Leon Tyson v. State of Indiana

FILED

Aug 11 2023, 10:16 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE

Jimmy Gurulé Theodore E. Rokita

Elliot Slosar Attorney General of Indiana

Admitted Pro Hac Vice

Kelly A. Loy

Exoneration Justice Clinic Deputy Attorney General

Notre Dame Law School

Indianapolis, Indiana

South Bend, Indiana

Elliot Slosar

The Exoneration Project

Chicago, Illinois

Robert Hochman

Minje Shin

Admitted Pro Hac Vice

Sidley Austin LLP

Chicago, Illinois

Mark A. Bates

Highland, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Leon Tyson, August 11, 2023

Appellant-Petitioner Court of Appeals Case No.

22A-PC-143

v. Appeal from the Elkhart Superior

Court

State of Indiana, The Honorable Teresa L. Cataldo,

Appellee-Respondent. Judge

Trial Court Cause No.

20D03-1807-PC-37

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 1 of 34

Opinion by Judge Pyle

Judges Crone and Bradford concur.

Pyle, Judge.

Statement of the Case

[1] A jury convicted Leon Tyson (“Tyson”) of murder in 2017. This Court affirmed

Tyson’s conviction on direct appeal. See Tyson v. State, No. 20A03-1704-CR-789,

2017 WL 5761227 (Ind. Ct. App. Nov. 29, 2017), trans. denied. In 2018, Tyson

filed a petition for post-conviction relief. In May 2021, Tyson, represented by

attorneys Jimmy Gurulé (“Attorney Gurulé”) and Elliot Slosar (“Attorney

Slosar”), filed an amended petition for post-conviction relief.1 Also, in May 2021,

Tyson filed a motion for a change of judge pursuant to Post-Conviction Rule

1(4)(b).2 The post-conviction court denied Tyson’s change of judge motion, and

1

At the outset, in full transparency, we note that Attorney Gurulé, who is affiliated with Notre Dame Law

School’s Exoneration Justice Clinic (“the Clinic”), filed Tyson’s appellate brief on September 8, 2022. On

November 16, 2022, Attorney Gurulé gave a presentation to several judges on this Court. During this

presentation, Attorney Gurulé spoke about the Clinic. He also spoke about one of the Clinic’s cases, Royer v.

State, 166 N.E.3d 380 (Ind. Ct. App. 2021). In Royer, this Court affirmed the post-conviction court’s order

that granted Royer’s successive petition for post-conviction relief based on newly discovered evidence and

Brady violations and vacated Royer’s murder conviction. Id. at 405. In Tyson’s appellate brief, Attorney

Gurulé cites Royer in support of his argument that the post-conviction court erred in denying Tyson’s motion

for a change of judge. We note that none of the judges on this panel of Tyson’s appeal attended Attorney

Gurulé’s presentation or discussed the Royer case with any of the judges who attended the presentation.

2

Although Tyson’s motion was titled a motion for recusal, we note that Post-Conviction Rule 1(4)(b) does

not include the term recusal. Rather, Post-Conviction Rule 1(4)(b) uses the terms change of judge. We will,

therefore, refer to Tyson’s motion as a motion for a change of judge.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 2 of 34

this interlocutory appeal concerns only the post-conviction court’s denial of that

motion.3 Tyson specifically argues that the post-conviction court clearly erred

when it denied his motion for a change of judge. Concluding that the post-

conviction court did not clearly err, we affirm the post-conviction court’s denial

of Tyson’s change of judge motion.4

[2] We affirm.

Issue

Whether the post-conviction court clearly erred when it denied

Tyson’s motion for a change of judge.

3

We express no opinion on the merits of Tyson’s post-conviction relief petition, which is pending before the

post-conviction court.

4

We note that Attorney Gurulé is also representing Pink Robinson (“Robinson”) and Iris Seabolt

(“Seabolt”), two other petitioners who are appealing the post-conviction court’s denial of their change of

judge motions. Robinson’s appeal was originally filed under Cause Number 22A-PC-1102, and Seabolt’s

appeal was originally filed under Cause Number 22A-PC-208. In May 2022, this Court’s motions panel

granted Attorney Gurulé’s motion to consolidate these two appeals with Tyson’s appeal.

Thereafter, in February 2023, Attorney Gurulé initiated an appeal for Reginald Dillard (“Dillard”), a fourth

post-conviction petitioner who is appealing the post-conviction court’s denial of his change of judge motion.

Dillard’s appeal was originally filed under Cause Number 23A-PC-261. The following month, March 2023,

this Court’s motions panel granted Attorney Gurulé’s motion to consolidate Dillard’s appeal into Tyson’s

appeal.

However, it is well-established that we have the inherent authority to reconsider a ruling by the motions

panel while an appeal remains pending. Beasley v. State, 192 N.E.3d 1026, 1029 (Ind. Ct. App. 2022), trans.

denied. Here, we have determined that a de-consolidation of these four appeals is necessary. Accordingly, we

have returned each one to its original appellate cause number and will decide each appeal on its own merits.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 3 of 34

Facts

[3] In May 2021, Tyson, represented by Attorneys Gurulé and Slosar, filed a 117-

page amended petition for post-conviction relief. In the introduction section of

his amended petition, Tyson argued as follows:

An epidemic exists in Elkhart, Indiana where innocent people are

wrongfully convicted as a result of police misconduct, false and

fabricated testimony, and the widespread failure to disclose

material exculpatory evidence. Tragically, these unjust

convictions often take decades to unravel, leaving innocent men

and women to languish in prison for crimes they did not

commit[.] The wrongful conviction of Petitioner, Leon Tyson,

bears many of the common characteristics of Elkhart’s other

known wrongful conviction cases: police misconduct; the

fabrication of evidence; eyewitness misidentification; and the

withholding of material exculpatory evidence. The newly

discovered evidence discussed below demonstrates that Leon

Tyson is wrongfully convicted, entitled to a new trial, and

deserves to be Elkhart’s next exoneree.

(App. Vol. 2 at 33-34) (emphasis in the original).

[4] Further, in this petition, Tyson argued that he was entitled to post-conviction

relief because:

(1) he [was] actually innocent, and ha[d] located new evidence

materially relevant to his innocence that he could not with

reasonable diligence have discovered and produced at trial [“(the

first post-conviction claim)”]; (2) he ha[d] new evidence

demonstrating misconduct by Elkhart police officers under Brady

v. Maryland, 373 U.S. 83 (1963), materially affecting his

substantial rights [(“the second post-conviction claim”)]; and (3)

he [had] received ineffective assistance of counsel in violation of

Strickland v. Washington, 466 U.S. 668 (1984) and Martinez v.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 4 of 34

Ryan, 566 U.S. 1 (2012) that [fell] below an objective standard of

reasonableness and prejudiced Mr. Tyson in a significant way

[(“the third post-conviction claim”)].

