A TTORNEY FOR A PPELLANT A TTORNEYS FOR A PPELLEE Kimberly A. Jackson Steve Carter Indianapolis, Indiana Attorney General of Indiana

Maureen Ann Bartolo Deputy Attorney General Indianapolis, Indiana 

# In the 

# Indiana Supreme Court

No. 49S05-0705-CR-210

E DDIE C ANNON , Appellant (Defendant below),

v.

S TATE OF I NDIANA , Appellee (Plaintiff below)

.

Appeal from the Marion Superior Court, Criminal Division 3, No. 49G03-0405-FC-83515 Master Commissioner Jeffrey Marchal, Judge Pro Tempore

On Petition to Transfer from the Indi ana Court of Appeals, No. 49A05-0411-CR-622

May 22, 2007

Shepard, Chief Justice.

Eddie Cannon was convicted of operating a vehicl e after his license was forfeited for life and was sentenced to five year s in prison. The Court of Appeals affirmed the conviction and

sentence. Cannon v. State , 839 N.E.2d 185 (Ind. Ct. App. 2005). We grant transfer solely to

address a claim about ex parte communication.Background and Case History

In 2003, in a case not on appeal here, Cannon was convicted in the Marion Superior Court, Criminal Division 6, for operating a vehicl e after his license was forfeited for life and operating a vehicle while intoxicated. Cannon pled guilty, and, on July 25, 2003, Judge Pro Tempore Jane Barker sentenced him to four years on home detention through “HOCCS,” a community corrections enterprise to which Mari on County courts sometimes refer offenders. On that date, Judge Barker wrote a note in the case file, which read: “‘If he messes up off to DOC. Can’t use his wife’s hardship again.’” (Tr. at 48-49.)

In May 2004, Cannon was arrested again and ch arged in the Marion Superior Court, Criminal Division 3, the case ultimately leading to this appeal. The State again charged him with operating a motor vehicle after his license was fo rfeited for life, with operating a motor vehicle while intoxicated, and with public intoxicati on, any of which were in violation of his probationary sentence from Judge Barker’s Division 6 case. On October 22, 2004, Judge Pro Tempore Jeffrey Marchal presided over Cannon’s benc h trial and found him guilty of operating a

motor vehicle after his license was forfeited for life.

Cannon’s wife testified at the sentencing hear ing before Judge Marchal. She described her physical condition and said, “I need my husband . . . if you could just find a way or something to let my husband come back home b ecause I need him back. . . . You know, some kind of mercy. Some kind of mercy for my husband, please.” ( Id. at 41-42.) Cannon testified, “I admit I was wrong for driving that particular da y. . . . [M]y wife was having an asthma attack . . . [a]nd I just ask if the Court could find a wa y, you know, if I could be re instated at HOCCS . . . if I could continue to . . . take care of my wife.” ( Id. at 42-43.)

Judge Marchal told Cannon he had considered the evidence at trial and at the sentencing hearing, the information in the pre-sentence report, and the arguments of counsel. He recited the aggravating and mitigating factors, finding th e clearest aggravating factor to be Cannon’s criminal history, which included among other th ings a 1992 conviction for operating a vehicle

after a lifetime forfeiture for which Cannon wa s sentenced to home detention, a 1994 conviction for the same offense for which Cannon was sentenced to Community Corrections, and a 1997

2conviction for the same offense for whic h Cannon again was sentenced to Community Corrections. Judge Marchal then said:

Then in March of 2003 you were convict ed once again of operating a motor vehicle while having your license forfeited fo r life. You were given four years in the HOCCS program, and you were serving that sentence out of Criminal Court 6 when you committed this offense. All of those things tell me that your likelihood of re-offense is high. In fact, I would put it at automatic. . . . I find that you have had the benefit of alternative programmi ng consistently, but it has had no effect on your behavior. . . . As a mitigating factor I do find . . . that you have an alcohol problem . . . and I am also fi nding that imposition of a sentence in the Department of Correction would constitute a hardship on your wife. I know she wants you back. I know she has made a fervent plea on your behalf, but I am noting the Court’s own hand notes from th e Court 6 case that indicates on 7/25/03 and this is a direct quote from the judge , Judge Barker, “If he messes up off to DOC. Can’t use his wife’s hardship again.” The prior judge gave me notice that you would likely bring your wife in here to make the same plea in an effort to get leniency. Sir, I don’t want to do what I am about to do to you, but I can’t avoid it . . . . I believe the aggravators far, far, far outweigh the mitigators . . . . I am sentencing you to a term of five years in th e Indiana Department of Correction . . . . Your sentence must run consecutiv e to any sentence you are serving or must

serve. ( Id. at 47-49.)

On appeal, Cannon argued that Judge Marchal’s reference to Judge Barker’s note was an improper ex parte communication. Although the Court of Appeals affirmed the conviction and sentence, the panel concluded that Judge Marc hal’s reference to the note was an improper ex parte communication and a violation of Canon 3B(8 ) of the Code of Judicial Conduct. Cannon

, 839 N.E.2d at 194. We conclude otherwis e. Judge Barker’s note was not an ex parte communication, and Judge Marchal did not violate the Code of Judicial Conduct.

The Rule Against Ex Parte Communications

To be sure, the Court of Appeals was correct that improper ex parte communications are not necessarily limited to communications between judges and lawyers or pa rties. A judge may not hear from another judge, any more properly than from a lawyer or anyone else, facts or information about a case, nor may a judge allow another to affect the judge’s impartiality and

3independence. However, it is not so that “any” communication about a case outside the presence of the parties is improperly ex parte, and Canon 3B(8) does not include that language. See Ind. Judicial Conduct Canon 3B(8).

