis. At the time of this encounter with Marshall Raney, Miller had not yet been identified as a suspect in the attack on Kohn.
Later on August 13, Miller was arrested in Worthington .... As Miller was being placed in handcuffs by Deputy Harvey Holt of the Greene County Sheriff's Department, he said that he knew why he was being arrested and asked what charges he would face. Miller then submitted to an interview conducted by Officer Marvin Holt of the Bloomfield Police Department after waiving his Miranda rights.
During the interview, Miller said he had been attempting to return a textbook and some flashcards to a former teacher; Miller was twenty-four years old at the time of the crime. He volunteered several times that he was not "paranoid" or "psychotic" or on drugs, but he also said that people he encountered often attempted to frighten him or laughed at him. Ex. 7. He then admitted that he cut Kohn's throat with a knife after Kohn and Bateman smiled at him, and Kohn looked at Bateman and shook his head. Officer Holt related that family members had expressed concern about Miller's mental health and asked Miller whether he believed he needed help or medication; Miller denied that he did so and said he believed he was fine. Miller said that, because he did not hear any sirens after cutting Kohn's throat, he assumed neither Kohn nor Bateman called police or the police did not care, and he decided to go to Indianapolis, apparently by a combination of walking and hitchhiking. Miller also engaged Officer Holt in conversation about why it had taken several days for police to contact him and said he was aware that what he had done was against the law. Officer Holt asked Miller whether he wanted to kill Kohn, and Miller replied that he did not care. He said that he accepted responsibility for what he had done and that he assumed he would go to jail and asked Officer Holt if he could bring his Bible to jail. At one point, after Officer Holt asked Miller whether he might hurt someone again in the future, Miller explained, "Some people can view human life the same way but have different outcomes because of emotion. I don't have the emotion." Id. at 15:50. Miller had a calm demeanor during the interview, spoke throughout in an even and emotionless tone of voice, and ate a candy bar and drank a soda while he talked to Officer Holt.

Miller I , 72 N.E.3d at 506-07.

B. Miller's Prosecution and Trial

[4] The State subsequently charged Miller with Level 1 felony attempted murder and Level 3 felony aggravated battery. The charging information for attempted murder alleged that Miller "did knowingly or intentionally attempt to commit the crime of Murder, to-wit: to knowingly kill Jeremy Kohn, and Michael A. Miller did engage in conduct which constituted a substantial step toward the commission of the crime of murder, to-wit: cut Jeremy Kohn's throat with a knife...." Original Appeal App. p. 29.

[5] As explained in our opinion in Miller's first appeal, "Miller has a lengthy history of mental illness." Miller I , 72 N.E.3d at 507. Thus, on August 15, 2014, Miller's trial counsel filed a notice of defense of mental disease or defect. Miller was found incompetent to stand trial on March 16, 2015, and was treated at Logansport State Hospital. On July 21, 2015, the hospital certified to the trial court that Miller was competent to stand trial, and he was transported back to the Greene County Jail to await trial.

[6] At Miller's January 20, 2016 bench trial, Miller presented evidence from a psychologist who opined that at the time of the crime, Miller suffered from a mental disease or defect that affected his ability to appreciate the wrongfulness of his conduct. This expert testified that, although Miller acknowledged he had done something wrong, he lacked understanding of why it was wrong. A court-appointed psychiatrist agreed that Miller suffered from schizophrenia but believed that Miller "probably did understand the wrongfulness of his actions," yet believed that Miller was "unable to resist the strong urge to nevertheless take those actions at the time that they occurred...." Trial Tr. p. 170 (emphasis added). Yet another psychiatrist also testified that Miller was unable to appreciate the wrongfulness of his conduct.

[7] On January 27, 2016, the trial court entered detailed, written "Findings, Conclusions and Judgment of Conviction" (the "Original Findings"). In the Original Findings, the trial court explained why it was discounting the expert opinions regarding Miller's sanity or lack thereof and rejected his defense of mental disease or defect. It noted that it was relying instead upon its courtroom observations of Miller, as well as his comportment during the police interview and his actions and demeanor near the time of the crime.