(App. Vol. 2 at 118) (footnote omitted). According to Tyson, “[e]ach ground

provide[d] an independent basis for [the post-conviction court] to grant [Tyson]

a new trial.” (App. Vol. 2 at 118).

[5] Also, in May 2021, Tyson filed a motion for a change of judge pursuant to

Indiana Post-Conviction Rule 1(4)(b). Tyson specifically argued that the post-

conviction court should grant his motion because the post-conviction court had

been a deputy prosecutor in the Elkhart County Prosecutor’s Office from 1998

until 2002 (“the first recusal claim”). According to Tyson, “[b]ased upon this

Court’s prior employment at the Elkhart County Prosecutor’s Office – during

the period of time that [Tyson] w[ould] present evidence of systemic

prosecutorial and police misconduct – there [was] a reasonable question as to

whether this Court c[ould] be impartial in determining whether police or

prosecutorial misconduct resulted in Mr. Tyson’s wrongful conviction.” (App.

Vol. 2 at 148).

[6] Tyson further argued that the post-conviction court should grant his motion for

a change of judge because the post-conviction court’s order in a prior unrelated

case involving Andrew Royer (“Royer”) had shown that the post-conviction

court had “formed an opinion on the merits of [Royer’s] pending claims

without hearing evidence.” (App. Vol. 2 at 152). Therefore, according to

Tyson, “[t]he same logic [held] true here, where . . . Tyson argues that the same

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 5 of 34

systemic failures caused his wrongful conviction.” (App. Vol. 2 at 152). Tyson

further argued that because the post-conviction court had ultimately granted

Royer’s motion for a change of judge, the post-conviction court should grant

Tyson’s motion for a change of judge as well.

[7] At this point, for a better understanding of Tyson’s argument and the post-

conviction court’s response to this argument in its order denying Tyson’s

motion for a change of judge, we find it helpful to review the facts and history

of Royer’s case. A jury convicted Royer of murdering Helen Sailor (“Sailor”)

in 2005. In 2006, this Court affirmed Royer’s conviction. Royer v. State, No.

20A03-0601-CR-14, 2006 WL 1634766 (Ind. Ct. App. May 31, 2006). In 2007,

Royer filed a petition for post-conviction relief, which the post-conviction court

denied after a hearing. This Court affirmed the denial. Royer v. State, No.

20A04-1106-PC-325, 2011 WL 6595351 (Ind. Ct. App. Dec. 20, 2011).

[8] A few years later, in June 2013, Royer, represented by Attorney Slosar, filed a

motion for relief from judgment pursuant to Indiana Trial Rule 60(B).

Immediately after filing this motion, Attorney Slosar and Royer’s family

members gathered in front of the prosecutor’s office for a press conference.

During the press conference, Attorney Slosar stated there was a “‘systemic

failure’ and an ‘epidemic’ in Elkhart County where people [were] wrongfully

convicted because of police corruption, uninspiring defense counsel and an

overzealous prosecutor.” (App. Vol. 3 at 57). Attorney Slosar also stated that

“these factors contributed to Andrew Royer being convicted of a murder that he

is absolutely innocent of.” (App. Vol. 3 at 57). In addition, Attorney Slosar

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 6 of 34

stated that “we have proven that [Royer’s] conviction was an absolute fraud

and the conviction was based on intentional misconduct.” (App. Vol. 3 at 57).

Attorney Slosar further referred to the pending Trial Rule 60(B) motion as an

appeal and released videotapes of witnesses that would be testifying at the

hearing on Royer’s motion.

[9] Following the press conference, the State filed a motion for an emergency

hearing and a request for an injunction. In support of its motion, the State

attached two newspaper articles from the South Bend Tribune. The headline

for one of the articles, which is dated June 13, 2018, is “Mentally disabled man

says shoddy policing, false statements led to Elkhart murder conviction.” (No.

20D03-0309-MR-155, Chronological Case Summary, June 19, 2018 entry).

The headline for the other article, which is dated June 14, 2018, is “Attorney of

Andrew Royer blasts Elkhart police for ‘miscarriage of justice.’” (No. 20D03-

0309-MR-155, Chronological Case Summary, June 19, 2018 entry). Royer filed

a response to the State’s motion. Following a hearing, the trial court judge in

Royer’s case, who is the post-conviction court judge in Tyson’s case, issued an

order that provides, in relevant part, as follows:

9. Additionally, Slosar contends that he made no statements

that violate Ind. Professional Conduct Rule 3.6, as only

information contained in the public record was stated at

the press conference, along with matters he has a

constitutional right to say on behalf of Royer. The Court

carefully reviewed the State’s Motion, as well as Royer’s

Response, along with the various attachments referencing

news articles about the conference. Particularly troubling

to the Court were Slosar’s statements at the subject press

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 7 of 34

conference characterizing “‘systemic failure’ and an

‘epidemic’ in Elkhart County where people are wrongfully

convicted because of police corruption, uninspiring

defense counsel and an overzealous prosecutor.” Slosar

went on to say that “these factors contributed to Andrew

Royer being wrongfully convicted of a murder that he is

absolutely innocent of.” Slosar also stated that “we have

proven that his conviction was an absolute fraud and the

conviction was based on intentional misconduct.”

Additionally, videos of proposed witnesses were released

and Slosar inaccurately referred to the pending Trial Rule

60(B) Motion filed in this Court as an “appeal.”

10. The Indiana Supreme Court in In re: Litz[,] 721 N.E.2d 258

(Ind. 1999) addressed behavior such as [Slosar’s] and held

that Litz’s publication of a letter in several local newspapers

which state[d] his client committed no crime, criticized the

prosecutor’s decision to retry the case, and mentioned his

client had passed a lie detector test constituted a violation

of Ind. Professional Conduct Rule 3.6(a).[5]

11. In sum, Slosar’s comments and statements are beyond the

scope of the exceptions stated in Ind. Professional Conduct

Rule 3.6(b) as to what a lawyer who is participating in

litigation of a matter may state.[6] The statements are highly

5

Indiana Rule of Professional Conduct 3.6(a) provides as follows:

A lawyer who is participating or has participated in the investigation or litigation of a

matter shall not make an extrajudicial statement that the lawyer knows or reasonably

should know will be disseminated by means of public communication and will have a

substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

6

Indiana Rule of Professional Conduct 3.6(b) provides as follows:

Notwithstanding paragraph (a), a lawyer may state:

(1) the claim, offense or defense involved and, except when prohibited by law, the

identity of the persons involved;

(2) information contained in the public record;

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 8 of 34

inflammatory, defamatory, inaccurately state the law as it

exists at this time with respect to Royer’s conviction, and

draw legal conclusions about matters not yet adjudicated.

Slosar’s actions go beyond simply summarizing evidence

that is a matter of public record. Further, any alleged “new

evidence” must be heard in accordance with the judicial

process before any legal conclusions may be reached.

