Loren Wayne Tidwell v. State of Indiana

Indianapolis, IN - Criminal Defense lawyer represented defendant with a murder and conspiracy to commit murder charges. He now challenges his habitual offender status

Tidwell's convictions of murder and conspiracy to commit murder, and his

habitual offender determination were affirmed on direct appeal. See Tidwell v.

State, 644 N.E.2d 557 (Ind. 1994). Next, he filed a petition for post-conviction

relief in which he attacked the sufficiency of the underlying prior felonies used

to establish his habitual offender status. After the post-conviction court denied

Tidwell's petition, this Court affirmed the denial of the petition, and the

Supreme Court denied his petition for transfer. See Tidwell v. State, No. 24A01-

0302-PC-60, 2003 WL 22076493 (Ind. Ct. App. Sept. 3, 2003), trans. denied.

[3] On November 20, 2020, Tidwell sought permission from this Court to file a

successive petition for post-conviction relief, which was denied in December.

See Appellant's App. Vol. 2, p. 37. Tidwell later filed a motion to correct

erroneous sentence, claiming the very same grounds as respects his habitual

offender enhancement. After the State's response was filed, the court granted

Tidwell's motion.

[4] The State filed a motion to correct error from the court's decision on September

20, 2021, claiming the court's order granting the motion to correct erroneous

sentence was in error and asking for the trial judge to recuse. Dearborn Circuit

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Court Judge Humphrey, who had prosecuted Tidwell's habitual offender status,

recused, and Senior Judge Stewart, who issued the order granting the motion to

correct erroneous sentence, recused, after which Dearborn Superior Court

Judge Cleary was appointed as special judge and took the matter under

advisement. Special Judge Cleary granted the State's motion to correct error,

vacated the court's August 13, 2021, order, re-instated the April 15, 1992,

sentence "in full force and effect,” and ordered a new abstract of judgment

reflecting the original sentence imposed. Tidwell now appeals.

Discussion and Decision

I. Recusals

[5] The State's motion to correct error, in part, asked for the recusal of Special

Judge Stewart, citing that he had previously represented Tidwell in one of the

criminal cases resulting in a conviction that was used to establish Tidwell's

habitual offender status. The result of the motion was the recusal of both

Judges Stewart and Humphrey. Judge Humphrey had previously prosecuted

Tidwell's habitual offender status. Tidwell says that the court committed clear

error when it granted the State's motion.

[6] "The ruling on a motion for change of judge is reviewed under the clearly

erroneous standard.” Garland v. State, 788 N.E.2d 425, 433 (Ind. 2003). It is

well established that findings are clearly erroneous only when the record

contains no facts to support them either directly or by inference. See Yanoff v.

Muncy, 688 N.E.2d 1259, 1262 (Ind. 1997). "A judgment is clearly erroneous if

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it applies the wrong legal standard to properly found facts.” Id. We must be

left with a firm conviction that a mistake has been made to reach the

determination that a finding or conclusion is clearly erroneous. Id.

[7] While "the law presumes that a judge is unbiased and unprejudiced,” see

Garland, 788 N.E.2d at 433, defendants in criminal actions have a due process

right to a trial by an impartial tribunal. See Blanche v. State, 690 N.E.2d 709, 714

(Ind. 1998). To that end, Indiana Criminal Rule 12(B) provides that a party

shall timely file an affidavit, alleging bias or prejudice, and stating facts and

reasons for the belief of such bias or prejudice, accompanied by a certificate that

the facts as stated are true.

[8] The State's motion set out that it became aware that Special Judge Stewart,

while in private practice, had represented Tidwell in one of the underlying

felonies used to establish his habitual offender status. Appellant's App. Vol. 2,

p. 66. While in private practice, and as it pertained to Tidwell's Franklin

County criminal conviction that was later used to establish Tidwell's habitual

offender status, Special Judge Stewart signed an affidavit stating that he did not

recall Tidwell or his Franklin County criminal case. See Appellant's App. Vol.

2, p. 126. Tidwell asserts that this affidavit supports his argument that Judge

Stewart should not have recused. However, as special judge, he recused

pursuant to Indiana Trial Rule 79(C), and, subsection (4), in particular, is

applicable here, along with the provisions of the Code of Judicial Conduct.

(T.R. 79(C)(4)-judge shall disqualify if associated with pending litigation such

that disqualification is required under Code of Judicial Conduct); (Ind. Judicial

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Conduct Rule 2.11(6)(a)-judge shall disqualify in proceeding where impartiality

might be questioned such as when the judge served as a lawyer in the matter in

controversy). His recusal was not clearly erroneous because he served as

Tidwell's lawyer pertaining to the matter at hand, and the Code of Judicial

Conduct requires as much.