[8] As we recounted in our original opinion:

The [Original] [F]indings also repeated the language of the charging information for attempted murder, namely that Miller "did knowingly or intentionally attempt to commit the crime of Murder, to-wit: to knowingly kill Jeremy Kohn...." The trial court found and concluded "that Defendant had the requisite intent to kill as he used a knife, which is a deadly weapon, to deliberately cut the victims [sic] throat in a manner that was likely to cause death or great bodily harm." The trial court also expressly found beyond a reasonable doubt that Miller "did knowingly or intentionally attempt to commit the crime of Murder, to-wit: to knowingly kill Jeremy Kohn...."

Miller I , 72 N.E.3d at 509-10 (record citations omitted) (emphasis added).

[9] The trial court entered judgments of conviction of guilty but mentally ill for both Level 1 felony attempted murder and Level 5 felony battery, but at sentencing merged the battery conviction with the attempted murder conviction. It then sentenced Miller to a term of thirty years, with twenty years executed and ten years suspended to probation.

C. Miller's First Appeal

[10] Miller appealed and argued that the trial court denied his right to a speedy trial under Indiana Criminal Rule 4(B), that the trial court improperly rejected his insanity defense, and that the trial court applied the incorrect mens rea in convicting him of attempted murder. Miller I , 72 N.E.3d at 506. With regard to Miller's first argument, this court held, given the complexity of his insanity defense, the trial court did not abuse its discretion by granting the State's request for a continuance and extending the start of Miller's trial for ninety days, and that Miller's trial therefore began within the limits prescribed by Criminal Rules 4(B) and 4(D). Id. at 513. With regard to his second argument, we held that "despite substantial evidence of Miller's serious mental health problems, there is sufficient evidence to support the trial court's rejection of his insanity defense." Id. at 515. Lastly, we held that the trial court appeared to have applied the incorrect "knowingly" mens rea in finding Miller guilty of attempted murder. Id. at 517. Specifically, we held:

[G]iven the severity of the charge against Miller and the incorrect language of the charging information, we find it impossible to ignore the trial court's findings that clearly misstate the proper standard for convicting a defendant of attempted murder. In a jury trial, there is no way to divine a jury's thought process except by reference to the jury instructions; here, without jury instructions, we can divine that process by the trial court's findings.
Both the charging information and the trial court's findings refer to the long-discredited notion that a "knowing" mens rea was sufficient to convict Miller of attempted murder. It was not. Moreover, Miller's intent was a central issue in this case. Despite our affirmance of the rejection of Miller's insanity defense, we offer no opinion at this time as to whether there is sufficient evidence that Miller acted with the specific intent to kill Kohn. It suffices to say that, even if the evidence could have supported that finding, we believe it also could support the conclusion he did not act with such intent.

Id. at 517.

[11] We therefore reversed Miller's conviction for attempted murder. Id. at 518. We then confronted the question of the appropriate remedy: whether to reverse and remand for a new trial, or to reverse and remand with instructions for the trial court to apply the correct mens rea to the evidence presented in the first trial. Id. We opted for the former option and reversed and remanded for retrial. Id.

[12] Our supreme court granted transfer, and on July 12, 2017, issued an opinion that summarily affirmed all of our opinion except our choice of remedy. Miller II , 77 N.E.3d at 1197. Instead, our supreme court held that "the correct remedy in these circumstances is a remand for reconsideration by the trial court." Id. Accordingly, our supreme court reversed Miller's conviction for attempted murder and "remanded this case to Judge Allen with instructions to apply the appropriate legal standard to the existing evidence." Id.

[13] On August 11, 2017, Miller filed a petition for rehearing. On August 17, 2017, prior to our supreme court's decision on Miller's petition for rehearing, and thus prior to the court's initial opinion having been certified, the trial court entered revised written findings and conclusions finding Miller guilty under the proper mens rea required for attempted murder, i.e., acting with the specific intent to kill. Appellant's App. Vol. 3, pp. 2-7.

