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March 19, 2026 Get Citation Alerts Download PDF Add Note

In the Matter of James Steven Cox

Indiana Supreme Court

• Citations: None known
• Docket Number: 25S-JD-00080
• Panel: Mark S. Massa, Loretta H. Rush
• Judges: Rush, Massa, Slaughter, Molter, Goff

• Disposition: Judicial Discipline Public Reprimand

• Opinion

• Authorities (31)

• Cited By (0)

• Summaries (0)

• Similar Cases (41.7K)

• PDF

Disposition

Judicial Discipline Public Reprimand

Combined Opinion

IN THE

Indiana Supreme Court
Supreme Court Case No. 25S-JD-80
FILED
Mar 19 2026, 1:59 pm

CLERK
Indiana Supreme Court
In the Matter of the Honorable Court of Appeals
and Tax Court

J. Steven Cox, Judge of the
Franklin Circuit Court,
Respondent.

Decided: March 19, 2026
Judicial Discipline Action

Hon. Matthew E. Sarber,
Hon. Marianne Vorhees, and
Hon. Kelsey Hanlon,
Special Masters

Per Curiam Opinion
Chief Justice Rush concurs.
Justice Molter concurs with separate opinion in which Justice Massa and
Justice Slaughter join.
Justice Goff did not participate in the decision of this matter.
Per curiam.

This matter is before us on the Indiana Commission on Judicial
Qualifications’ (“Commission”) “Notice of the Institution of Formal
Proceedings and Statement of Charges” (“Complaint”) against
Respondent, the Honorable J. Steven Cox, former Judge of the Franklin
Circuit Court. After considering the evidence, the Special Masters’ report,
and the parties’ arguments, we find that Respondent committed judicial
misconduct by engaging in—and relying on—ex parte communication
with the criminal defendant in a Level 1 felony case. We also agree that
this egregious misconduct warrants the most serious discipline we can
impose on a judge who no longer holds elected office: Respondent’s
permanent ban from judicial service and a public reprimand.

Chief Justice Rush would also find that Respondent violated our Code of
Judicial Conduct by implementing a de facto policy of denying negotiated
plea agreements, but the other three participating Justices would stop short
of deciding whether such a policy is an ethical violation. Ante, at 1.

Procedural Background
On April 3, 2025, the Commission filed its Complaint against
Respondent, which it later amended to correct a clerical error. The
Complaint alleged three counts of misconduct: Respondent (1) engaged in
ex parte communication while presiding over a Level 1 felony criminal
case, State v. Guilfoyle; (2) relied on that ex parte communication to rule on
issues in the case; and (3) implemented a de facto policy of rejecting all
written plea agreements. With the Court’s permission, Respondent filed a
belated answer, and on June 23, we appointed three Special Masters to
preside over the case.

With no agreement reached and after several continuances, the parties
convened on September 30, 2025, for a final evidentiary hearing. On
November 14, the Masters issued their 45-page report. They concluded
that the Commission had carried its burden of proof as to all charged
counts and rule violations.

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 2 of 12
But the Masters declined to recommend a sanction. See Admis. Disc. R.
25(VIII)(N)(2). On December 2, the Commission filed its response to the
Masters’ report, wherein it recommended that this Court adopt the
Masters’ findings wholesale and impose a public reprimand and six-
month prohibition on Respondent’s ability to hold judicial office.
Respondent petitioned for review, challenging the Masters’ conclusions.
He argued that his actions did not violate any ethical rules, so we should
decline to impose a sanction. The Commission filed its reply on December
31, rendering the case fully briefed for our consideration.

Discussion
Respondent argues that his conduct did not violate any ethical rules,
and, regardless, his retirement from office and the bar renders this case
moot. We disagree with both assertions. We adopt the Masters’ findings
as summarized below. And we explain how Respondent’s misconduct
violated various Rules of Judicial Conduct, meriting a significant sanction.

I. Facts
a. State v. Guilfoyle

Respondent was admitted to the bar in 1990 and began serving as the
elected judge of the Franklin Circuit Court on January 1, 1995. He
presided over major felony cases, from Level 4 felonies to murders. He
retired from that office on December 31, 2024.

On December 23, 2022, Gregory Guilfoyle exchanged gunfire with law
enforcement and sustained life-threatening injuries. That same day, the
Franklin County prosecutor filed two counts of Level 1 felony attempted
murder and one count of Level 6 felony neglect of a dependent against
Guilfoyle in case number 24C01-2212-F1-879 (“Case 879”). Respondent
presided over the case between December 2022 and February 2024. Due to
Guilfoyle’s severe injuries, the parties disputed whether he should be
detained while awaiting resolution of his case.

