*1
JJ., concur;
Hunter, C.J.,
DeBruler,
Jack-
Arterburn
son, J.,
concurs
result.
Reported in
Note. — et al. v.
Robb of Indiana. February 5, petition rehearing 569 S 106. Filed [No. filed.] No *2 Cohen, Gary, appellants. Max for Sendak, Attorney General, Peden,
Theodore L. Deputy Mark Attorney General, appellee. for Appellants pro- tried were and convicted of
Hunter, C.J. gambling fessional in the Criminal Lake Court December 12, 1966, appealed appeal, and to this court. On the conviction committing affirmed but was appel- order imposed by lants under the sentence the Lake Criminal Court was vacated since trial court had pre- failed to conduct a investigation pursuant to Ind. Ann. 9-2252 Stat. § (1969 Supp.). precommitment On remand a subsequent appellants was ordered and again thereto^ were ordered committed.
Appellants appeal in this assert as error the court’s over- ruling their motion disqualify himself, that the trial overruling judgment. of their motion to vacate argument appellants’
The thrust as it relates to their judge, motion that Judge the Honorable McKenna, disqualify himself, prior is that virtue of public his state- ment, preconceived opinion he had formed a judg- as to the impose ment he as to appellants would each of the before the precommitment report even argued ordered. is further judge, fact, that where the preconceived does form a Ann. Ind. Stat. alleged, provisions opinion, as here meaningless ritual. For Supp.) rendered (1969 are 9-2252 § appellants should foregoing it is asserted reasons purposes change of sen- granted have been investiga- tencing upon the submission this court. ordered tion substantially error, assignment of second appellants’ As to assign- first arguments under their advanced as are same thereto, argue appellants In addition ment of error. comply with the for failure to be vacated judgment should (1956 Repl.). 9-2205 Because Ann. Stat. provisions of Ind. § assignments arguments pertinent both of error are sub- together. same, they be considered stantially will change providing Initially, statute for a we note prosecuted appeal provides judge after an has been follows: *3 every appeal Appellate where an to the or Su- “In case
preme judgment of state of Indiana has taken Court the been from a against any party, rendered and such trial, is a and said cause remanded for new or is reversed granting in of a new where the action trial appeal party is affirmed on titled to either in said cause shall be en- change judge a of venue from the before whom notwithstanding any changes pending, said cause is of venue taken, filing stating upon an affidavit theretofore that such party a fair trial can not have of said cause before said prejudice judge, before whom grant part of bias or on judge because said of pending, judge said cause is and said shall change any judge and it shall be unlawful for said so challenged appoint special judge any in to such case as rela- marriage judge.” or of said tive blood Ind. Ann. Stat. (1967 Repl.) 2-1404 § completed appeal prosecuted, has been and an the trial Where legislature quite clearly, pro remand, has on granting change judge upon of a of a for vided trial. new heavily rely of on the Woodsmall v.
Appellants case State
451 (1914), 613, 155, 181 Ind. 105 E. N. contend proposition
case stands for the that an for new order necessary granting change trial is not to of a of judge appeal. however, appear after would clearly distinguishable case is In from at bar. Wood- the case small, supra, judg the defendant of made motion arrest appeal. Upon filing ment which was sustained on of a proper affidavit, change the defendant then filed a motion judge appeal, which was denied. On this court reversed the holding conviction provisions that the 2-1404 of Burns’ made § change judge given mandatory. construction entirely since, statute in proper Woodsmall would seem effect, given charge. defendant was another on the same however, upheld appellants’ guilt Here the conviction was longer Consequently or was no at innocence issue remand. controlling change we hold that 2-1404 not is and a § Clearly, proper. instant would not case be this enlarge statutory not provisions relating authorized change judge, right having the substantive been con legislature. ferred State ex rel. Blood v. Gibson Circuit (1959), 394, (See Court 239 Ind. N. E. 2d however Pollard v. 252 Ind. 2d N. at E. provisions relating change effectively where were enlarged to accommodate requiring the constitutional mandate impartial trial.) defendant be accorded a fair and public prior
As ordering to the statements made to the Judge McKenna, reported Gary Tribune, in the Post fail we to see prejudiced what manner such appellants. statements statute, 9-2252, provides that no defendant con § *4 felony precommitment of a shall be committed a victed before investigation report is submitted to the court. plain appear language would thus from the of the statute that merely legislature investigation precede intended that the Consequently pronounce commitment. could judg- 452 investigation precommitment
ment and sentence before the following judg- both conducted, commitment the order of was sentencing. ment and is above statute under the law decided pertinent case Although has been contended complete it accord. 437, 2d 185 N. E. (1962), Ind. 243 of v. State
case
Smeltzer
investigation must
proposition that
stands for the
holding
sentencing,
clearly
the case.
precede
is not the
sentencing. Any
delay
com
case
issue
was the
Judge
investigation
timing
dicta.
was mere
ment on the
supra,
Achor,
spoke
Smeltzer,
indicated
for the court
who
following language
by
Ware v. from
investigation
precede
Ind.
tory.
with its terms
Failure of the
case,
therefore,
proper
facts of
cause for
under the
made,
The order
with-
to this court.
redress
report,
pre-commitment
must be
out such
vacated.”