[14] On August 31, 2017, Miller filed in our supreme court a motion for writ in aid of appellate jurisdiction. In this motion, Miller argued that the trial court lacked jurisdiction to issue its findings and conclusions prior to the decision of our supreme court on Miller's motion for rehearing, i.e., the supreme court's opinion was not yet certified, and the trial court could not take any action in reliance thereon until it was certified. See Ind. Appellate Rule 65(E). In addition, Miller argued that the trial court was biased against him and requested that our supreme court appoint a new judge to hear his case and order a retrial.

[15] On September 28, 2017, our supreme court entered an order granting Miller's motion for writ in aid of appellate jurisdiction, noting that its opinion had not yet been certified and that the trial court therefore did not have jurisdiction to enter its new findings and conclusions; our supreme court's order did not mention Miller's requests for the appointment of a new judge or a retrial. Thus, our supreme court did not grant Miller's requests for a new trial judge and a new trial. That same day, our supreme court also denied Miller's petition for rehearing. Accordingly, the court's opinion was listed as certified on October 2, 2017.

D. On Remand to the Trial Court

[16] On October 3, 2017, Miller filed in the trial court a motion for change of judge. The trial court held a hearing on the motion on November 21, 2017, and denied it on December 4, 2017. Also, on December 4, the trial court issued its revised Findings, Conclusions, and Judgment of Conviction ("Revised Findings"), again finding Miller guilty of attempted murder, but this time referencing the proper mens rea . Miller now appeals.

I. Sufficiency of the Evidence

[17] Miller claims that the evidence was insufficient to support the trial court's finding that he acted with the specific intent to kill required to support his conviction for attempted murder. Our standard of review on challenges to the sufficiency of the evidence is well settled:

Upon a challenge to the sufficiency of evidence to support a conviction, a reviewing court does not reweigh the evidence or judge the credibility of the witnesses, and respects the [fact finder]'s exclusive province to weigh conflicting evidence. We have often emphasized that appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. Expressed another way, we have stated that appellate courts must affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

McHenry v. State , 820 N.E.2d 124, 126 (Ind. 2005) (citations and internal quotations omitted).

[18] Murder is generally defined by statute as knowingly or intentionally killing another human being. Ind. Code § 35-42-1-1(a). And the general attempt statute provides that "[a] person attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime...." Ind. Code § 35-41-5-1(a). Despite this statutory language, it is well settled that a conviction for attempted murder requires proof of more than a "knowing" mens rea ; it instead requires proof of specific intent to kill. Spradlin v. State , 569 N.E.2d 948, 950 (Ind. 1991) ; see also Kadrovach v. State , 61 N.E.3d 1241, 1246 (Ind. Ct. App. 2016), trans. denied . Accordingly, to convict Miller of attempted murder, the State was required to prove beyond a reasonable doubt that Miller, acting with the specific intent to kill, engaged in conduct that constituted a substantial step toward the commission of the crime of murder.

[19] In attacking the sufficiency of the evidence, Miller first contends that the trial court, yet again, used the improper standard in finding him guilty. That is, Miller claims that the trial court used the improper mens rea of "knowingly" in its Original Findings and claims that the trial court's Revised Findings used the same standard as it had in the Original Findings. Thus, he contends, the trial court necessarily used the same, improper legal standard in finding him guilty on remand. The record does not support Miller's contention.

[20] The trial court's Original Findings referenced both the "knowingly" mens rea and the "intent to kill." In its Revised Findings, the trial court clearly, explicitly, and unambiguously found that Miller acted with the requisite specific intent to kill. See Appellant's App. Vol. 2, p. 11 ("Without hesitation or reservation, the Court concludes that the evidence presented and the findings set forth herein support the conclusion that the State proved beyond a reasonable doubt that the Defendant had specific intent to kill."). We therefore reject Miller's claim that the trial court applied the improper legal standard on remand.