Judges may certainly seek each other’s counsel in the performance of their judicial duties. Canon 3 sets out as an exception to the prohibition against ex parte communications consultations “with court personnel and others whos e function is to aid the judge in carrying out the judge’s adjudicative responsibilities, or with other judges .” Id. at 3B(8)(c) (emphasis added). In fact, we encourage judges to rely on one a nother for advice and consultation. Although this notion certainly encompasses the discussion of abstract legal issues, it does not preclude discussions that touch on a particular case. A judge is not required to couch an inquiry or discussion in abstract terms when particular fact s and circumstances, in reality, are central to the topic.

Thus, judges may confer about specific cases in furtherance of their adjudicative responsibilities without violating the rule against ex parte communications. In People v.

Hernandez , 206 Cal. Rptr. 843 (Cal. Ct. App. 1984), the sentencing judge consulted with another judge to determine how properly to sentence Herna ndez. In response to the assertion that this was an improper ex parte communication, the court cited commentary in the California Code of Judicial Conduct similar to our Canon 3B(8)(c) and said: “The commentaries to the canons of judicial conduct recognize, as we do, that disc ourse between judges such as occurred in the instant case is not inconsistent with public expectations of the decision-making process or erosive of public confidence in the judiciary.” Id. at 850

. In McKenzie v. State , 583 N.W.2d 744 (Minn. 1998), the trial judge had decided to impanel an anonymous jury after a meeting with other judges presiding over McKenzie’s co-defendants’ cases. As the McKenzie court wrote: McKenzie has not cited any authority for the proposition that a judge may not discuss potential issues with a judicial coll eague in the absence of the parties. We believe it is inherently a judge’s role to assist colleagues in performing their adjudicative responsibilities . . . . Our syst em of justice would suffer greatly if judges could not discuss cases with, so licit input from, and benefit from each other’s richly varied experiences.

Id. at 748.

4Of course, improper ex parte contacts are among the most pernicious of ethical violations. The opportunity for all sides to be h eard is at the heart of our adversarial system. In

re Ettl

, 851 N.E.2d 1258, 1260 (Ind. 2006). Improper ex parte communications undermine the fairness of the case at hand, and they threaten the reputation of the legal profession and the integrity of our system of justice. Id. A judge may not permit the receipt of extra-judicial information about a case from anyone, including a colleague. A judge may not provide or entertain case-specific facts or allegations a nd, in every case, must exercise independent judgment. This does not preclude a judge from engaging in objective discussions with other impartial judges in furtherance of the deliberative or contemplative process. A judge may confer with another for guidance or advice.

This Case

The Court of Appeals premised its conclusion that Judge Marchal should not have read or considered Judge Barker’s note in the Court 6 file on the idea that the Court 6 case was a different matter from Cannon’s sentencing hear ing and that Judge Marchal looked beyond the record of the Court 3 case when he read Judge Barker’s handwritten note, calling it an ex parte communication from one judge to another. Cannon , 839 N.E.2d at 194. However, the limited record before us seems adequate to demons trate that Judge Marchal had an adjudicative responsibility over both the Court 6 case and the Court 3 case at the hearing from which this appeal arises.

When Judge Marchal found Cannon guilty in the Court 3 matter and set a sentencing date, Cannon asked him to reinstate his bond. Judge Marchal inquired if Cannon was “nonsuspendible” and Cannon’s attorney and the State told him, in essence, that Cannon still was serving the sentence to HOCCS. Judge Marcha l remanded Cannon to custody and said, “And, if you could just alert HOCCX [sic] and they can deal w ith that violation on that date as well.” (Tr. at 34-35.) Thus, as the State noted in its Re sponse in Opposition to Transfer, the parties had notice that Judge Marchal woul d handle Cannon’s HOCCS violation at a hearing set for October 22, 2004. (Appellee’s Response in Opposition to Transfer at 3.)

5And so it came to pass. On October 22nd, Judge Marchal called the Court 3 case and the “companion case, 03036935,” referring to the HOCCS violation originally docketed in Court 6. In fact, a representative from the HOCCS program was present for the hearing. (Tr. at 39-40.) The transcript suggests that Judge Marchal completed a disposition of the Court 3 matter, including the requirement that the sentence be c onsecutive to any sentence in the Court 6 case, and then moved on to the Court 6 disposition. (Tr. at 49-51); Ind. Code Ann. § 35-50-1-2(d)(1) (West 2007).

Inasmuch as Judge Marchal was performing judicial functions with respect to both Cannon’s cases, the Court 6 case file was properly befo re the court as part of the record, not as

an external communication. Reliance on hand- written notes, even a judge’s notes, can pose some risk, of course, and we do not have the be nefit of a transcript of the original Court 6 sentencing hearing. But, Cannon does not dispute that Judge Barker entertained his hardship plea at the 2003 sentencing. Judge Marchal was entitled to note that fact. If the transcript itself had been in the file and Judge Marchal referred to it instead of to Judge Barker’s note, no possible argument could be made that it should have been ignored. See generally Sanders v.

State , 782 N.E.2d 1036, 1038 (Ind. Ct. App. 2003) (citing Owen v. State , 272 Ind. 122, 129, 396 N.E.2d 376, 381 (1979)). Cannon cannot be heard to complain that, when he asked for yet

another alternative sentence based on his wife’s ha rdship, Judge Marchal did not turn a blind eye to the fact that Cannon successfully made the sa me plea during a prior h earing on a case in which Judge Marchal was ruling at that moment.

Conclusion

The Court of Appeals otherwise appropriately disposed of Cannon’s allegations of error. Ind. Appellate Rule 58(A). We affirm the judgment of the trial court.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.

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