On January 11, 2023, Guilfoyle’s counsel (“McMillen”) filed a “Motion
for Psychiatric Evaluation” to address concerns that Guilfoyle was not

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 3 of 12
competent to stand trial. Respondent presided over a hearing on counsel’s
motion on January 18. At that time, Respondent released Guilfoyle from
custody on his own recognizance with the condition that Guilfoyle be
placed on home detention at his parents’ house. Respondent ordered
probation to make weekly visits to the house and report back to the court
as to Guilfoyle’s health. But Respondent did not rule on McMillen’s
motion for an evaluation.

On January 23, McMillen filed a “Motion to Authorize Defendant to be
Transported to Medical Facilities While on In-Home Detention,” which
Respondent granted the following day. Meanwhile, Chief Probation
Officer Brian Campbell visited Guilfoyle on January 19 and January 25.
On January 26, Campbell filed a report regarding Guilfoyle’s physical
abilities and medical condition. That same day, Campbell spoke directly
with Respondent at the courthouse. Respondent told Campbell to take
him to Guilfoyle. Respondent felt he had a responsibility to know the
home’s condition to ensure the placement was appropriate and to protect
himself and the court from liability.

So Campbell went back to Guilfoyle’s parents’ home on January 26, this
time with Respondent. Respondent did not notify any party as to the
impending visit. Respondent spoke with Guilfoyle’s father and mother in
Guilfoyle’s presence regarding Guilfoyle’s physical and mental wellbeing.
Respondent also spoke directly with Guilfoyle and asked him questions.

Later on January 26, Respondent issued a sua sponte order authorizing
Guilfoyle’s in-home detention providers to transport him to a medical
facility. Respondent premised his order on Campbell’s filed report, an
email with Campbell, and the “subsequent in-person inspection of the in-
home detention residence by the Court.” The prosecutor assigned to the
case later testified that he did not understand Respondent’s order to mean
that Respondent spoke with Guilfoyle. Respondent did not set a hearing
on his order.

Campbell later wrote an internal report, which described the January 26
conversation in the home as including “lengthy explanatory discussions
about [Guilfoyle's] physical and mental health and the concerns and

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 4 of 12
objectives of the Court." Campbell did not share the report with the other
parties.

On February 3, 2023, McMillen renewed his motion for a psychiatric
evaluation. Respondent held a hearing on the motion on February 15 and
took the matter under advisement. A few days later, McMillen filed a
“Notice of Intent to Interpose the Defense of Insanity.” Respondent then
held a hearing on March 29 where he addressed McMillen’s pending
motions. Respondent stated:

Of course, the court isn't either equipped, or schooled[,] or
certified in evaluation of a person’s mental condition. But I will
note for the record that on that date, when the court went to
personally observe the accounts that were being given to the
court about why emergency care was necessary, the Defendant
on that date was able to understand and answer the court's
questions with regard to his physical situation. And at least on
that date, was not having this exhibiting [sic] the same kinds of
characteristics that have been reported by his caregivers and
family with regard to his mental state, at other times.

Respondent would later deny McMillen’s renewed motion for a
psychiatric evaluation, supplements, and notice of intent to interpose
insanity defense in a written order, writing:

Based on the Court’s observation of the Defendant during his
pretrial release in the supervising home as well as his
appearance remotely for his Initial Hearing held April 5, 2023,
the Court FINDS that there are no reasonable grounds to believe
that the Defendant has an insufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding or has no present ability to formulate a rational as
well as functional understanding of the proceedings against him.

When McMillen filed a “Renewed Motion for Competency and Insanity
Evaluations Pursuant to Original Action 2,” Respondent denied it for the
“reasons already stated by the court[.]” McMillen asked the court to
certify that order for interlocutory appeal, which Respondent denied.

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 5 of 12
Although he granted McMillen’s request to appoint two doctors to
conduct an insanity evaluation, Respondent never authorized a
competency evaluation.

b. Plea Agreements

In August 2022, Respondent appeared before the Franklin County
Council to discuss the Circuit Court’s 2023 budget. Respondent told the
council that (1) major felony cases had significantly decreased in Circuit
Court 1; (2) the court should only use negotiated plea agreements to avoid
backlogs; and (3) “I don’t deal with plea agreements anymore” and to
expect more trials and dismissals in 2023.

