ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

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 

EDDIE CANNON, 

 Appellant (Defendant below), 

v. 

STATE OF INDIANA, 

 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 Indiana Court of Appeals, No. 49A05-0411-CR-622 

May 22, 2007 

Shepard, Chief Justice. 

Eddie Cannon was convicted of operating a vehicle after his license was forfeited for life 

and was sentenced to five years 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 vehicle 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 Marion 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 charged 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 forfeited for life, with operating a motor vehicle 

while intoxicated, and with public intoxication, 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 bench trial and found him guilty of operating a 

motor vehicle after his license was forfeited for life. 

 

Cannon’s wife testified at the sentencing hearing 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 because 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 day. . . . [M]y wife was having an asthma attack 

. . . [a]nd I just ask if the Court could find a way, you know, if I could be reinstated 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 the clearest aggravating factor to be Cannon’s 

criminal history, which included among other things a 1992 conviction for operating a vehicle 

after a lifetime forfeiture for which Cannon was sentenced to home detention, a 1994 conviction 

for the same offense for which Cannon was sentenced to Community Corrections, and a 1997 

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conviction for the same offense for which Cannon again was sentenced to Community 

Corrections. Judge Marchal then said: 

Then in March of 2003 you were convicted once again of operating a motor 

vehicle while having your license forfeited for 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 programming 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 finding 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 the 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 the Indiana Department of Correction 

. . . . Your sentence must run consecutive 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 Marchal’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 otherwise. 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 parties. 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 

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independence. 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 whose 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 another 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 facts 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 Hernandez. 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 discourse 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 colleague in the absence of the parties. We 

believe it is inherently a judge’s role to assist colleagues in performing their 

adjudicative responsibilities . . . . Our system of justice would suffer greatly if 

judges could not discuss cases with, solicit input from, and benefit from each 

other’s richly varied experiences. 

Id. at 748. 

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Of course, improper ex parte contacts are among the most pernicious of ethical 

violations. The opportunity for all sides to be heard 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 and, 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 hearing 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 demonstrate 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 Marchal remanded Cannon to custody and said, “And, if 

you could just alert HOCCX [sic] and they can deal with that violation on that date as well.” (Tr. 

at 34-35.) Thus, as the State noted in its Response in Opposition to Transfer, the parties had 

notice that Judge Marchal would handle Cannon’s HOCCS violation at a hearing set for October 

22, 2004. (Appellee’s Response in Opposition to Transfer at 3.) 

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And 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 consecutive 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 before 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 benefit 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 hardship, Judge Marchal did not turn a blind eye 

to the fact that Cannon successfully made the same plea during a prior hearing 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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