(our emphasis)
ment investi- made the court without (our gation emphasis) improvident . .” at was . Ind. opinion in said: Finally, initial this case we in our mandatory. provision Failure is trial “The above therefore, facts, under the comply with its terms this order. The order of com- proper for redress to cause precommitment such made without mitment (our emphasis) 2d 239 N. report must be vacated.” E. at 157. relating
Here, this court was that order vacated having- commitment, been no investi there original gation required statute. The sentence way finding guilt was in no affected nor levied on the required to reconsider such sen- *5 ten.ce. The order of commitment was to be reconsidered how- ever, apparent precommit- and it is from the record that the rendering ment was considered before final the although Therefore, hereby order of commitment. we do not approve public by judge comments made the final before disposition him, of a case before such comments could not prejudiced appellants they allege. have meaningless is not a ritual as appellants. contended information Invaluable may gathered prison be which will aid the and properly committing officials in the convicted felon and assignments in future parole actions work and applications. holding impair Nor will our usefulness the report required may the the statute. be require report prior will in order that However, statutory require various facts be before him. ment is fulfilled prior if the is filed to the order of commitment. argument
Appellants’ final is that failed to comply provisions (1956 with the 9-2205 Ind. Ann. Stat. §
Repl.) requires inquire which the court of the de legal any why fendant whether he has cause to show judgment pronounced upon be should not him. This inquiry precede judgment, perforce is to should have been completed prior to the order of orig commitment. Since our appellants’ inal remand of this case on appeal first was con cerned with order, appellants commitment cannot complain procedural now heard to be omissions prior made order. foregoing reasons, For overruling appellants’ disqualify motion to judgment and motion to vacate are sus- tained and the order of commitment is affirmed.
Commitment order affirmed. Arterburn, Givan, JJ., concur; DeBruler, J., concurs in opinion result with J., with which Jackson, concurs.
Concurring Result given interpretation agree with not do J. I DeBruler, Investigation Statute majority of the Pre-commitment “merely intended Legislature thereby, it holds that where Consequently the investigation precede commitment. pre- before the sentence pronounce judge could conducted, order of com- investigations were *6 following judgment and sentence.” both mitment says: The statute felony a shall be committed convicted “No defendant precommit- by any a written of record before criminal court officer, by investigation probation report, prepared a
ment by sentencing the court. considered presented to is required, investigation precommitment the is Whenever inquire investigation making probation the circumstances of the offense and tigation the into shall officer the such inves- shall make prescribed by probation director of as is the state police department and state of correction. All local agencies probation required the officer shall be to furnish to may request. probation Where such records as the the authority, officer opinion coicrt, investigating sentencing the or the precommitment investigation desirable, is the it may physical the de- and mental examination include any If a defendant is thereafter committed fendant. investigating agency penal and correctional institution the investiga- report precommitment of its a written send shall penal the institution at time of commitment.” tion to the (Emphasis added.) 9-2252. Burns’ § majority mandatory. is There- concedes the statute sentencing judge report. fore, the must consider the point requirement consider the trial court whole of the investigation precommitment report is facts to have the therein trial court’s exercise of discretion contained affect determining imprisonment, or term the amount fine suspended, deciding the sentence should be whether probation. setting If the court does not have realistic terms sentencing, by as report until contended to consider after purpose accomplished. majority, cannot be then
455
My position, namely,
pre-commitment
investigation
report
by
sentencing
must
judge prior
be considered
sentencing
supported by
is
the case of Smeltzer v. 243 Ind.
185
2dE.
N.
In that case the alle
gation of error was as follows:
“Appellant here also asserts for the first time that
that,
committed
immediately
reversible error in
overruling
upon
sentence
trial,
the motion for new
did not
appellant
nor did it fix a date certain for such
sentencing but, instead,
deferred such
pending
precommitment
of written
by a
probation officer.”
This Court held proper that not was it delayed sentencing court to have delay but such manda- tory Investigation under the Statute, Pre-commitment saying: appellant, postponement “As conceded of sentence mandatory 264, 2, was made under Acts p. ch. § 9-2252, Supp.], Burns’ Cum. such until time ‘a [§ report,
written
prepared
probation officer,
presented
to and considered
sen-
*7
tencing
temporary
mandatory
court.
. . .’
delay
and
purpose
for
such
for
was
a limited time
purpose
justice
and
and was such as ‘the
interest
de-
shown,’
mands’ and is ‘for cause
...”
This Court first opinion the that 154. In N. 2d E. al. v. State allegation following error: considered the Court having argue in not “Appellants that the trial erred imposing investigation report sen- before tence." ground ordered that trial court reversed the
The Court as follows: Criminal therefore, to the Lake is, remanded cause “The judgment and to vacate thereof for the Court order of proceed cause in the thereupon to opinion.” this consistent with manner mandatory requirement
Therefore, upon the based interpreta- upon the sentencing judge report and consider Smeltzer, given Ware Robb and first tion of statute Investigation cases, I Pre-commitment Stat- conclude sentencing judge imperative to receive and it ute makes investigation prior pre-commitment consider a sentencing. present appeal apparently in the case on shows record opinion receiving from after the Court’s
that the trial
quoted,
judgment,
the above is
vacated the
ordered and
which
investigation,
report of
pre-commitment
considered
received a
I, therefore,
again
sentenced
defendants.
report and
should,
point,
on this
be
feel
likewise
affirmed.
Reported in
Note. — v. State Indiana.
Jones *8 February 6, petition rehearing Filed No filed.] 469-S-80. [No.