Beginning in the summer of 2022, Respondent routinely rejected plea
agreements and set cases for trial without providing a rationale. Between
July 2022 and December 31, 2024, Respondent did not accept any written
plea agreements. Because Respondent rejected the proposed plea
agreements, the State dismissed several cases, refiled them as lower-level
felonies in other courts, and resolved the matters via written plea
agreements in those courts. At some point, the Franklin County
Prosecutor’s Office stopped filing written plea agreements in
Respondent’s court.

Respondent told “all of the attorneys” who practiced in his court that
he “wasn’t going to fool with written plea agreements anymore[.]”
Respondent advised two attorneys that he couldn’t stop them from filing
plea agreements, but he hadn’t “been entertaining” them.

II. Rule Violations
a. Ex Parte Communication

Code of Judicial Conduct Rule 2.9(A) generally prohibits a judge from
initiating, permitting, or considering ex parte communication. However, it
contains an exception for “ex parte communication for scheduling,
administrative, or emergency purposes, which does not address
substantive matters[.]”

Respondent claims his communication with Guilfoyle fell under the
administrative and emergency exceptions. He argues he reasonably

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 6 of 12
believed that an emergency existed requiring him to visit Guilfoyle in
person. He points to Campbell’s January 26, 2023, report for support. That
report described Guilfoyle’s “extreme amount of pain[,]” “paraly[sis] from
the waist down[,]” “fractured rib[,]” and “open wound near his right leg”
that continued “to leak bodily fluids.”

But even assuming an emergency existed, Respondent fails to explain
why he could not rely on Campbell’s weekly reports to appropriately
address the emergency. He also fails to acknowledge that the rule
prohibits a judge from discussing “substantive matters,” even if the ex
parte communication is for administrative or emergency purposes.
Respondent asked Guilfoyle and Guilfoyle’s parents questions about
Guilfoyle’s health. And McMillen had filed several motions in Case 879
directly pertaining to Guilfoyle’s health, both before and after Respondent
visited the home.

Further, Judicial Conduct Rule 2.9(A)(1)(b) requires a judge who
engages in ex parte communication for administrative or emergency
purposes to “promptly notify all other parties of the substance of the ex
parte communication” and give them an opportunity to respond. And
Rule 2.6 requires judges to provide “every person who has a legal interest
in a proceeding, or that person's lawyer, the right to be heard according to
law.” The record shows Respondent did not notify the parties that he
spoke directly with Guilfoyle or of the substance of their conversation
until two months later. We agree with the Masters that, under these
circumstances, this was not sufficiently prompt for purposes of Rule 2.9.
Thus, Respondent failed to provide the parties with their right to be heard
as Rule 2.6 requires.

Finally, Rule 2.9(C) prohibits a judge from independently investigating
facts and requires judges to consider only the evidence presented by the
parties or facts that may be properly judicially noticed. See Rule of
Evidence 201 (describing which facts may be judicially noticed, none of
which apply here). Respondent made clear that his ex parte discussion
with Guilfoyle factored into his decision to deny McMillen’s motions for a
psychiatric evaluation.

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 7 of 12
In sum, we agree with the Masters—who also found that this conduct
violated Judicial Conduct Rules 1.2,1 2.2,2 and 2.63—that Respondent
violated Rules 2.9(A)4 and 2.9(C)5 in connection with his handling of the
Guilfoyle case.

b. Plea Agreements

Respondent does not dispute that he had a two-year de facto policy of
denying all written plea agreements regardless of the specific merits of
each case. The Commission charged, and the Masters found, that this
practice violates Judicial Conduct Rules 1.2 and 2.2.

Respondent does not believe that his blanket policy violated the Code.
He correctly notes that judges have discretion to accept or deny plea
agreements, see Rodriguez v. State, 129 N.E.3d 789, 794 (Ind. 2019), and that
defendants do not have a constitutional right to plea bargain, see
Weatherford v. Bursey, 429 U.S. 545, 561 (1977).

The Masters found In the Matter of Young instructive. There, we
disciplined the judge-respondent for imposing increased penalties against
traffic-infraction litigants who exercised their trial rights to penalize them
and discourage others from doing so. In accepting the parties’ conditional

1“A judge shall act at all times in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the
appearance of impropriety.” Jud. Cond. R. 1.2.
2“A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly
and impartially. A judge may make reasonable efforts, consistent with the law and court
rules, to facilitate the ability of all litigants, including self-represented litigants, to be fairly
heard.” Jud. Cond. R. 2.2.
3“A judge shall accord to every person who has a legal interest in a proceeding, or that
person's lawyer, the right to be heard according to law.” Jud. Cond. R. 2.6(A).
4“A judge shall not initiate, permit, or consider ex parte communications, or consider other
communications made to the judge outside the presence of the parties or their lawyers,
concerning a pending or impending matter,” with exceptions inapplicable here. Jud. Cond. R.
2.9(A).
5“A judge shall not investigate facts in a matter independently, and shall consider only the
evidence presented and any facts that may properly be judicially noticed.” Jud. Cond. R.
2.9(C).