Essentially, the extrajudicial statements made by Slosar at

the public press conference, and which were reported in the

media, do exactly what the Rule prohibits - forming public

opinion that has a substantial likelihood of materially

prejudicing the adjudicative proceedings pending in this

Court.

* * * * *

13. Here, the Court finds that the statements Slosar made at

the public press conference held on June 13, 2018, violated

Ind. Rule of Professional Conduct 3.6(a) in that they were

extrajudicial statements that Slosar knew or reasonably

should have known would be disseminated by means of

public communication and would have a substantial

likelihood of prejudicing the adjudicative proceeding that

is pending in this matter, specifically, his Trial Rule 60(B)

Motion.

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is

reason to believe that there exists the likelihood of substantial harm to an

individual or to the public interest; and

(7) in a criminal case, in addition to subparagraphs (1) through (6):

(i) identity, residence, occupation and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid

in apprehension of that person;

(iii) the fact, time and place of arrest; and

(iv) the identity of investigating and arresting officers or agencies and the

length of the investigation.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 9 of 34

14. While the Court clearly recognizes Slosar’s First

Amendment right to free expression, as noted by the

Indiana Supreme Court in the Commentary to Ind.

Professional Rule of Conduct 3.6,[7] that right must be

balanced with the right to fair and impartial legal

proceedings, which may entail some restriction of the

information that may be disseminated about a party prior

to and during those proceedings. Ind. Professional Rule of

Conduct 3.6 does not curtail free speech except to the

extent necessary to protect the corresponding right to fair

proceedings. This is the basis upon [which] the Court is

acting.

15. For all these reasons, Slosar is hereby enjoined from

making extrajudicial commentary and statements to the

extent explained in Ind. Professional Rule of Conduct 3.6

on the matter that is pending before this court. Failure to

comply with this Order will be deemed willful failure to

comply with Ind. Professional Conduct Rule 3.6 and is

subject to appropriate sanctions.

7

The commentary to Indiana Rule of Professional Conduct 3.6 provides, in relevant part, as follows:

It is difficult to strike a balance between protecting the right to a fair trial and

safeguarding the right of free expression. Preserving the right to a fair trial necessarily

entails some curtailment of the information that may be disseminated about a party prior

to trial, particularly where trial by jury is involved. If there were no such limits, the result

would be the practical nullification of the protective effect of the rules of forensic

decorum and the exclusionary rules of evidence. On the other hand, there are vital

societal interests served by the free dissemination of information about events having

legal consequences and about legal proceedings themselves. The public has a right to

know about threats to its safety and measures aimed at assuring its security. It also has a

legitimate interest in the conduct of judicial proceedings, particularly in matters of general

public concern. Furthermore, the subject matter of legal proceedings is often of direct

significance in debate and deliberation over questions of public policy.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 10 of 34

(App. Vol. 3 at 56-59). Also, in the order, the trial court noted that Attorney

Slosar had argued that Indiana Rule of Professional Conduct 3.6 had not

applied to this case because no trial had been pending. The trial court

responded that it disagreed with Attorney Slosar’s over[-]simplification of the

intent of the rule and found that “the clear and express language of paragraph

(a) is that dissemination of extrajudicial statements that will have a likelihood of

materially prejudicing an adjudicative proceeding (Emphasis added) is

prohibited. Indeed, that language, as well as “legal proceedings” is used

throughout the Rule, the Commentary, and in case law.” (App. Vol. 3 at 56).

[10] In August 2018, Royer filed a motion to withdraw, without prejudice, his Trial

Rule 60(B) motion, which the trial court granted. In May 2019, Royer filed a

motion for permission to file a successive petition for post-conviction relief,

which this Court granted. Royer then filed a successive petition for post-

conviction relief and a motion for change of judge. The post-conviction court

judge, who had issued the order finding that Attorney Slosar had violated

Indiana Rule of Professional Conduct 3.6(a), granted Royer’s motion for a

change of judge.

[11] Royer’s case was subsequently assigned to Kosciusko Superior Court Judge Joe

V. Sutton (“Judge Sutton”), who held a four-day hearing on Royer’s successive

petition for post-conviction relief in October and November 2019. Following

the hearing, Judge Sutton issued a fifty-five-page order granting Royer’s

successive petition for post-conviction relief and vacating Royer’s murder

conviction based on newly discovered evidence and Brady violations.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 11 of 34

[12] Judge Sutton specifically found newly discovered evidence that Elkhart County

Forensic Specialist Dennis Chapman (“Forensic Specialist Chapman”) had not

been qualified to conduct the latent fingerprint comparisons that he had made

in Royer’s case.8 Judge Sutton noted that then-Elkhart County Chief Deputy

Prosecutor Vicki Becker (“Deputy Prosecutor Becker”)9 had been responsible

for meeting with Forensic Specialist Chapman and preparing him to testify.

However, Judge Sutton found that Deputy Prosecutor Becker had not been

provided with Forensic Specialist Chapman’s resume and had not been told

that he was not qualified to conduct comparisons of latent prints. Judge Sutton

further found that Forensic Specialist Chapman had “misled [Deputy

Prosecutor] Becker into believing that he was qualified to conduct the type of

latent print comparisons that [had] exist[ed]” in the case. (App. Vol. 3 at 69).

Judge Sutton also found a Brady violation because Forensic Specialist

Chapman’s lack of qualifications had not been disclosed to the defense.

[13] Judge Sutton further found newly discovered evidence that Detective Carl

Conway (‘Detective Conway”), the lead investigator in the Sailor homicide had

been removed from the homicide unit before Royer’s trial. The reason for

Detective Conway’s removal was a misrepresentation that he had made to an

8

In 2012, the Elkhart County Sheriff’s Department disciplined Forensic Specialist Chapman for his role in

Royer’s case. Forensic Specialist Champman retired in 2013.

9

Vicki Becker is currently the elected Elkhart County Prosecutor.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 12 of 34

attorney regarding one of the attorney’s clients.10 Based upon this

misrepresentation, Detective Conway’s supervisors had concerns about the

impact that his misrepresentations would have on future homicide

investigations and his credibility at trials if called to testify. However, Detective

Conway’s removal from the homicide unit had not been disclosed to Royer

before trial. Judge Sutton further found a Brady violation because the Elkhart

Police Department had not disclosed Detective Conway’s removal to the

defense.

[14] In addition, Judge Sutton found newly discovered evidence that Detective

Conway had threatened a critical witness in Royer’s case and promised her

$2,000 to falsely testify against Royer at trial. Judge Sutton further found that

the witness’ recantation of her trial testimony at the post-conviction hearing and

her explanation for how her statement had been crafted were both credible. In

addition, Judge Sutton found a Brady violation because the coercion of the

witness and the fabrication of her testimony had not been disclosed to the

defense.

10

Judge Sutton further explained that Detective Conway’s appeal of his removal from the homicide unit had

been summarily denied. In addition, Detective Conway had later been removed from the sex-crimes unit.

