Mathias, J.
David A. Mathews (“Mathews”) was convicted in Adams Superior Court of misdemeanor operating a vehicle while intoxicated and felony obstruction of justice. …
On July 24, 2003, Mathews was charged with several violations … including Class D felony operating a vehicle while intoxicated endangering a person. …Patrick R. Miller, then a public defender (“Attorney Miller”), now Adams Superior Court judge (“Judge Miller”), was appointed counsel to Mathews. …
On June 3, 2004, new charges were filed against Mathews. … The court appointed Attorney Miller to represent Mathews … Attorney Miller noticed his intent to decline the appointment on August 3, 2004, and was withdrawn by the court the same day. …
On May 16, 2011, …Mathews was charged with Class D felony intimidation and Class B misdemeanor public intoxication. … In light of his prior record, including the 2003 Case, the State sought habitual substance offender status for Mathews … Presiding over Mathews’s February 8, 2012, jury trial in Adams Superior Court was Attorney Miller, who had since been elected in 2008 to become Judge Miller …
At the conclusion of the first phase, the jury returned guilty verdicts on the felony and misdemeanor charges. Mathews then moved for a mistrial, arguing that Judge Miller’s representation of Mathews in the 2003 Case disqualified Judge Miller from presiding over proceedings in the 2011 … Judge Miller denied Mathews’s motion but, out of an abundance of caution and concern for the appearance of impropriety, transferred the case to the judge of Adams Circuit Court to hear the recidivist charge. The circuit court jury found Mathews to be a habitual substance offender. … This court affirmed Judge Miller and Mathews’s convictions on direct appeal. Mathews v. State, 978 N.E.2d 438 (Ind. Ct. App. 2012).
On November 7, 2014, while on parole from his sentence in the 2011 Case, Mathews was charged with a number of new motor vehicle offenses …
These charges … underlie Mathews’s current appeal. …
… On December 15, 2014, Judge Miller appointed a public defender to Mathews’s case.
On April 1, 2015, Mathews and counsel appeared before Judge Miller for a pretrial conference. There, Mathews made the following statement to the court:
… And the second request your honor, is that I would like him to file a Change of Venue or Change of Judge due to your bias because of the past experiences that I had with you on the last trial. …
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On June 9, 2015, Mathews appeared before a senior judge of Adams Superior Court for another pretrial conference. …
The same day as the conference, June 9, 2015, the chronological case summary shows entry of “Defendant’s Verified Motion for Recusal of Judge.” The “verified motion” was not verified, cited no trial rule or statute, and was misdated by more than eight months. … Legally, the motion alleged that Judge Miller was required to recuse himself under “Judicial Canon 2.11(A),” and that failure to recuse would deprive Mathews of his “substantive due process” rights. …
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On June 15, 2015, Judge Miller denied the motion for recusal. The grounds for that denial do not appear in the record. On November 23, 2015, Mathews’s case was tried to a jury before Judge Miller. The jury found Mathews guilty of operating while intoxicated and obstruction of justice as charged. Mathews was sentenced by Judge Miller on December 17, 2015.
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Ordinarily in a criminal case, parties seeking to overcome the presumption of judicial impartiality must move for a change of judge under Rule 12 of the Indiana Rules of Criminal Procedure. …
Mathews concedes that his cursory, unverified motion for recusal, filed seven months after his initial hearing before Judge Miller, does not follow the mandates of Rule 12. However, Mathews argues that he is nonetheless entitled to relief because the Indiana Code of Judicial Conduct (“the Code”) required Judge Miller to recuse himself.
The Code provides that “[a] judge shall disqualify himself . . . in any proceeding in which the judge’s impartiality might reasonably be questioned . . . .” Ind. Judicial Conduct Rule 2.11(A). …
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At the outset it is necessary to address the proposition underlying Mathews’s arguments: that the Code supplies a freestanding mechanism for relief, independent of a properly brought Rule 12 motion. We disagree.
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Recusal cases have sometimes treated the Code as supplying the substantive content of the standard for recusal under Rule 12. See, e.g., Thakkar v. State, 644 N.E.2d 609 (Ind. Ct. App. 1994). However, no decision of this court or our supreme court has granted relief solely on the basis of the Code’s requirements absent an independent procedural vehicle for bringing the claim. …It is undeniable that the Code fixes a judge’s obligations. We hold, however, that those obligations do not create freestanding rights of enforcement in private parties. …
Accepting Mathews’s contrary position would effectively nullify Rule 12 by creating a new species of recusal motion that could be brought at any time, in any manner, on grounds far broader than those contemplated by Rule 12. … This cannot be the result intended by the drafters of Rule 12 and of the Code. …
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Finally, as to Judge Miller’s failure to disclose sua sponte his prior representation of Mathews, we note that this directive appears in a nonbinding comment to a rule, not in a rule itself. … However, it would seem that, as repetitive as such a disclosure might become in the case history of a serial recidivist like Mathews, disclosure is preferred.
For these reasons, we cannot say that Judge Miller’s denial of Mathews’s procedurally defaulted Rule 12 motion was clearly erroneous.
Affirmed.
Robb, J., and Brown, J., concur.