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 8 of 12
agreement, we held that the judge-respondent failed “to consider the
specific circumstances of the cases before him when imposing penalties on
defendants[.]” 943 N.E.2d 1276, 1280 (Ind. 2011). And although a judge
has discretion when choosing the appropriate costs and fees to impose on
a defendant, see Spells v. State, 225 N.E.3d 767, 771 (Ind. 2024), we still
found that Judge Young’s practice violated the Code of Judicial Conduct.

Chief Justice Rush has similar concerns with Respondent’s policy here.
Respondent also failed to consider the specific circumstances of each case
before him. He forced all defendants in his court to either plead open or
proceed to trial, despite Indiana law expressly authorizing plea
agreements. Not only did Respondent’s policy delay cases and waste
resources, it gave the appearance of a patchwork judicial system in which
defendants’ rights vary depending on which court hears their cases.

But for reasons explained in the concurring opinion, the other
participating Court members would decline to reach this issue in the
context of this proceeding. At the end of the day, our different views on
Count 3 ultimately do not alter our unanimous conclusion regarding the
sanction merited by Respondent’s misconduct.

III. Sanction

Having found that Respondent’s misconduct violated various rules, we
are left with the task of determining an appropriate sanction.64

This Court may impose a variety of sanctions for judicial misconduct,
including limitations or conditions on the performance of judicial
duties. See Admis. Disc. R. 25(IV). Judicial discipline proceedings are not
only remedial in nature but also intended to preserve the integrity of and
public confidence in the judicial system. Matter of Hawkins, 902 N.E.2d 231,

64As mentioned, Respondent retired from office in December 2024. He then retired from the
practice of law in November 2025, after the final hearing in this matter. He urges us to find the
case moot and to decline to impose a sanction due to his voluntary retirement. Because
Respondent can seek reinstatement and subsequently serve as a senior judge or judge pro
tempore, see Admis. Disc. R. 2(e), we decline to find the case moot. Thus, we address the
appropriate sanction.

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 9 of 12
244 (Ind. 2009). Sanctions are “designed to deter similar misconduct and
assure the public that judicial misconduct will not be condoned.” Matter of
Young, 92 N.E.3d 628, 634 (Ind. 2018).

We may consider aggravating and mitigating factors offered by the
parties when arriving at a sanction. In the Matter of Brown, 4 N.E.3d 619,
628 (Ind. 2014). Here, the Commission offers several aggravating factors:

• Respondent’s misconduct prejudiced the administration of
justice.
• Respondent’s misconduct caused actual harm to the parties in
State v. Guilfoyle.
• Respondent has shown a lack of insight regarding the impact of
his misconduct.
• Respondent has prior discipline—specifically, three private
cautions and a public Commission admonition.

We find these factors persuasive. Despite having been previously
cautioned for inappropriate ex parte communication, Respondent
maintains that his in-person visit and discussion with Guilfoyle did not
violate Rule 2.9. This demonstrates a fundamental misunderstanding of—
or blatant disregard for—what that rule requires.

Respondent proffers two potential mitigators, but the first is the
mootness argument we rejected above and the second is his cooperation
with these proceedings, which Admission and Discipline Rule 25(J)(1)
requires of all judges.

Most judicial discipline cases involving singular instances of ex parte
communication resulted in either public reprimands or short active
suspensions as agreed upon by the parties. See, e.g., Matter of Sanders, 674
N.E.2d 165 (Ind. 1996) (7-day suspension); Matter of Jacobi, 715 N.E.2d 873
(Ind. 1999) (3-day suspension); Matter of Meade, 200 N.E.3d 448 (Ind. 2023)
(7-day suspension). Indeed, in Meade, we opined, “[W]e cannot overlook
the fact that we are considering this matter following the parties’
submission of a conditional agreement. Such agreements are often the
product of lengthy negotiations and may merit a less severe sanction

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 10 of 12
than might otherwise be imposed after a trial on the merits.” 200 N.E.3d
at 451–52 (internal citations omitted) (emphasis added).

But the breadth of Respondent’s misconduct exceeds that at issue in
Sanders, Jacobi, and Meade. The Commission has disciplined Respondent
on four previous occasions, including twice for engaging in ex parte
communication. And this case is not before us because the parties reached
an agreement. Rather, Respondent held the Commission to its burden of
proof in an all-day hearing, after which three Masters found that
Respondent violated Rules 1.2, 2.2, 2.6, 2.9(A), and 2.9(C). Despite this,
Respondent continues to deny any wrongdoing.