According to Judge Sutton, during that removal process, Detective Conway had “made a complaint to

[Deputy Prosecutor Becker]. A disciplinary proceeding ensued that resulted in an agreement between

[Detective] Conway and the Elkhart Police Department. As part of that agreement, the Elkhart Police

Department agreed to withdraw any allegations alleging or suggesting that ‘he caused the Office of the

Prosecuting Attorney to lose faith in the Elkhart Police Department or to question its ability to supervise its

detectives, investigate sex crimes or to perform any other form of police activities.’ In exchange, Detective

Conway accepted a written reprimand.” (App. Vol. 3 at 83-84 n.7).

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 13 of 34

[15] Judge Sutton further found newly discovered evidence that Royer’s two audio-

recorded statements obtained on September 3 and September 4, 2003, which

totaled approximately sixty-one minutes, were unreliable and involuntary.

Judge Sutton specifically noted that Detective Conway had interrogated Royer

for approximately seven and one-half hours and that there was newly

discovered evidence that Detective Conway had a reputation for obtaining

confessions from every suspect that he had interrogated while assigned to the

homicide unit. In addition, Judge Sutton found newly discovered evidence that

Detective Conway’s ability to obtain confessions had not been a direct result of

his internal interrogation training at the Elkhart Police Department. Judge

Sutton further found newly discovered evidence that the Elkhart Police

Department had not provided Detective Conway with any meaningful training

on how to conduct interrogations, including how to interrogate a suspect such

as Royer, who suffered from a mental disability. Judge Sutton also found that

although Detective Conway had been aware of Royer’s mental disability,

Detective Conway did not use any protections to safeguard against the

possibility of Royer giving false and unreliable statements. Judge Sutton

specifically pointed out that although another member of the homicide unit had

told Detective Conway that the Elkhart Housing Authority had documentation

revealing that Royer was severely disabled and had the mind of a child, Royer

had not been permitted to have a lawyer, counselor, or family members present

for his interrogations on September 3 and 4.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 14 of 34

[16] In addition, Judge Sutton found newly discovered evidence that Royer had not

knowingly and voluntarily waived his Miranda rights because Detective

Conway had not properly taken the time to advise Royer of these rights. Judge

Sutton also found newly discovered evidence that Detective Conway had

“repeatedly provided information about the homicide to Mr. Royer throughout

the unrecorded two-day interrogation sessions.” (App. Vol. 3 at 101). In

addition, Judge Sutton found newly discovered evidence that although

Detective Conway revealed at the successive post-conviction hearing that

Royer’s “mental well-being [had] broke[n] down[]” during the interrogations,

Detective Conway had taken Royer’s recorded statement and placed him under

arrest. (App. Vol. 3 at 103). Royer had been “in such a state of confusion that

Detective Conway had to remind him that he [had given] a confession and was

under arrest.” (App. Vol. 3 at 103).

[17] Judge Sutton also found newly discovered evidence that the Elkhart Police

Department’s investigation into Royer’s statements corroborated their

unreliability. (App. Vol. 3 at 104). Specifically, Detective Conway

acknowledged that he was only able to corroborate the following two basic

pieces of information from all of Royer’s statements: (1) Royer knew the other

person who had been charged with killing Sailor; and (2) Royer lived in the

same building as Sailor. Further, many of the details in Royer’s recorded

statements conflicted with the physical evidence.

[18] Based on these extensive findings, including newly discovered evidence and

Brady violations, Judge Sutton vacated Royer’s murder conviction after

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 15 of 34

concluding that he was entitled to a new trial. We note that although Judge

Sutton found several Brady violations, Judge Sutton’s order does not specifically

state that Deputy Prosecutor Becker or any other prosecutor had known about

Detective Conway’s misconduct or had purposely withheld evidence from the

defense.11

[19] On appeal, we affirmed Judge Sutton’s grant of Royer’s successive petition for

post-conviction relief and vacation of Royer’s murder conviction. Royer, 166

N.E.3d at 380. We specifically highlighted instances of Detective Conway’s

misconduct and concluded that Royer had not received a fair trial. Like Judge

Sutton, we did not state that Deputy Prosecutor Becker or any other prosecutor

had known about Detective Conway’s misconduct or had purposely withheld

evidence from the defense.

[20] We now return to the facts in Tyson’s appeal. In June 2021, Tyson filed a

supplement to his motion for a change of judge, wherein he advised the post-

conviction court that he had recently filed a 267-page petition for post-

conviction relief on behalf of “another victim of the Elkhart epidemic[.]” (App.

Vol. 3 at 207). The State subsequently filed a response to Tyson’s initial motion

for a change of judge. Also, in June 2021, the post-conviction court held a

hearing on Tyson’s motion for a change of judge. In September 2021, the post-

11

“For Brady purposes, the prosecutor is charged with knowledge of information known by the police even if

the prosecutor herself is unaware of the information.” Royer, 166 N.E.3d at 400.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 16 of 34

conviction court issued a ten-page order denying Tyson’s motion for a change

of judge. This order provides, in relevant part, as follows:

20. In the instant case, [Tyson’s] conclusory allegation that

this Court cannot be impartial in considering [his] post

conviction allegations of police and prosecutorial

misconduct simply because the presiding Judge worked as

a Deputy Prosecutor over twenty (20) years ago does not

support a finding of bias. The facts attendant to the instant

case occurred in 2015, thirteen (13) years after the end of

the presiding Judge’s tenure as a Deputy Prosecutor.

Moreover, even if this Judge may have once worked

alongside current elected Prosecutor Vickie Becker is of no

consequence. There is no evidence that any special,

enduring or extrajudicial relationship exists between Ms.

Becker and the Honorable Judge. Finally, [Tyson]’s

contention that this Court’s impartiality is questionable

based on this Judges’ theoretical relationships with law

enforcement personnel in general twenty (20) years ago,

does not taint the Court’s ability to determine credibility.

[Tyson]’s claim in this regard is not supported by any

corroborative detail or examples, and is based purely on

speculation.

21. [Tyson] also alleges that this Court’s findings in the case

of State v. Andrew Royer in Cause No. 20D03-0309-MR-

0155, regarding the conduct of attorney Elliot Slosar, one

of [Tyson]’s counsel, and the ultimate entry of an

injunction against Mr. Slosar, calls into question the ability

of the presiding Judge to remain unbiased and impartial in

the instant case. Specifically, [Tyson] complains that

because this Court previously found comments and

allegations made by Mr. Slosar to be “defamatory,” the

Court formed opinions on the merits of Royer’s case.

