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holding the defendant failed to meet his burden to establish recusal was required where the sentencing judge was involved in prosecuting an unrelated case, had “ ‘no specific recollection of the particulars of any of the cases' involving the defendant, but ‘certainly ha[d] a recollection’ of the defendant”
Summary of this case from State v. TolesOpinion
No. 6-099 / 05-0726
Filed March 15, 2006
Appeal from the Iowa District Court for Clarke County, Gary S. Kimes (plea) and John D. Lloyd (sentencing), Judges.
Daniel Rater appeals from the judgment and sentence entered upon his guilty plea to willful injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender and Dennis Hendrickson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, and Elisabeth S. Reynoldson, County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
The defendant-appellant, Daniel Rater, appeals from the judgment and sentence entered upon his guilty plea to willful injury. He contends the judge who presided at the sentencing hearing should have recused himself sua sponte based on prior dealings with him when the judge was county attorney. On review for an abuse of discretion, we affirm.
In the case before us, the judge brought up his prior contact with the defendant and did not wait for the defendant to seek recusal. The issue arose after the judge had reviewed the presentence investigation report and noted one of the defendant's prior convictions was during the judge's time as county attorney and that he would have been involved in prosecuting the case. The judge said he had "no specific recollection of the particulars of any of the cases" involving the defendant, but that the judge "certainly ha[d] a recollection" of the defendant. The judge offered the defendant the opportunity to discuss the issue with counsel out of the judge's presence to avoid any pressure or intimidation. The defendant did not want the judge to recuse himself, stating, "I believe you'll do what's best, whatever right is." When asked if he was willing to overlook any past history of the judge as county attorney, the defendant replied, "Yes sir, I am."
According to the plea agreement, the State recommended the court impose "an indeterminate term of incarceration not to exceed five years, that the term be suspended and the defendant be placed on two years of formal and supervised probation." The judge told the defendant, "there is almost nothing in this presentence investigation that gives the court any reason to believe that you can be successful on a probation." He continued, "You have a criminal history that's extensive, dates back to before you were an adult. You're now thirty-three years of age, almost thirty-four, and you've been in trouble continuously since you were sixteen or seventeen years old." In refusing to accept the recommendation of the State, the judge told the defendant, "I simply cannot suspend the sentence based on your prior criminal record and your lack of responsibility in other areas."
On appeal, the defendant contends this is an issue of first impression and presents circumstances when "a sentencing judge must, per se, recuse himself . . . because of a prior role as prosecuting attorney of the defendant." The State asserts error was not preserved because the defendant did not make a motion that the judge recuse himself. The defendant argues that, in this particular situation, the issue preserves itself. The recusal issue was raised in and decided by the district court. We therefore will address the merits.
A defendant has a constitutional right to have a neutral and detached judge. State v. Mann, 512 N.W.2d 528, 532 (Iowa 1994). Canon 3 suggests that a judge's impartiality might be questioned where the judge "has a personal bias or prejudice concerning a party." Iowa Code of Judicial Conduct canon 3(C)(1)( a). Only personal bias or prejudice stemming from an extrajudicial source constitutes a disqualifying factor. See State v. Smith, 282 N.W.2d 138, 142 (Iowa 1979). Actual prejudice must be shown before a recusal is necessary. State v. Biddle, 652 N.W.2d 191, 198 (Iowa 2002). Speculation is not sufficient, and "there is as much obligation for a judge not to recuse when there is no occasion for him to do so as there is for him to do so when there is." Mann, 512 N.W.2d at 532 (citation omitted). The burden of showing grounds for recusal is on the party seeking recusal. State v. Haskins, 573 N.W.2d 39, 44 (Iowa Ct.App. 1997). This burden is substantial and we will not overturn the trial judge's decision absent an abuse of discretion. State v. Farni, 325 N.W.2d 107, 110 (Iowa 1982).
The defendant argues the issue is not about what the judge or the defendant is "willing to overlook," but rather what a reasonable person can be expected to overlook. We agree that we apply an objective, rather than subjective, test. Mann, 512 N.W.2d at 532 (noting the test for disqualification is an objective one). "A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." Iowa Code of Judicial Conduct Canon 3(C)(1). A judge is disqualified from acting in a proceeding if the judge "has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Iowa Code § 602.1606(1) (2005). To be a disqualifying factor, the bias or prejudice must stem from an extrajudicial source and "`result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'" Smith, 282 N.W.2d at 142 (quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L. Ed. 2d 778, 793 (1966)).
In this case, the judge had the presentence investigation report that set forth the defendant's long criminal history, his unemployment, his failure to pay child support, and other pertinent information. Even though the judge refused to follow the recommendation of the prosecutor, the sentence imposed rests securely on the foundation of the information in the presentence investigation report. We do not see any evidence of personal bias or prejudice or that the sentence stems from some basis other than the judge's participation in this case. We conclude the defendant has not met his burden to demonstrate the judge abused his discretion in not recusing himself from the sentencing proceeding.