Court of Appeals of Indiana | Memorandum Decision 73A01-1604-CR-767 | December 29, 2016 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Cynthia M. Carter

Law Office of Cynthia M. Carter, LLC

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jeffrey R. Chaney,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

December 29, 2016

Court of Appeals Case No.

73A01-1604-CR-767

Appeal from the Shelby Superior 

Court

The Honorable R. Kent Apsley, 

Judge

The Honorable Charles O’Connor, 

Judge

Trial Court Cause No.

73D01-1502-FA-2

Baker, Judge.
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[1] Jeffrey Chaney appeals the trial court’s finding that he is an Habitual Offender,1

as well as the sentence imposed by the trial court for that finding plus his 

convictions for Class A Felony Child Molesting2 and Class C Felony Child 

Molesting.3 With respect to the Habitual Offender finding, Chaney contends 

that (1) the trial judge should have recused himself from the sentencing portion 

of the proceedings because he was the prosecutor for two of the underlying 

convictions supporting the finding; and (2) there is insufficient evidence 

supporting the finding. Chaney also contends that the sentence imposed by the 

trial court is inappropriate in light of the nature of the offenses and his 

character. Finding no error, sufficient evidence, and that the sentence is not 

inappropriate, we affirm.

Facts

[2] Chaney is the biological father of P.L.C., who was born in 2005. Beginning 

when P.L.C. was four or five years old, Chaney molested P.L.C. by touching, 

oral sex, and vaginal and anal intercourse. The molestations occurred every 

week, often twice per week, during the years that she lived with Chaney. 

Chaney often made P.L.C. say to him, “I want you” and “I love you” and 

sometimes called her “b*tch.” Tr. p. 403-04; State Ex. 2, 3. P.L.C. 

remembered that Chaney had molested her while they lived at her uncle’s 

 

1

Ind. Code § 35-50-2-8.

2

Ind. Code § 35-42-4-3.

3

Id.
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house, which was in a trailer park. The family moved to that address on May 

7, 2013.

[3] On February 6, 2015, the State charged Chaney with child molesting as a class 

A and a class C felony. On October 15, 2015, the State filed an allegation that 

Chaney was an habitual offender.

[4] Chaney’s bifurcated jury trial began on February 23, 2016. By agreement of the 

parties, Judge Apsley presided over the guilt and sentencing phases, while 

Judge O’Connor presided over the enhancement phase. The parties and the 

trial court made this arrangement because Judge Apsley had been the elected 

prosecutor when Chaney received his prior convictions supporting the habitual 

offender allegation. On February 24, 2016, the jury found Chaney guilty as 

charged of the two felony offenses. The next day, Judge O’Connor presided 

over the enhancement phase, and the jury returned a finding that Chaney was 

an habitual offender. 

[5] On March 23, 2016, Judge Apsley conducted the sentencing hearing. Chaney 

received a sentence of forty-three years, with three years suspended, for the 

class A felony conviction, and a concurrent sentence of eight years for the class 

C felony. The trial court enhanced the sentence by thirty years for Chaney’s 

status as a habitual offender, for an aggregate seventy-three-year term. Chaney 

now appeals.
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Discussion and Decision

I. Recusal

[6] First, Chaney argues that Judge Apsley was prohibited from presiding over the 

sentencing hearing by the Judicial Canons. Initially, we note that Chaney’s 

attorney did not object to this process; consequently, he has waived this 

argument. See Carr v. State, 799 N.E.2d 1096, 1098 (Ind. Ct. App. 2003) 

(holding that timeliness is important on recusal issues and “a party may not lie 

in wait and only raise the recusal issue after receiving an adverse decision”).

[7] Waiver notwithstanding, we turn our attention to Indiana Judicial Conduct 

Canon 2.11, which provides as follows:

(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: 

***

(6) The judge:

(a) served as a lawyer in the matter in 

controversy, or was associated with a lawyer 

who participated substantially as a lawyer in 

the matter during such association . . . .

Chaney asks us to find that the fact that Judge Apsley was the elected 

prosecutor at the time Chaney was convicted of two of the offenses underlying 
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the habitual offender finding means that Judge Apsley served as a lawyer in the 

“matter in controversy.” As a result, Chaney insists that Judge Apsley should 

not have presided over the sentencing phase of the proceedings.