Therefore, [Tyson] argues that this Judge is duly biased

and unfit to preside over the current post conviction case

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 17 of 34

in which [Tyson] raises similar allegations. However,

[Tyson] misstates the issue addressed by the Court in

Royer by stating that the Court found that the allegations

of “systemic” failure in Elkhart County leading to

wrongful convictions were false; and, that Royer’s counsel

knowingly or recklessly made false statements about the

causes of Royer’s convictions. [Tyson] further averred

that this Court reached these conclusions without hearing

the testimony of a single witness or considering any

evidence in the Royer case.

22. A review of the actual Order entered on July 3, 2018

clearly shows that [Tyson]’s characterization of the

proceedings in Royer is wrong. That matter came on for

hearing on the State’s Motion for Emergency Hearing and

Request for Injunction based on Mr. Slosar holding a press

conference outside the Prosecutor’s Office in downtown

Elkhart, Indiana, during which Mr. Slosar made a number

of comments and allegations about Royer’s then pending

Ind. Trial Rule 60(B) motion. Specifically, at the time the

Court issued its July 3, 2018 Order, the statements made

by Mr. Slosar to the press characterized “‘systemic failure’

and an ‘epidemic’ in Elkhart County where people are

wrongfully convicted because of police corruption,

uninspiring defense counsel and an overzealous

prosecutor.” Slosar went on to say that “these factors

contributed to Andrew Royer being wrongfully convicted

of murder that he is absolutely innocent of.” Slosar also

stated that “we have proven that his conviction was an

absolute fraud based on intentional misconduct.” The

Court found Slosar’s statements to be beyond the scope of

the exceptions stated in Ind. Professional Conduct Rule

3.6(b), as well as inflammatory and defamatory as they

inaccurately stated the law as it existed at that time with

respect to Royer’s conviction, and inappropriately drew

legal conclusions about matters that had not yet been

adjudicated. (Court’s July 3, 2018 Order).

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 18 of 34

23. To the contrary, the Court carefully reviewed the Motion

before it and Royer’s Response, along with numerous

attachments; therefore, the Court did consider evidence

and testimony relevant to the Motion before it. Royer’s

60(B) Motion was not before the Court; the State’s Motion

for an Emergency Injunction was. Royer’s 60(B) Motion

was pending, and as established by the case history in

FN l above, nothing had been proven, and there was no

ruling on the merits of that Motion; therefore, Mr. Slosar’s

statements to the public and media were blatantly

inappropriate and false. In his Motion for Recusal,

[Tyson] is attempting to frame the issues addressed in

the Court’s July 3, 2018 Order in the Royer case nearly

three (3) years ago to serve his own purpose in the instant

case. However, the facts surrounding the Court’s finding

and entry of an injunction in the Royer case are in no way

present, relevant or even similar to the instant case and

that argument is without merit.

24. [Tyson]’s attempts to cite Andrew Royer’s subsequent

successful post conviction action decided in 2021 as

evidence that counsel’s statements in 2018 were true and

an absolute defense to the Judge’s characterization of

attorney Slosar’s comments as defamatory also fail.

Although [Tyson] is correct that Andrew Royer

ultimately prevailed on his post conviction action, that fact

was not established when this Court ruled in the 2018

injunction matter and that case has absolutely no bearing

on the instant case. Relying on the Court’s previous ruling

as evidence of personal bias on the part of the presiding

Judge is misplaced as doing so erroneously treats the

Court’s finding that counsel violated Ind. Rule of

Professional Conduct 3.6(a) as pertaining to substantive

issues in Royer’s post conviction case. Clearly, the Court’s

Order of July 3, 2018 does not support a rational inference of

personal bias toward [Petitioner] Leon Tyson. The injunction

in the Royer case was issued on a very narrow set of

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 19 of 34

circumstances, and the impetus behind the Order was to

prevent conclusions from being reached prematurely

without a full adjudication on the evidence, to ensure the

integrity of the litigation and to circumscribe maneuvers

that might prejudice the pending adjudicative proceedings.

It cannot be said that an objective person with knowledge

of those circumstances would doubt the impartiality of the

judge in the instant case.

25. Andrew Royer’s success in his post conviction case also

has no bearing on the instant case simply because

[Tyson] is again claiming the same alleged “systemic

failure.” There is no factual connection between Royer

and the instant case at all, let alone a connection

warranting recusal of the presiding Judge. In fact, Royer’s

success on his individual post conviction petition does not

unequivocally demonstrate the presence of what

[Tyson] frames as “systemic” misconduct in Elkhart

County. Rather, the Indiana Court of Appeals in State v.

Royer, 166 N.E.3d 380 (Ind. Ct. App. 2021) addressed

misconduct regarding the behaviors of one detective

insofar as Royer’s case. Id at 404, n. 20.

26. [Tyson] further suggests that simply because this Court

ultimately recused in the post conviction case involving

Andrew Royer, it must reach the same conclusion here.

While the Court nonetheless did recuse itself from hearing

Royer’s post conviction case on the merits in order to cure

any lingering concerns in that case, that ruling does not

dictate how the Court must handle future post conviction

cases, including this one.

* * * * *

28. For all the herein stated reasons, this Court concludes that

[Tyson] has not met his burden of overcoming the

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 20 of 34

presumption that this Judge is unbiased and unprejudiced

with respect to [Tyson]’s pending post conviction

proceeding.

(App. Vol. 4 at 6-11) (emphasis added).

[21] Three weeks later, Tyson filed a motion for reconsideration, wherein he argued

that the post-conviction court’s “appalling misreading of the Royer case

show[ed] its inability to impartially consider [Tyson]’s claims[]” and that the

post-conviction court’s “claim that Royer ha[d] ‘absolutely no bearing’ on this

case [was] baseless.” (App. Vol. 4 at 16, 18). In October 2021, the post-

conviction court denied Tyson’s motion for reconsideration.

[22] In December 2021, the post-conviction court certified its order for interlocutory

appeal. In its certification order, the post-conviction court stated as follows:

As to [Tyson]’s allegation that the Orders he requests this Court

to certify involve substantial questions of law, [Tyson] most

disrespectfully avers that this Court has “ignored a clear

obligation to recuse, misapplied the governing law, and failed to

address several of Mr. Tyson’s arguments.” To the contrary, the

Court’s Order denying [Tyson’s] Motion for Recusal is a very

detailed ten (10) page Order in which the Court took great care to

research and address each of [Tyson]’s arguments. The Court

believes that it did appropriately apply well-settled law regarding

recusal in determining that recusal in the instant case is not

warranted. In this regard, it is the opinion of this Court that no

substantial question of law exists.

Notwithstanding the foregoing, the Court believes that

substantial questions of law do exist as to the appropriateness of

[Tyson] repeatedly raising and relying on matters outside this

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 21 of 34

case, whether [Tyson] has incorrectly interpreted and applied

previous Orders issued by this Court in an unrelated case, and

whether [Tyson] had drawn conclusions not based on evidence in

this case in support of his position that this Court harbors bias

and prejudice against him; and, therefore, is unable to render an

impartial decision in his post conviction proceedings. With

respect to these matters, the Court finds that early resolution

would promote a more orderly disposition of the case and

promote judicial economy and resources. While this appeal will

by no means resolve the pending post-conviction litigation, it will

resolve the important threshold issue of judicial recusal before the

case proceeds on the merits.