We cannot suspend Respondent because he is no longer on the bench.
But for the foregoing reasons, we believe that preserving the integrity of
the judiciary and ensuring the fair administration of justice require us to
impose the maximum sanction available under the circumstances—a
public reprimand and permanent ban from serving as a judicial officer.

Conclusion
Due to his egregious misconduct, the Honorable J. Steven Cox is hereby
publicly reprimanded and permanently banned from judicial service. As
of the date of this opinion, he will no longer be eligible for judicial service,
including as a judge pro tempore or senior judge. The Special Masters
appointed in this case are discharged, and the Court commends them for
their conscientious service in this matter.

Rush, C.J., concurs.
Molter, J., concurs with separate opinion in which Massa and
Slaughter, JJ., join.
Goff, J., did not participate in the disposition of this matter.

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 11 of 12
ATTORNEYS FOR RESPONDENT
Garrett R. Bascom
Jefferson C.M. Kisor
Bascom & Kisor, LLC
Lawrenceburg, Indiana

ATTORNEYS FOR INDIANA COMMISSION ON
JUDICIAL QUALIFICATIONS
Adrienne L. Meiring, Counsel to the Commission
Stephanie K. Bibbs, Deputy Director of Litigation
Victoria H. Thomas, Staff Attorney
Mark R. Conner, Staff Attorney
Indianapolis, Indiana

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 12 of 12
Molter, J., concurring.

I agree with the Court’s decision to adopt the special masters’ findings
and conclusions as to Counts I and II, which relate to the judge’s ex parte
communications. And given his past disciplinary history, I also agree with
the Court’s reprimand and foreclosure of a return to post-retirement
judicial service. That is enough to resolve this matter, so we can stop there,
short of adopting the special masters’ conclusions for Count III.

For Count III, the special masters concluded the judge violated the
Code of Judicial Conduct by adopting a de facto policy of rejecting one
category of plea bargains—sentence bargains with stipulated sentences,
sometimes called “fixed pleas.” Chief Justice Rush agrees with the
Commission and special masters that the policy violated rules requiring
fairness and impartiality, which may be right. But I’m not yet convinced,
and we don’t need to decide the question here, so I conclude we should
leave it for another day.

My hesitation in unnecessarily answering this question here is twofold.
One concern is lingering doubt that the Commission carried its burden to
show a rule violation by clear and convincing evidence. A related concern
is that a trial judge’s role in reviewing plea agreements is fraught, so we
should hesitate to discipline judges before we’ve given them clearer
guidance through our other avenues for reviewing this sort of plea
bargaining policy in these sorts of circumstances: direct appellate review
or an original action for a writ of mandamus or prohibition.

Adding weight to these concerns, the Commission’s primary criticism
of the judge’s policy is the policy’s categorical, unyielding nature. But the
record is undisputed that it is common for trial judges across the State to
adopt categorical policies for rejecting plea agreements. Perhaps that just
reveals that even some of our best judges are unknowingly violating the
Code, or perhaps there are principled ways to distinguish their policies.
Before we begin down the path of disciplining judges for their categorical
approaches to plea bargaining, I’d like to gain a better view of where the
path ends.

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 1 of 15
To further explain my concerns below, I begin by describing the limits
of the judge’s plea bargaining policy. Then I discuss my concerns with the
Commission’s arguments. And I conclude by identifying better avenues
for reviewing this question of first impression.

I.

“Plea bargaining” is an umbrella term that covers both “charge
bargaining” and “sentence bargaining.” 16A Ind. Prac., Criminal
Procedure-Trial § 13.3 (2025). Charge bargaining is when the prosecutor
agrees to dismiss counts in exchange for the defendant agreeing to plead
guilty to others. Id. Courts tend to show more deference to charge
bargaining because they view it as part of the executive functions of
investigation and prosecution, which are largely ill suited to judicial
review. See United States v. Papke, 149 F.4th 1169, 1181 (10th Cir. 2025)
(“The zone of judicial discretion is ordinarily quite limited for charge
bargains because charge bargaining is a province primarily for the
exercise of prosecutorial—not judicial—discretion.” (quotations omitted));
see generally Darryl Brown, The Judicial Role in Criminal Charging and Plea
Bargaining, 46 Hofstra L. Rev. 63, 63–34 (2017) (explaining this view).