[21] Miller also claims that the evidence does not support a reasonable inference that he acted with the specific intent to kill when he cut the victim's throat. Miller argues that the trial court's Revised Findings imply that the trial court thought that the pocket knife must always be considered a deadly weapon. Again, we disagree.

[22] A "deadly weapon" is defined by the criminal code to include:

A destructive device, weapon, device ... or other material that in the manner it:
(A) is used;
(B) could ordinarily be used; or
(C) is intended to be used;
is readily capable of causing serious bodily injury.

Ind. Code § 35-31.5-2-86(a)(2).

[23] It is well-settled that a knife may be considered to be a deadly weapon. Indeed, pocket knives, which Miller used, have been held to be deadly weapons. See Hollowell v. State , 707 N.E.2d 1014, 1020-21 (Ind. Ct. App. 1999). The case cited by Miller in support of his argument that a pocket knife is not necessarily a deadly weapon is readily distinguishable. In Sluss v. State , 436 N.E.2d 907, 911 (Ind. Ct. App. 1982), a pocket knife was used to "tinker" with a door lock, not cut someone's throat. Here, Miller used the pocket knife not to tinker with a lock, but to slit a man's throat. The knife also had a three- to four-inch blade, and Miller used it to cut the victim's throat, requiring over forty-stitches to close. Although the cut was, fortunately, not deep enough to cut the victim's jugular vein or carotid artery, a slightly deeper cut could have done so. Thus, the trial court did not err by noting that the pocket knife used by Miller was a deadly weapon.

[24] Nor did the trial court err by inferring a specific intent to kill from Miller's use of the deadly weapon. Typically, a defendant's mens rea must be inferred from the circumstances. West v. State , 805 N.E.2d 909, 915 (Ind. Ct. App. 2004), trans. denied . With regard to the crime of attempted murder, it has long been held that the specific intent to kill may be inferred from the use of a deadly weapon in a manner likely to cause death or great bodily harm. Kiefer v. State , 761 N.E.2d 802, 805 (Ind. 2002) ; Randolph v. State , 516 N.E.2d 24, 25 (Ind. 1987).

[25] Here, Miller slit the victim's throat with a three- to four-inch knife, requiring the victim to have over forty stitches to close the wound. The knife narrowly missed cutting the victim's jugular vein and carotid artery, and had it been a slightly deeper cut, would have posed a risk of death. Under these facts and circumstances, the trial court, acting as the trier of fact, could reasonably conclude that Miller acted with the specific intent to kill when he slit the victim's throat. Under our extremely deferential standard of review on claims of insufficient evidence, we can only conclude that the State presented evidence sufficient to support Miller's conviction for attempted murder.

II. Motion for Change of Judge

[26] Miller also argues that the trial court erred when it denied his motion for a change of judge. Pursuant to Indiana Criminal Rule 12(B) :

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.

Ind. Crim. Rule 12(B) (emphasis added). The timeliness of such motions is governed by Criminal Rule 12(D), which provides:

(D) Time Period for Filing Request for Change of Judge or Change of Venue. In any criminal action, no change of judge or change of venue from the county shall be granted except within the time herein provided.
(1) Thirty Day Rule . An application for a change of judge or change of venue from the county shall be filed within thirty (30) days of the initial hearing. Provided, that where a cause is remanded for a new trial by the court on appeal, such application must be filed not later than thirty (30) days after the defendant first appears in person before the trial court following remand.
(2) Subsequently Discovered Grounds . If the applicant first obtains knowledge of the cause for change of venue from the judge or from the county after the time above limited, the applicant may file the application, which shall be verified by the party specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten (10) days, and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion.

[27] Criminal Rule 12(B) provides that the request for a change of judge "shall be granted if the historical facts recited in the affidavit support a rational inference of bias or prejudice." Thus, a change of judge under this rule "is neither 'automatic' nor 'discretionary.' " Sturgeon v. State , 719 N.E.2d 1173, 1181 (Ind. 1999) (quoting Blanche v. State , 690 N.E.2d 709, 714 (Ind. 1998) ). The appropriate standard of review of a trial judge's decision to grant or deny such a motion is whether the judge's decision was clearly erroneous. Id. at 1182.