(No. 20D03-1807-PC-37, Chronological Case Summary, December 27, 2021

entry). In February 2022, this Court accepted jurisdiction over Tyson’s

interlocutory appeal.

[23] One month later, in March 2022, Tyson filed in this Court a verified motion

pursuant to Indiana Appellate Rule 37 to stay the appeal and remand the case

to the post-conviction court. In his motion, Tyson claimed that he had newly

discovered evidence, which revealed that the post-conviction court had been

married from 1992 until 2003 to Stephen Cappelletti (“Cappelletti”), who had

been an Elkhart Police Department reserve police officer from 1983 through

1994. Tyson advised this Court that he planned to file a renewed motion for a

change of judge based on this newly discovered evidence. In April 2022, this

Court granted Tyson’s motion to stay and remand. In our order, we stated that

“[w]ithin thirty-five (35) days of the date of this order, the [post-conviction]

court is ordered to hold a hearing, if necessary” and issue a ruling on Tyson’s

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 22 of 34

renewed motion for a change of judge. (No. 22A-PC-143, Chronological Case

Summary, April 4, 2022 entry).

[24] In April 2022, Tyson filed, in the post-conviction court, a renewed motion for a

change of judge pursuant to Indiana Post-Conviction Rule 1(4)(b). In his

twenty-four-page motion, Tyson argued that this Court had “ordered [the post-

conviction] court to reconsider its obligation to recuse in light of this new

evidence.” (App. Vol. 6 at 74). Tyson also argued that an evidentiary hearing

was necessary [because] . . . [the post-conviction court]’s failure to disclose its

marriage to Mr. Cappelletti raise[d] significant questions as to whether this

[post-conviction] Court ha[d] failed to disclose other information relevant to

recusal[.]” (App. Vol. 6 at 75). Tyson further argued that the post-conviction

court had a “clear obligation” to disclose its prior marriage to Mr. Cappelletti to

Mr. Tyson and that “[r]ecusal [was] necessary because [the post-conviction]

Court’s marriage to Mr. Cappelletti – and his involvement in police misconduct

– place[d] this Court’s orders in a far more disturbing light.” (App. Vol. 6 at 90,

91).

[25] The State filed a reply to Tyson’s renewed motion for a change of judge. The

post-conviction court initially scheduled a May 2022 hearing for Tyson’s

renewed change of judge motion. However, at the end of April 2022, the post-

conviction court entered an order denying Tyson’s motion without a hearing.

In this order, the post-conviction court explained that after having thoroughly

reviewed the record in the case, the post-conviction court had determined that

an evidentiary hearing was “not only unnecessary, but also was not mandated.”

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 23 of 34

(No. 20D03-1807-PC-37, Chronological Case Summary, April 29, 2022 entry).

The post-conviction court specifically explained, in relevant part, as follows:

The Court of Appeals directed this Court to hold a hearing, if

necessary, and issue a ruling on Appellant’s Renewed Motion

for Recusal. (Emphasis added). Just as counsel for [Tyson] has

previously and consistently drawn legal conclusions and

misinterpreted this Court’s orders, counsel once again ‘puts

words in the mouth’ of the Indiana Court of Appeals that are not

there, to-wit: [Tyson], by counsel informed this Court in his

Renewed Motion that a hearing was necessary, which is not

Tyson’s call at all. Then, after the Court accommodated counsel

by setting a one-hour hearing for relevant argument only in this

case as well as in Seabolt v. State, Cause No. 20D03-2106-PC-

000019, counsel informed the Court that the Indiana Court of

Appeals meant to say in its Order . . . that an evidentiary hearing

was mandated[.]

The specifically stated purpose of the remand in this case was for

this Court to consider and issue a ruling on [Tyson]’s Renewed

Motion for Recusal, not to reconsider its prior rulings[.]

Moreover, nowhere in the Court of Appeals Order remanding

this cause is this Court directed to reconsider its ‘obligation to

recuse’ as suggested by [Tyson]. The Court’s ruling at this time is

strictly limited to the alleged “newly discovered evidence” in

[Tyson]’s Renewed Motion for Recusal. The Court’s prior Order

of September 8, 2021 denying [Tyson]’s Motion to Recuse and

October 4, 2021 Order denying [Tyson]’s Motion to Reconsider

are affirmed and incorporated in their entirety herein.

(No. 20D03-1807-PC-37, Chronological Case Summary, April 29, 2022 entry).

(emphasis in the original).

[26] Regarding the substance of Tyson’s renewed recusal motion, the post-

conviction court stated as follows:

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 24 of 34

In his Renewed Motion for Recusal, [Tyson] alleges that this

Court must recuse in the pending post conviction case because

the Judge was married to an Elkhart Police Department reserve

officer, Stephen Cappelletti (“Cappelletti”), from June 6, 1992

through April 15, 2003, and that Cappelletti had close ties to a

group of officers who framed [Tyson] and was involved in police

misconduct similar to that alleged in [Tyson]’s Post Conviction

Relief Petition. Cappelletti was with the Elkhart Police

Department part time from 1983-1994; therefore, during most of

that time, this Judge was not married to him. Also, any direct

allegation of misconduct by Cappelletti as espoused by Tyson in

his Renewed Motion allegedly occurred in 1989, prior to the

marriage. Cappelletti did not work at the Elkhart Police

Department at any time when an investigation would have

ensued in [Tyson]’s case. Cappelletti’s employment with the

Elkhart Police Department ended in 1994. Tyson was charged

with the offense of Murder on December 7, 2015, and was

convicted on January 26, 2017. That Cappelletti was involved in

any investigation of [Tyson]’s case between 1994 and 2003 and

would have shared information with this Court about a murder

that did not occur until June 20, 2015 is not only incredulous, but

impossible. Moreover, this Judge had been divorced from

Cappelletti for over twelve (12) years when [Tyson] was charged

and had no contact with him thereafter. Further, to suggest that

any of the activities or attitudes [Tyson] avers Cappelletti and/or

his associates engaged in or believed somehow means that this

Court must also condone such activities and harbor such beliefs

based on the marriage many years earlier is entirely without

merit. Even if Cappelletti remained friends with former Elkhart

Police Officers, that does not implicate this Court. Contrary to

[Tyson]’s contention, the Judge’s former marriage does not

provide “corroborative detail” that this Court cannot impartially

assess the credibility of witnesses who may be associated with

police officers in general and their alleged misconduct.

Moreover, [Tyson] has failed to demonstrate how this Court’s ex-

husband bears any nexus to [Tyson]’s post-conviction matter.