“Sentence bargaining” is different, and it takes a few forms. 16A Ind.
Prac., Criminal Procedure-Trial § 13.3 (2025). One form involves the
prosecutor agreeing to a sentence recommendation in exchange for the
defendant pleading guilty. See, e.g., Pannarale v. State, 638 N.E.2d 1247,
1248 (Ind. 1994). The agreement may be that the prosecutor make no
recommendation at all, recommend a particular sentence or range, or
recommend particular terms, like alternatives to incarceration or
concurrent rather than consecutive sentencing. Even if the judge approves
the agreement, the recommendation does not bind the judge, who retains
complete sentencing discretion. Hedger v. State, 824 N.E.2d 417, 420 (Ind.
Ct. App. 2005), trans. denied.

Another form—the one at issue here—involves the parties stipulating
to a particular sentence in exchange for the defendant pleading guilty,
sometimes called a “fixed plea” agreement. Rodriguez v. State, 129 N.E.3d
789, 794 (Ind. 2019) (explaining that “a ‘fixed’ plea is one which specifies
the exact number of years to be imposed for sentencing” (brackets and

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 2 of 15
quotations omitted)). A fixed-plea agreement binds the judge if the judge
approves it, in which case the judge must enter the agreed-upon sentence.
Id. Because fixed-plea agreements impinge on judicial rather than
executive prerogatives, some judges are less deferential to those
agreements. See Papke, 149 F.4th at 1181 (explaining that trial courts “enjoy
considerable discretion in their consideration of sentence bargains because
the imposition of sentence is a matter of discretion for the district court
and the prosecution’s role in sentencing bargains is strictly advisory”
(quotations and citations omitted)); Jeffrey Bellin & Jenia I. Turner,
Sentencing in an Era of Plea Bargains, 102 N.C. L. Rev. 179, 202 (2023)
(explaining that “judges dislike these stipulated sentence agreements
precisely because they attempt to restrict the judge’s sentencing
discretion” and that some judges complain the agreements “produce
sentences that result from closed door negotiations with the executive
branch rather than from a public hearing before an independent judge”
(quotations omitted)).

A trial judge’s discretion to later modify the sentence without the
prosecutor’s consent depends on the form of the bargain. Charge bargains
and sentence bargains with only nonbinding sentencing recommendations
leave the judge with discretion to later modify the sentence without the
prosecutor’s consent. See Rodriguez, 129 N.E.3d at 791 (holding that “courts
may modify a sentence only if the new sentence would not have violated
the terms of the valid plea agreement had the new sentence been
originally imposed”). But fixed-plea sentence bargains foreclose that
discretion. Id. (holding that the trial judge was “not authorized to modify
the sentence imposed under Defendant’s fixed-term plea agreement”).

Here, the parties and special masters generally refer to the judge’s
policy on “plea bargaining,” but his policy covered only one category of
plea bargains—fixed-plea sentence bargains. All five of the plea
agreements the Commission and special masters identified are in that
form, and both the judge and the Commission’s witnesses uniformly
confirmed the judge only declined to approve fixed-plea sentence
bargains; charge bargaining and sentence bargains with nonbinding
sentence recommendations continued. See Tr. at 69 (judge’s testimony that
he continued permitting charge bargaining); id. at 134–35 (prosecutor’s

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 3 of 15
testimony that the judge continued permitting charge bargaining); id. at
135–36, 169 (prosecutor’s testimony that the State continued entering into
plea agreements where the State agreed to make a particular sentencing
recommendation); id. at 276–77, 285 (Guilfoyle’s defense counsel’s
testimony that the judge’s policy shifted sentence bargaining to charge
bargaining).

The judge explained he had two primary reasons for adopting this
policy for fixed-plea sentence bargains. First, he thought courts should use
plea bargaining only for caseload management and that he could manage
his caseload without accepting fixed-plea sentence bargains. And second,
he did not want a fixed-plea sentence bargain to limit his ability to modify
a defendant’s sentence, where appropriate, in the future.

II.

The Commission argues that the judge’s categorical rejection of fixed-
plea sentence bargains violated two rules in the Code of Judicial Conduct.
The first is Rule 1.2, which provides: “A judge shall act at all times in a
manner that promotes public confidence in the independence, integrity,
and impartiality of the judiciary, and shall avoid impropriety and the
appearance of impropriety.” Ind. Judicial Conduct R. 1.2. The second is
Rule 2.2, which provides:

A judge shall uphold and apply the law, and shall perform all
duties of judicial office fairly and impartially. A judge may
make reasonable efforts, consistent with the law and court
rules, to facilitate the ability of all litigants, including self-
represented litigants, to be fairly heard.