[28] This clearly erroneous standard, however, applies only to motions made within the "Thirty Day Rule" set forth in Criminal Rule 12(D)(1), i.e., motions filed no later than thirty days after the initial hearing or, if the case is remanded for a new trial by the court on appeal, no later than thirty days after the defendant first appears in person before the trial court following remand. If the motion for change of judge is made outside this thirty-day rule, then the motion is governed by Criminal Rule 12(D)(2), which provides that such motions "may be reviewed only for abuse of discretion."

[29] Here, Miller admits that his motion for a change of judge did not fall within the scope of Criminal Rule 12(D)(1), because it was not filed within thirty days of his initial hearing, nor was his case remanded for a new trial. Instead, it was remanded only for the trial court "to apply the appropriate legal standard to the existing evidence." Miller II , 77 N.E.3d at 1197. Thus, Miller's motion falls within the scope of Criminal Rule 12(D)(2), and as such is, by the explicit language of this rule, reviewable only for an abuse of discretion.

[30] In determining whether the trial court abused its discretion in denying Miller's motion for a change of judge, we also keep in mind that we presume that a judge is not biased or prejudiced against a party. Garland v. State , 788 N.E.2d 425, 433 (Ind. 2003). Nor may prejudice be derived from judicial rulings. Id. A trial judge's exposure to evidence through judicial sources is, alone, insufficient to establish bias. Id. (citing Sturgeon , 719 N.E.2d at 1181 ). Nor does the fact that a defendant has appeared before a certain judge in prior cases establish the existence of bias or prejudice. Id. (citing Lasley v. State , 510 N.E.2d 1340, 1341 (Ind. 1987) ). 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. Id. A defendant cannot merely assert prejudice on the grounds that the judge has ruled against him in a prior proceeding. Id.

[31] In the present case, Miller relies wholly on the Revised Findings the trial court entered on remand to support his claim for a change of judge. Specifically, he argues that the substance of the Revised Findings demonstrates the trial judge's bias and that the trial judge's action of entering findings prematurely establish an appearance of bias or prejudice of the trial judge against him. We disagree.

[32] First, we find no support for a claim of an appearance of bias or prejudice based on the trial court's act of prematurely entering its findings on remand. Our supreme court issued its opinion on July 12, 2017. The trial court entered its findings on August 17, 2017, over one month after our supreme court's opinion. Had Miller not filed a petition for rehearing, this would have been sufficient time for our supreme court's opinion to have been certified. But here, Miller had already filed a petition for rehearing on August 11, 2017, thereby postponing the certification until our supreme court could rule on the petition. The trial court may have been unaware of Miller's petition for rehearing and therefore entered its findings prematurely, but this action does not establish any appearance of bias or prejudice on the part of the trial judge. And the fact that the premature findings were not in favor of Miller does not support any inference of bias. Although Miller claims that the premature findings "harmed" him and benefitted the State, the trial court's premature findings were vacated upon Miller's successful efforts to obtain a writ in aid of appellate jurisdiction. Thus, he was not harmed by the trial court's premature actions.

[33] Miller also claims that the substance of the trial court's Revised Findings supports an appearance of bias or prejudice against him. Again, we disagree. The trial court's Revised Findings do exactly what the supreme court instructed the trial court to do on remand: reconsider the evidence under the appropriate legal standard, i.e., whether the evidence was sufficient to show that Miller acted with the specific intent to kill.