[9] As for Judge Humphrey, Tidwell acknowledged that "Judge Humphrey was the

[prosecutor] on this particular case and he is the one who actually filed the

Habitual Offender Enhancement that is in question in Tidwell's Erroneous

Sentence Motion.” See Appellant's App. Vol. 2, p. 98. Judge Humphrey

recused himself under Trial Rule 79, where reasons similar to those of Judge

Stewart would require him to do so. Judge Humphrey, while working for the

State, prosecuted Tidwell on this very matter. His recusal was not clearly

erroneous.

[10] Tidwell also complains that he was excluded from the process by which Special

Judge Cleary was selected, arguing that Judge Humphrey appointed "his friend

and everyday colleague” to decide the matter. See id. However, this argument

is unavailing. Trial Rule 79(D) does set out the procedure for the selection of a

special judge by agreement of the parties, but, nonetheless, states "[t]his

provision shall not apply to criminal proceedings.” Trial Rule 79(H) provides

for the selection of a special judge in such circumstances according to local rule.

Here, Dearborn County Local Rule 15-AR-7(B) provided that the judge of

either of the Dearborn Superior Courts was the first eligible to qualify for the

assignment. Dearborn Superior Court Judge Cleary's appointment by the

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Dearborn County Clerk under this procedure was not an abuse of discretion,

nor was it clearly erroneous. We find that the recusals were not clearly

erroneous and that there was no abuse of discretion or clear error in the process

by which Special Judge Cleary was selected.

II. Motion to Correct Error

[11] Tidwell claims that the court abused its discretion by granting the State's

motion to correct error. In general, a court has broad discretion to correct

errors, and we will reverse only for an abuse of that discretion. Wurster Const.

Co., Inc. v. Essex Ins. Co., 918 N.E.2d 666, 671 (Ind. Ct. App. 2009). "An abuse

of discretion occurs when the trial court's action is against the logic and effect

of the facts and circumstances before it and the inferences that may be drawn

therefrom, or is based on impermissible reasons or considerations.” Id.

[12] Tidwell's July 15, 2021 motion to correct erroneous sentence, claimed grounds

that went far afield from those allowed in such a motion. A motion to correct

an erroneous sentence under Indiana Code section 35-38-1-15 (1983), may only

be filed to address a sentence that is erroneous on its face. See Neff v. State, 888

N.E.2d 1249, 1251 (Ind. 2008) (citing Robinson v. State, 805 N.E.2d 783, 786

(Ind. 2004)). Here, however, Tidwell argued that the habitual offender

enhancement was insufficient on grounds it was improperly certified and

authenticated, and supplied documentary evidence to support those arguments.

The court determined that it had erroneously granted the motion, when it

became evident that the asserted claims were attacks on the sufficiency of the

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evidence with respect to the habitual offender adjudication, not to facial errors

pertaining to the sentence. When consideration of the proceedings before,

during, or after trial are required, they may not be presented by way of a motion

to correct erroneous sentence. See Robinson, 805 N.E.2d at 787. The court did

not abuse its discretion by correcting its prior ruling and granting the State's

motion to correct error, thereby denying Tidwell's motion to correct erroneous

sentence.

III. Habitual Offender Status and Res Judicata

[13] Next, Tidwell claims that his habitual offender status was unsupported by

properly signed, certified, and authenticated documentation. The State, on the

other hand, says that his argument is barred by res judicata, as that issue has

previously been decided against Tidwell, and may not be presented as a freestanding claim in this appeal. We agree with the State.

[14] The doctrine of res judicata encompasses the principles of issue preclusion and

claim preclusion. See Freels v. Koches, 94 N.E.3d 339, 342 (Ind. Ct. App. 2018).

Whether in the form of claim preclusion or issue preclusion, res judicata's

function is to prevent repetitious litigation of disputes that are essentially the

same by holding a prior final judgment binding against both the original parties

and their privies. See, e.g., Indianapolis Downs, LLC v. Herr, 834 N.E.2d 699, 703

(Ind. Ct. App. 2005), trans. denied. "Claim preclusion applies where a final

judgment on the merits has been rendered and acts as a complete bar to a

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subsequent action on the same issue or claim between those parties and their

privies.” Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008).

[15] Here, Tidwell admittedly alleged in his petition for post-conviction relief that

the evidence supporting the underlying felonies used to establish his habitual

offender enhancement was insufficient. See Appellant's Br. p. 5. His petition

was denied, that denial was affirmed on appeal, and his petition to transfer was

denied. Next, Tidwell sought permission to file a successive petition for postconviction relief, raising the same argument about the validity of his habitual

offender status. This Court denied Tidwell's request for permission to file his

petition because he had "failed to establish a reasonable possibility that [he] is

entitled to post-conviction relief.” Appellant's App. Vol. 2, p. 37.

[16] Because Tidwell's claim has already been decided against him, he may not raise

it here again as a free-standing claim of error. His claim is barred. He has not

established that the court erred by granting the State's motion to correct error

on these grounds, thereby denying Tidwell's motion to correct erroneous

sentence.

In light of the foregoing, we affirm the decision of the trial court.



Affirmed.