Jud. Cond. R. 2.2. These are “rules of reason that should be applied
consistent with constitutional requirements, statutes, other court rules,
and decisional law, and with due regard for all relevant circumstances.”
Jud. Cond. Scope cmt. 5. They are not to “be interpreted to impinge upon
the essential independence of judges in making judicial decisions.” Id.
And in judicial discipline proceedings, the Commission has the burden to

Indiana Supreme Court | Case No. 25S-JD-80 | March 19, 2026 Page 4 of 15
prove with clear and convincing evidence that the judge violated these
rules. In re Young, 92 N.E.3d 628, 632–33 (Ind. 2018).

The Commission doesn’t analyze these rules separately; it argues that
in tandem they required the judge to “allow for the consideration of the
specific circumstances of cases before him,” and his categorical approach
to fixed-plea sentence bargaining did not reflect the “impartiality and
open-mindedness” the rules require. Commission’s Tender of Proposed
Findings at 33–34, ¶ 125. The Commission further faults the judge for
placing “his policy views about how the criminal justice system should
operate above other participants in the system.” Id. at 34, ¶ 126.

There is force to some of these arguments, and as I note below, some
have led other courts to conclude judges abused their discretion by
imposing categorical rules for rejecting plea agreements (although I have
not found any decisions in the context of judicial discipline). But a few
concerns give me pause.

A.

First, while the Commission faults the judge for placing “his policy
views about how the criminal justice system should operate above other
participants in the system,” id., our system compels trial judges to do that,
at least to some degree. Review of plea bargains is not analogous to civil
settlements. Generally, when parties settle a civil case, the judge has no
role in approving their deal and is not even informed of the terms. (There
are narrow exceptions, like class action settlements, which judges screen
because the agreements bind absent class members.) If a settlement is
tilted too far towards one party, or one party has been too heavy handed,
the judge has no ability to intervene and reject the deal.

In criminal cases, though, our legislature requires judges to screen
felony plea agreements, which the judges can reject. Ind. Code § 35-35-3-3.
Judges are given very little guidance about what they can or are supposed
to consider as well as what weight to give those considerations. Cf. United
States v. Wilmore, 282 F. Supp. 3d 937, 938, 941 (S.D. W. Va. 2017) (noting
that the federal rules task district judges with screening plea agreements
but do not tell judges what they “should or may” consider, and “[o]ther

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than granting the court broad discretion to accept or reject a plea
agreement, Rule 11 provides no further guidance for the court”); Fed. R.
Crim. P. 11 advisory committee’s note to 1974 amendment (“The plea
agreement procedure does not attempt to define criteria for the acceptance
or rejection of a plea agreement.”). But their considerations can be gleaned
from the purposes of their review, and there are at least a few reasons
judges are tasked with this screening. One is that the agreements may
intrude on the judge’s sentencing discretion, so judges are empowered to
reject agreements that would compel them to impose a sentence they
deem inappropriate. State v. Montiel, 122 P.3d 571, 575 (Mont. 2005); United
States v. Bean, 564 F.2d 700, 703–04 (5th Cir. 1977); Albert W. Alschuler, The
Trial Judge’s Role in Plea Bargaining, Part I, 76 Colum. L. Rev. 1059, 1074
(1976). Another is so that judges can protect defendants from the State’s
coercive power in a system that prioritizes plea bargaining. See Daniels v.
State, 453 N.E.2d 160, 164–65 (Ind. 1983) (“In criminal cases, the court must
protect a defendant from the power of coercion and abuse of the state
. . . .”); see generally Dylan R. McDonough, Note, In the Shadow of the Bench:
Judicial Discretion to Reject Plea Agreements, 57 Colum. J.L. & Soc. Probs.
633, 645–47 (2024); Rishi Raj Batra, Judicial Participation in Plea Bargaining,
76 Ohio St. L.J. 565, 584–86 (2015). And yet another reason is so judges can
ensure the bargain appropriately protects the public’s interests, including
by ensuring the punishment reflects the gravity of the offense and
appropriately mitigates the risk of future criminal behavior. See, e.g.,
Daniels, 453 N.E.2d at 164–65 (“In criminal cases, the court . . . must also
protect the interests of other members of our society in living in a
peaceful, orderly atmosphere.”).