[34] Miller also complains that the trial court "staunchly contended" that it had applied the proper legal standard in its original findings. Appellant's Br. at 28-29. The trial court's Revised Findings do attempt to explain and justify the trial court's Original Findings. Specifically, the trial court wrote:

This Court has given lengthy and thoughtful consideration to the appropriate standard for attempted murder, not only at the time that the [O]riginal Findings, Conclusions and Judgment of Conviction was entered but also upon remand. The charging information for Count 1 sets forth the incorrect mens rea , and the Court recited the charging information verbatim in two places in the [O]riginal Findings, Conclusions and Judgment of Conviction. However, the Trial Court's purpose for reciting the charging information in original paragraph 2 was to indicate the charge of Attempted Murder had been filed in Count 1, and the purpose in original paragraph 8a was to make a finding that Defendant was guilty of Attempted Murder, a Level 1 felony, beyond a reasonable doubt. The Court did not consider the "knowing" standard and this conclusion is supported by the record of the case and the Court's [O]riginal Findings, Conclusions and Judgment of Conviction.
The Court specifically set forth in the [O]riginal Findings, Conclusions and Judgment of Conviction the following: "The Court finds and concludes that Defendant had the requisite intent to kill as he used a knife, which is a deadly weapon, to deliberately cut the victims throat in a manner that was likely to cause death or great bodily harm." This is a specific finding and conclusion consistent with the Indiana Supreme Court's Kiefer[ ] opinion ... which establishes that a trier of fact may infer intent to kill from the use of a deadly weapon in a manner likely to cause death or great bodily harm. This identifies the standard considered by the Court and the Court's conclusion that Defendant had specific intent to kill the victim in the instant case. Further, the framework the Court used to consider the evidence followed the standard clearly identified in the State's closing argument ....
Contrary to the concerns stated in the opinion of the Court of Appeals and by Justice Slaughter, this Court would not hesitate to change the original order if the evidence did not support the same conclusion under the appropriately stated standard. This Court specifically states that it did consider the specific intent to kill standard when deciding the case originally, and also re-evaluated and reconsidered all of the evidence under the specific intent to kill standard on remand. Without hesitation or reservation, the Court concludes that the evidence presented and the findings set forth herein support the conclusion that the State proved beyond a reasonable doubt that the Defendant had specific intent to kill.

Appellant's App. pp. 10-11 (italic emphasis in original, bold emphasis added).

[35] Although the trial court did defend its Original Findings in its Revised Findings, we cannot say that this supports an appearance of bias or prejudice against Miller. The trial court still followed the instructions of our supreme court and reconsidered the evidence using the proper mens rea . That the trial court again ruled against Miller is not indicative of bias or prejudice. See Garland, 788 N.E.2d at 433 (noting that prejudice may not be derived from unfavorable judicial rulings).

[36] Miller also complains that the trial court excluded him from participation in the process of reconsidering the evidence on remand. Miller claims that the trial court should have given him an opportunity to present further "argument, evidence, briefs, or other input[.]" Appellant's Br. at 27. But this is not what our supreme court instructed the trial court to do on remand. Instead, the court instructed the trial court to simply "apply the appropriate legal standard to the existing evidence." Miller II , 77 N.E.3d at 1197. This is what the trial court did.

[37] We also disagree with Miller's contention that the trial court's Revised Findings demonstrate that the trial judge was "unable to view the evidence dispassionately under a different legal standard than that applied in its original findings." Id. at 30. To the contrary, the trial court's Revised Findings clearly and explicitly reference the correct legal standard, i.e., that Miller acted with the specific intent to kill. That the trial court also contended that it had found that Miller acted with the specific intent to kill in its Original Findings does not mean that the trial court failed to apply the proper legal standard in its Revised Findings.

[38] Miller also argues that the trial judge was required to disqualify or recuse himself by the Indiana Code of Judicial Conduct, specifically referring to Rule 2.11(A). This rule 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 limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party's lawyer, or personal knowledge of facts that are in dispute in the proceeding....

Ind. Code Judicial Conduct Rule 2.11. Miller also cites to the first two comments to this rule, which provide:

[1] Under this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply. In many jurisdictions, the term "recusal" is used interchangeably with the term "disqualification."
[2] A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.