[8] In Rankin v. State, our Supreme Court affirmed a trial judge’s denial of a motion 

to recuse where the judge had served as the prosecutor for one of the 

defendant’s prior convictions used to support a habitual offender allegation. 

563 N.E.2d 533 (Ind. 1990). The Rankin Court reasoned that recusal would 

have been required only if the defendant’s connection to the prior convictions 

had been disputed, for in that case the trial judge might have been called as a 

witness. Id. at 536.

[9] Along the same lines, this Court found that a trial judge was not required to 

recuse himself where he had been the prosecutor in one of the cases relied on to 

establish the defendant’s habitual offender status. Jackson v. State, 33 N.E.3d 

1173, 1178 (Ind. Ct. App. 2015), summarily aff’d in relevant part, 50 N.E.3d 767, 

770 n.1 (Ind. 2016). The Jackson Court looked to Dishman v. State, 525 N.E.2d 

284 (Ind. 1988), which concerned a similar factual situation. In Dishman, our 

Supreme Court held as follows:

In this situation, the trial judge would have erred had there been 

any factual contesting of the prior convictions. However, such 

was not the case here. Once the certified convictions were 

presented to the jury, the determination of the status as habitual 

criminal was virtually a foregone conclusion. There is no 

indication in this situation that the trial judge’s personal 

knowledge of appellant's prior convictions in any way played a 
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part in the jury’s determination as to the status of habitual 

offender.

Id. at 285. In Jackson, the defendant likewise did not contest the evidence of the 

prior convictions supporting the habitual offender adjudication. Consequently, 

the trial court did not err by denying the motion for change of judge. 33 N.E.3d 

at 1178-79.

[10] Chaney argues that this line of cases, beginning with Dishman and Rankin, has 

been superseded by the Indiana Code of Judicial Conduct, which was adopted

in 1993. Whether or not that is accurate, we find that the analysis contained in 

these cases is still relevant and sound. The starting point must be that the 

“matter in controversy” referenced by Judicial Conduct Rule 2.11 is the 

criminal proceeding being litigated. To bring a different case under the “matter 

of controversy” umbrella, at the very least, there must be a dispute creating a 

controversy—otherwise, there would be no need to recuse. Therefore, where 

the defendant is not contesting the evidence of the prior convictions supporting 

the habitual offender adjudication, those convictions are not the “matter in 

controversy[.]” Ind. Judicial Conduct Rule 2.11(A)(6)(a). 

[11] Here, Chaney does not contest the evidence of his prior convictions. 

Consequently, Judge Apsley was not required to recuse himself from the 

habitual offender adjudication (though he chose to do so out of an abundance 

of caution), much less the sentencing phase after the adjudication had already 

occurred.
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[12] Additionally, we note that this Court has described a dearth of authority to 

support the notion that a judge may be qualified to preside over a jury trial yet 

disqualified for purposes of sentencing. Sisson v. State, 985 N.E.2d 1, 19 (Ind. 

Ct. App. 2012) (holding that a judge’s prior time as prosecutor did not require 

recusal from sentencing the defendant), trans. denied. As Judge Apsley was 

unquestionably authorized to preside over the trial, we decline to find that he 

was unqualified to preside over sentencing. For multiple reasons, therefore, we 

find no error in Judge Apsley’s decision to preside over Chaney’s sentencing 

hearing.

II. Sufficiency

[13] Next, Chaney argues that the evidence underlying the habitual offender 

adjudication is insufficient to support the finding. In reviewing the sufficiency 

of the evidence, we will not reweigh the evidence, instead viewing the evidence 

in the light most favorable to the jury’s verdict. Toney v. State, 715 N.E.2d 367, 

369 (Ind. 1999).

[14] To establish that Chaney is an habitual offender, the State was required to 

prove beyond a reasonable doubt that he had been convicted of two prior 

unrelated felonies. Ind. Code § 35-50-2-8 (2013). The sentencing for the first 

felony must have preceded the commission of the second felony; and the 

sentencing for the second felony must have preceded the commission of the 

instant felony for which the enhanced sentence is being sought. Toney, 715 

N.E.2d at 369.
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[15] Chaney does not dispute that he was sentenced for two class D felonies on 

January 27, 2005. State’s Ex. 8. He also does not dispute that he was 

sentenced for another class D felony on April 16, 2013. State’s Ex. 10. 

