*1 635 Letsinger, Judge orable James E. as there- of, hearing to recuse himself from Rela- Relation of of Indiana on the STATE petition post-conviction tor's for relief and RONDON, Relator, Reynaldo C. panel judges to name a of from which the v. judge parties were to choose a to hear the COURT, LAKE SUPERIOR CRIMINAL petition post-conviction for relief. We now TWO, and the Honorable DIVISION permanent. make that writ Judge Thereof, Letsinger E. as James Rondon, Relator, Reynaldo was sen- Respondents. 10, May tenced to death on 1985. Subse- No. 45S009010OR643. quent appeal, to a direct Relator filed a petition post-conviction for relief on June Supreme Court of Indiana. 29, later, days 1990. Relator filed Seven 10, April 1991. along change judge, his motion for of with good by
a certificate of faith counsel and supporting by affidavits both Relator and prejudice alleging his counsel and on bias part Respondent, the of the Honorable Letsinger. Respondent denied James E. this motion. 1(4)(b) pro-
Ind. Post-Conviection Rule vides:
Change judge shall of venue from the be files, granted petitioner the within when (10) days filing petition, ten of the of his person- Judge an affidavit that the has a against petitioner. prejudice al or bias and the The affidavit shall state the facts the that such bias or reasons for belief exists, prejudice accompa- and shall be by good nied a certificate of faith of good cause petitioner's counsel. For shown, petitioner may permitted the be (10) day after the ten to file the affidavit period. change of venue from the No granted. county shall be "[pJrovisions that This Court has said Elkhart, Menadue, Judith G. James Nich- only to assure not change judge for of are Thiros, Merrillville, olas for relator. judge litigant that a has an unbiased but Point, Letsinger, Linley James E. Crown he has also to assure that he believes that Pearson, Eugene Indianapolis, Jon Ernest being judge, that he is an unbiased ie. DeGuilio, Prosecutor, County Lake James (1978),268 fairly treated." Adams v. State Prosecutor, Olszewski, Office of the Tra- J. 482, 434, 436, If N.E.2d 483. a 376 Ind. Point, Page, ey Crown Arthur Edward change his motion for a of petitioner files Perry, Indianapolis, respon- for Thaddeus complies with judge timely in manner and a dents. rule, by the trial required form the the obligated grant to the motion. court is ORIGINAL ACTION Ind., (1986), 499 N.E.2d Lombardo v. State 1075. PER CURIAM. require- compliance with the Relator's issued an alternative writ of This Court directing Superior ments of P-C.R. 1(4)(b) the Lake him a
mandamus entitles to Two, change judge. of Court, Division and the Hon- Criminal *2 636 impar- right to fair and quate to assure the issued mandamus writ of The alternative judge. tial permanent. made is now
earlier GIVAN, J., concurs. SHEPARD, C.J., and DICKSON and KRAHULIK, JJ., concur.
DeBRULER, J., opinion with dissents GIVAN, J., concurs.
in which
DeBRULER, Justice, dissenting. 1(4)(b) Rule re- Indiana Post-Conviction INSTITUTE, INC., The OSLER change judge affidavit for of quires that an (Defendant Below), Appellant (1) a belief a statement that there is contain v. and judge personal the has a bias that INGLERT, Appellee Debra (2) and a against petitioner the prejudice (Plaintiff Below). for such of facts and reasons statement rejects proposition the The rule belief. No. 84S01-9104-CV-293. change that there should be an automatic Supreme Court of Indiana. I con- post-conviction in cases. of venue April10,1991. judge the trial to require this rule to strue affidavit, the historical read the consider true, and deter- therein as
facts asserted the facts so considered as
mine whether or support a rational inference of bias true do, be they If the motion should
prejudice. of
granted irrespective of the actual belief disquali- a judge that he does not have
the not, they If the
fying prejudice. or do bias and, upon appeal, denied
motion should be same appellate apply court should the
the If, course, actually has a judge the
test. of bias, only
disqualifying self-recusal is the
course. trial asserted are that the
Here the facts presided at the trial and sentenced
judge stat- to death. Another affidavit
petitioner one ex judge had more than
ed that the prosecuting at-
parte with the conversation Assuming that
torney his case. about true, they do assertions are
these factual that the support rational deduction
not a prejudice personal or
judge has a bias petitioner. deny I the writ
against would satisfy the do not
because the affidavits the fur-
requirements of the rule and for an reason that if the law countenances
ther ruling on a mo-
original action to review a post- the change venue under
tion for of rule, law should be over- conviction that Lor- Frey Hunt Hassler & Frey, A. Eric appellate rights reason that ruled for the surely ade- Haute, appellant. enz, circumstances are for under these Terre