Id. , comments [1], [2].

[39] Miller contends that all of his above-referenced arguments show that an objective person with knowledge of the complete circumstances of his case would have a reasonable basis for doubting the trial judge's impartiality. Yet again, we disagree. The trial court was doing exactly what it was told to do by the Supreme Court, and simply entering its findings prematurely did not bear on the question of the trial judge's presumed impartiality. Furthermore, nothing in the court's Revised Findings establishes that the trial judge's impartiality might reasonably be questioned. Thus, the trial judge was not required to recuse or disqualify himself under the Indiana Code of Judicial Conduct.

[40] In short, the trial court did not abuse its discretion or otherwise err when it denied Miller's motion for a change of judge. Nothing in the trial court's Revised Findings or the fact that the trial court entered findings prematurely supports Miller's claim that there is an appearance that the trial judge was biased or prejudiced against him.

Conclusion

[41] The evidence was sufficient to support an inference that Miller acted with the specific intent to kill required to convict him of attempted murder, and the trial court did not abuse its discretion by denying Miller's motion for a change of judge on remand.

[42] Affirmed.

Riley, J., and May, J., concur.

      The State later amended the information to reduce the battery charge to a Level 5 felony.

      This is precisely the conundrum mentally ill criminal defendants face in Indiana. Severe mental illness at the time of the charged offense can be ignored and the defendant referred to mental health confinement where psychotropic medications are forcibly administered in order to restore the defendant's mental health for trial. The proper protocol should be to use the assessment of mental health professionals immediately after one or more crimes are charged to consider whether the defendant could have formed the legally required mens rea to commit the crime charged. If not, the defendant should more properly be committed to Indiana's mental health system for treatment, rather than charged with crime(s), where such a defendant might well spend the rest of her or his life.

      Miller II , No. 28S04-1707-CR-00468, Docket Entry Sept. 28, 2017, see https://mycase.in.gov.

      In attacking the sufficiency of the evidence, Miller claims that the trial court should have permitted him to reargue his case and claims that the failure of the trial court to do so violated his due process rights and the Sixth Amendment. However, our supreme court ordered the trial court on remand to "apply the appropriate legal standard to the existing evidence," and made no reference to permitting Miller or the State to reargue the case. Miller II , 77 N.E.3d at 1197. The trial court followed this instruction on remand. We further note that Miller, in his motion for a writ in aid of appellate jurisdiction, requested that our supreme court appoint a new trial judge and order a retrial, presenting many of the same concerns that he now presents on appeal. But our supreme court did not grant Miller's request for a new trial judge or a retrial. If Miller has an issue with the remedy ordered by our supreme court, he must take up the issue with that court, as we are in no position to second-guess the instructions of our supreme court.

      We find Miller's citation to State v. Marion Superior Court, 54 N.E.3d 995 (Ind. 2016), to be unavailing. At issue in that case was Indiana Trial Rule 76(C)(3), which provides for a right to a change of judge in civil cases. See Marion Superior Court , 54 N.E.3d at 995. Thus, as noted by the State, the court's holding in Marion Superior Court was not premised upon the appearance of bias or prejudice.

      Kiefer v. State , 761 N.E.2d 802, 805 (Ind. 2002).

      Contrary to Miller's claim that the trial was argued under the wrong mens rea , the prosecuting attorney repeatedly argued at trial that there was sufficient evidence of Miller's specific intent to kill. See Trial Tr. pp. 203-04. And although Miller's trial counsel stated one time in closing argument, "This wasn't something [Miller] did knowingly or intentionally," he also repeatedly argued that Miller did not have "the intent to murder somebody," and that Miller did not "formulate[ ] any kind of intent to kill anybody." Trial Tr. p. 215. Thus, both parties referenced the correct mens rea in their arguments to the trial court.

      Again, we note that, to the extent that Miller claims this deprived him of due process or violated his rights under the Sixth Amendment, his argument is with our supreme court's instructions on remand, which we are not at liberty to second guess.