Other than a shared employment status many years ago with

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 25 of 34

individuals accused of wrongdoing who may or may not testify

in this case, there is no connection at all. [Tyson] has not shown

that this Judge was witness to or adheres to anything that would

compr[om]ise his post conviction case[.]

In the instant case, there is no evidence that this Court’s former

marriage to an Elkhart Police Department reserve officer in any

way ever swayed the Judge’s decision making or does so today

nineteen (19) years post-divorce. Cappelletti stopped working for

the Elkhart Police Department in 1994, twenty-one (21) years

prior to [Tyson]’s offense. It is unlikely that Cappelletti himself

obtained any information about [Tyson]’s case, let alone

imparted such knowledge to this Court. This Judge has no

knowledge derived from extrajudicial sources stemming from her

marital relationship with Cappelletti about [Tyson]’s case that

could demonstrate personal prejudice or bias against [Tyson] in

this post conviction proceeding. [Tyson] has failed to draw any

valid connection between his case, Cappelletti and this Court

other than self serving commentary that Cappelletti may be a

critical witness to a pattern and practice of alleged police

misconduct at the Elkhart Police Department. [Tyson], however,

has not articulated any meaningful argument as to how

Cappelletti, a reserve Elkhart Police Department officer until

1994, constitutes a critical witness to [Tyson]’s 2017 conviction.

[Tyson] makes a final claim that this Court had an obligation to

disclose her past marriage to Cappelletti under Rule 2.11 Code of

Judicial Conduct, n.5. Honestly, why it would cross the mind of

the Court to disclose that she was once married to a man who

served as a reserve Elkhart Police Department officer for

approximately two (2) years while they were married and whom

the Court divorced some nineteen (19) years ago is wholly

untenable. This was not information that this Judge should be

expected to believe the parties or their lawyers might reasonably

consider relevant to a motion for disqualification. [Tyson]’s

argument in this regard is not persuasive and recusal is not

required.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 26 of 34

(No. 20D03-1807-PC-37, Chronological Case Summary, April 29, 2022 entry).

Based on the foregoing, the post-conviction court denied Tyson’s renewed

motion for a change of judge. In May 2022, Tyson filed a motion for

reconsideration, which the post-conviction court denied.

[27] Also in May 2022, Tyson filed in this Court a status report regarding the change

of judge proceedings before the post-conviction court, wherein Tyson advised

this Court that he intended to proceed with his interlocutory appeal. Tyson also

asked this Court to consolidate his case with Iris Seabolt v. State, No. 22A-PC-

00208 and Pink Robinson v. State, No.20C01-2012-PC-00041. Tyson argued that

this Court should consolidate the cases “due to a significant overlap in factual

and legal issues.” (No. 22A-PC-143, Chronological Case Summary, May 17,

2022 entry). This Court’s motions panel granted Tyson’s motion to consolidate

the three cases, which, as explained above, we have de-consolidated.

[28] Tyson now appeals the denial of his motion for a change of judge in his post-

conviction case.

Decision

[29] Tyson argues that the post-conviction court clearly erred when it denied his

motion for a change of judge. We disagree.

[30] At the outset, we note that the law is well-settled that “adjudication by an

impartial tribunal is one of the fundamental requirements of due process

imposed on the courts of this state by the Fourteenth Amendment to the federal

constitution.” Matthews v. State, 64 N.E.3d 1250, 1253 (Ind. Ct. App. 2016)

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 27 of 34

(citing Tumey v. Ohio, 273 U.S. 510, 535 (1927)), trans. denied. Judges are

presumed impartial and unbiased. Matthews, 64 N.E.3d at 1253. “‘[T]he law

will not suppose a possibility of bias or favor in a judge, who is already sworn to

administer impartial justice, and whose authority greatly depends upon that

presumption and idea.’” Matthews, 64 N.E.3d at 1253 (quoting 3 William

Blackstone, Commentaries *361)).

[31] In post-conviction cases, parties seeking to overcome the presumption of

judicial impartiality must move for a change of judge under Post-Conviction

Rule 1(4)(b). That rule provides, in relevant part, as follows:

Within ten (10) days of filing a petition for post-conviction relief

under this rule, the petitioner may request a change of judge by

filing an affidavit that the judge has a personal bias or prejudice

against the petitioner. The petitioner’s affidavit shall state the facts

and the reasons for the belief that such bias or prejudice exists,

and shall be accompanied by a certificate from the attorney of

record that the attorney in good faith believes that the historical

facts recited in the affidavit are true. A change of judge shall be

granted if the historical facts cited in the affidavit support a

rational inference of bias or prejudice.

(Emphasis added).

[32] This rule requires the judge to examine the affidavit, treat the historical facts

recited in the affidavit as true, and determine whether these facts support a

rational inference of bias or prejudice. Pruitt v. State, 903 N.E.2d 899, 939 (Ind.

2009). A change of judge is neither automatic nor discretionary but calls for a

legal determination by the post-conviction court. Id. We presume that the post-

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 28 of 34

conviction court is not biased against a party and disqualification is not required

under the rule unless the judge holds a “personal bias or prejudice.” Id.

(quoting P.-C.R. 1(4)(b)). Typically, a bias is personal if it stems from an

extrajudicial source, which means a source separate from the evidence and

argument presented at the proceedings. Pruitt, 903 N.E.2d at 939. “Such bias

or prejudice exists only where there is an undisputed claim or the judge has

expressed an opinion on the merits of the controversy before [her].” L.G. v.

S.L., 88 N.E.3d 1069, 1073 (Ind. 2018).

[33] “Further, Indiana courts credit judges with the ability to remain objective

notwithstanding their having been exposed to information which might tend to

prejudice lay persons.” Id. In addition, “[a] showing of prejudice sufficient to

support a motion for a change of judge must be established from personal,

individual attacks on a defendant’s character, or otherwise.” Miller v. State, 106

N.E.3d 1067, 1076 (Ind. Ct. App. 2018), trans. denied. Stated differently, “a

motion for a change of judge should be granted only if the evidence reveals such

a high degree of favoritism or antagonism as to make a fair judgment

impossible.” State v. Shackleford, 922 N.E.2d 702, 707 (Ind. Ct. App. 2010)

(cleaned up), trans. denied.

[34] 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).

Reversal will require a showing which leaves us with a definite and firm

conviction that a mistake has been made. Id.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 29 of 34

[35] We restate Tyson’s first argument as whether the post-conviction court clearly

erred in denying his motion for change of judge because the post-conviction

court’s 2018 order in the unrelated Royer case finding that Attorney Slosar had

violated Rule of Professional Conduct 3.6(a) supports a rational inference of

bias or prejudice against Tyson.12 “Prior judicial rulings generally do not

support a rational inference of prejudice.” Voss v. State, 856 N.E.2d 1211, 1217

(Ind. 2006). “Adverse rulings and findings by a trial judge from past

proceedings with respect to a particular party are generally not sufficient

reasons to believe the judge has a personal bias or prejudice.” Id. Although the

mere assertion that certain adverse rulings by a judge constitute bias and

prejudice does not establish the requisite showing, there may be circumstances

in which a rational inference of bias or prejudice may be established if a judge’s

order is sufficiently egregious. Id.