Similarly, he does not dispute that the date on which he committed the latter 

felony was between January 1 and June 1, 2011—years after he was sentenced 

on the first two felonies. Chaney’s sole argument is that there is insufficient 

evidence establishing that he committed an act of child molestation after April 

16, 2013, when he was sentenced on the most recent felony conviction.

[16] We disagree. As a general matter, P.L.C. testified that Chaney molested her 

every week, often twice a week, and continued to do so until she was removed 

from his care and custody in early 2014. Tr. p. 398-99. More specifically, she 

also testified that among the locations where the molestations took place was 

the trailer home owned by her uncle. Id. at 408. A Department of Child 

Services (DCS) employee also testified. This individual had looked through the 

DCS computer system and determined that the family had lived at that trailer 

home between May 7 and August 30, 2013. Id. at 499. We find that this 

evidence is sufficient to establish that Chaney committed at least one act of 

molestation after April 16, 2013. Chaney’s arguments to the contrary amount 

to a request that we reweigh evidence and assess witness credibility—a request 

we decline. 
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III. Sentencing

[17] Finally, Chaney argues that the sentence imposed by the trial court is 

inappropriate in light of the nature of the offenses and his character. Indiana 

Appellate Rule 7(B) provides that this Court may revise a sentence if it is 

inappropriate in light of the nature of the offense and the character of the 

offender. We must “conduct [this] review with substantial deference and give 

‘due consideration’ to the trial court’s decision—since the ‘principal role of 

[our] review is to attempt to leaven the outliers,’ and not to achieve a perceived 

‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) 

(quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal 

citations omitted).

[18] For the class A felony conviction, Chaney faced a sentence of twenty to fifty 

years, with an advisory term of thirty years. Ind. Code § 35-50-2-4 (2013). The 

trial court imposed a term of forty-three years, with three years suspended. For 

the class C felony conviction, Chaney faced a sentence of two to eight years, 

with an advisory term of four years. I.C. § 35-50-2-6 (2013). The trial court 

imposed a maximum term of eight years imprisonment, but ordered that it be 

served concurrently with, rather than consecutively to, the class A felony 

sentence. For Chaney’s status as an habitual offender, the trial court was 

required to enhance the sentence by at least the advisory term for the underlying 

offense, meaning thirty years for the class A felony. I.C. § 35-50-2-8(h) (2013). 

Thirty years is also the maximum possible enhancement. Therefore, the trial 
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court imposed the required enhancement of thirty years, for an aggregate term 

of seventy-three years with three years suspended.

[19] The abhorrent nature of Chaney’s offenses can scarcely be overstated. He 

preyed on his own daughter beginning when she was four or five years old. He 

violated her in essentially every way possible, up to and including vaginal and 

anal intercourse. He forced her to tell him that “I want you” and “I love you” 

and called her derogatory names. Tr. p. 403-04. Moreover, these despicable 

acts occurred weekly, sometimes more than once a week, for years. As a result 

of this trauma, P.L.C. sees a therapist and suffers from bed-wetting and 

nightmares. In our view, given the nature of these offenses, the trial court 

showed admirable restraint in refraining from imposing the maximum possible 

term. The nature of the offenses does not aid Chaney’s Rule 7(B) argument.

[20] As for Chaney’s character, he has prior convictions for theft (twice), receiving 

stolen property, domestic battery, and resisting law enforcement. Altogether, 

he has three prior felony and four prior misdemeanor convictions. He has been 

placed on probation multiple times but has yet to successfully complete any 

term of probation. It is apparent that Chaney is unable or unwilling to conform 

his behavior to the laws of society and that he has a general disrespect for his 

fellow citizens. In short, his character does not aid his Rule 7(B) argument. 

We do not find the sentence imposed by the trial court to be inappropriate in 

light of the nature of the offenses and Chaney’s character.
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[21] The judgment of the trial court is affirmed.

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