[36] Here, however, we find nothing egregious in the July 2018 order that the trial

court judge, who is the post-conviction court judge in Tyson’s case, issued in

12

We note that Tyson asserts that in Royer, 166 N.E.3d at 380, this Court found systemic police and

prosecutorial misconduct in Elkhart. We did not. Specifically, we find no language in our opinion in Royer

to support such an interpretation. Rather, our review of our opinion in Royer reveals that the newly

discovered evidence related primarily to the horrific conduct of one Elkhart Police Department detective.

Tyson also asserts that in its July 2018 order in the Royer case, the post-conviction court found that there was

no systemic police or prosecutorial misconduct in Elkhart. It did not. The post-conviction court’s order in

the Royer case solely addressed the statements that Attorney Slosar made at a press conference after he had

filed in Royer’s case a motion for relief from judgment pursuant to Indiana Trial Rule 60(B). Specifically, the

post-conviction court found that Attorney Slosar’s statements violated Rule of Professional Conduct 3.6(a)

because Attorney Slosar knew or reasonably should have known that these statements would be disseminated

by means of public communication and would have a substantial likelihood of prejudicing the adjudicative

proceeding that was pending in the matter.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 30 of 34

the unrelated Royer case. Rather, the trial court simply concluded that

Attorney Slosar’s press conference statements regarding systemic police

misconduct in Elkhart, which he had made before the adjudication of Royer’s

Trial Rule 60(B) motion, violated Rule of Professional Conduct 3.6(a). Further,

and more importantly, the trial court’s July 2018 order does not mention Tyson

or anything about Tyson’s case, which occurred ten years after Royer’s case. In

sum, we find nothing in the Royer order that supports a rational inference of

bias or prejudice against Tyson.13

[37] We restate Tyson’s second argument as whether the post-conviction court

clearly erred in denying Tyson’s motion for a change of judge because the post-

conviction court’s 1998-2002 tenure as a deputy prosecutor supports a rational

inference of bias or prejudice against Tyson. In Calvert v. State, 498 N.E.2d 105,

107 (Ind. Ct. App. 1986), this Court concluded “that a trial judge must

disqualify [her]self from a proceeding in which [s]he has actively served as an

attorney for one of the parties regardless of whether actual bias or prejudice

exists.” Here, there is no allegation that the post-conviction court judge actively

13

We further note that Tyson’s argument that the post-conviction court should have granted his motion for

a change of judge because it granted the motion for a change of judge in the Royer case is unavailing.

Specifically, the fact that the post-conviction court granted a motion for a change of judge in Royer’s case

“appears to us to evidence the fact that [the post-conviction court judge] would conduct herself as an

unbiased jurist in applying the law to the particular facts of a case.” Smith v. State, 613 N.E.2d 412, 414 (Ind.

1993) (affirming the trial court’s denial of a motion for a change of judge where the petitioner argued that the

adverse publicity that the post-conviction court received as a result of granting an unrelated petition for post-

conviction relief would cause the post-conviction court to be biased against granting post-conviction relief in

petitioner’s case), cert. denied.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 31 of 34

served as a deputy prosecutor on Tyson’s case. Indeed, this would have been

an impossibility because the post-conviction court judge left the prosecutor’s

office in 2002, thirteen years before the State charged Tyson with murder in

2015 and twenty-one years before Tyson’s upcoming hearing on his post-

conviction petition. Given the remoteness in time of the post-conviction court’s

tenure in the Elkhart County Prosecutor’s Office in relation to the charges

against Tyson and his upcoming post-conviction hearing, Tyson has failed to

show the post-conviction court’s 1998-2002 tenure as a deputy prosecutor

supports a rational inference of bias or prejudice against Tyson. See Bloomington

Magazine, Inc. v. Kiang, 961 N.E.2d 61, 66 (Ind. Ct. App. 2012) (explaining that

the proximity in time of the historical facts alleged in the affidavit to the matter

concerning the motion for a change of judge is a relevant inquiry).

[38] Lastly, we restate Tyson’s third argument as whether the post-conviction court

clearly erred in denying Tyson’s motion for a change of judge because the post-

conviction court judge’s 1992-2003 marriage to Cappelletti supports a rational

inference of bias or prejudice against Tyson. We note that the post-conviction

court judge’s marriage to Cappelletti ended ten years before the State charged

Tyson with murder and twenty years before Cappelletti’s potential testimony in

Tyson’s post-conviction case. Tyson’s affidavit does not allege that any

relationship existed between Cappelletti and the post-conviction court judge

after their marriage had been dissolved. Indeed, in her order denying Tyson’s

motion for a change of judge, the post-conviction court judge specifically noted

that she had not had contact with Cappelletti since their marriage had been

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 32 of 34

dissolved in 2003. Given the remoteness in time of the post-conviction court

judge’s marriage to Cappelletti to the charges against Tyson and his upcoming

post-conviction hearing, Tyson has failed to show that this prior marriage

supports a rational inference of bias or prejudice against Tyson. See Bloomington

Magazine, 961 N.E. 2d at 66. See also McKinney v. State, 873 N.E.2d 630, 640

(Ind. Ct. App. 2007) (explaining that where the personal relationship between

the trial court judge and her former employee, who was the murder victim’s

mother, had ended twenty years before the defendant’s trial and the defendant

had not alleged any facts suggesting that any relationship existed between the

two after that employment had been terminated, the trial court did not clearly

err in denying defendant’s motion for a change of judge), trans. denied.

Conclusion

[39] In sum, the recited historical facts on which Tyson based his motion for a

change of judge simply do not support a rational inference of bias or prejudice

against Tyson as contemplated by Post-Conviction Rule 1(4)(b). We further

note that the post-conviction court has neither expressed an opinion on the

merits of Tyson’s case nor attacked his character. Accordingly, because we are

not left with a definite and firm conviction that a mistake has been made, we

conclude that the post-conviction court did not clearly err in denying Tyson’s

motion for a change of judge. See Garland, 788 N.E.2d at 433. We, therefore,

affirm the post-conviction court’s denial of Tyson’s motion. See Pruitt, 903

N.E.2d at 939 (explaining that where Pruitt’s post-conviction court judge was

the same judge who had presided over his trial and where Pruitt’s affidavit in

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 33 of 34

support of his motion for a change of judge had shown no historical facts that

had demonstrated personal bias on the part of the post-conviction court judge,

Pruitt had been provided with a full and fair post-conviction relief hearing

before an impartial judge).

[40] Affirmed.

Crone, J., and Bradford, J., concur.

Court of Appeals of Indiana | Opinion 22A-PC-143| August 11, 2023 Page 34 of 34