Any time a judge exercises their discretion to reject a plea agreement
for these reasons, they are, as the Commission puts it, elevating their own
policy views about how the criminal justice system should operate over
other participants in the system. Bellin & Turner, supra, at 202 (explaining
that judges reject plea agreements “for a range of reasons, including that
the agreement does not adequately reflect the seriousness of the offense,
unduly cabins the judge’s sentencing discretion, or is contrary to the
sound administration of justice” (quotations omitted)). When a judge
rejects a plea agreement because it’s too late (e.g., the jury trial has already

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started) or lenient, for example, the judge is elevating their own view of
how the criminal justice system should operate over the views of the
prosecutor, the defendant, and maybe even the victim. That elevation is
appropriate at the policy level too. The prosecutor decides what charges
are appropriate. But when local judges and local prosecutors have
differing policy views about the appropriate punishments within
statutory ranges for the crimes prosecutors charge—e.g., driving while
intoxicated, drug crimes, violent crimes, or property crimes—the judges’
views about punishment trump the prosecutors’ views.

I suspect what the Commission may really mean is that judges
shouldn’t ignore the parties’ views, which is true. But unless we or the
legislature change the judge’s role in screening plea agreements, the
judge’s views remain elevated above the views of others.

B.

Second, one of the Commission’s key concerns is the categorical nature
of the judge’s approach, but the undisputed evidence is that it is common
for Indiana trial judges to have categorical approaches for rejecting plea
agreements. One of the Commission’s witnesses—Guilfoyle’s defense
counsel who is also a former state legislator—testified that judges around
the State reject plea bargains after they “adopt wholesale patterns of
dealing with cases” rather than dealing “with cases on a case-by-case
basis.” Tr. at 287.

He gave an example of a now retired, highly respected trial judge who
had “a policy that the first offense of DUI required seven days of jail
time.” Id. He explained “there was no discussion about it, [the judge]
would not accept a plea agreement that did not include seven days of jail
time,” and there were no circumstances in which the judge would ever
deviate from the policy. Id. He added that he is “constantly” dealing with
another county that takes a “wholesale approach to the issues of no
contact orders.” Id. And he testified there are “several other courts that
have wholesale policies that do not allow for any discussion to be
conducted” before rejecting plea agreements with terms that judges are
categorically unwilling to consider. Id. at 288.

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It could be that all those judges have long been routinely violating the
Code of Judicial Conduct. Or maybe there is a principled distinction
between having a blanket policy to reject all fixed-plea sentence bargains
and having a blanket policy to reject all sentence bargains that do or don’t
contain certain terms for narrower categories of cases involving certain
crimes or criminal histories. But the Commission doesn’t explain the
distinction, and the limiting principles aren’t obvious.

Guilfoyle’s counsel also testified that while this judge began taking a
categorical approach to rejecting plea agreements with stipulated terms,
he did not take a categorical approach to sentencing and instead
considered the specific facts of each case. Id. at 285–86. It would seem
perverse to condone the current common practice of categorically rejecting
plea agreements with terms that judges deem too lenient as a matter of
policy while condemning a judicial practice of rejecting plea agreements
to preserve the judge’s ability to exercise case-specific sentencing
discretion, including through downward sentence modification.

C.

Third, the Commission argues the judge’s transparency made things
worse, because his “verbalization of his no-plea-agreement policy to
members of the Bar and community further damaged public confidence in
the impartiality and integrity of the judiciary.” Commission’s Tender of
Proposed Findings at 36, ¶ 126. That strikes me as backwards; we should
want these policies in the daylight so they can be reviewed more easily.
While our Court has held that judges aren’t required to give reasons for
rejecting plea agreements, Meadows v. State, 428 N.E.2d 1232, 1235 (Ind.
1981), we’ve also said the better practice is to do so, Ellis v. State, 744
N.E.2d 425, 429 (Ind. 2001). Here, a secret policy would have been worse
than the publicly stated policy.

D.

Fourth, the Commission doesn’t confront the judge’s reasons for
adopting his policy. We have acknowledged that our criminal justice
system is primarily one of pleas rather than trials, Miller v. Patel, 212
N.E.3d 639, 650 (Ind. 2023), but that observation has come with plenty of

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lament. Early on, our Court condemned plea bargaining as “corrupt.”
Golden v. State, 49 Ind. 424, 427 (1875). About a century later, our view
evolved to what is now the predominant view around the country, which
is that plea bargaining is a widespread practice that offers benefits to both
prosecutors and defendants.

For the State, the massive backlog of cases in our courts is well
known. If a conviction can be obtained without the need for a
formal trial the wheels of justice are accelerated thus enabling
law enforcement personnel to conduct more extensive
investigations and vigorous prosecutions of other cases in the
fight against crime. For the defendant, it clearly increases the
likelihood of a lighter sentence than he might otherwise
receive. Were there no plea bargaining allowed, the
prosecution would have no reason to seek other than the
maximum sentence. Such a procedure also relieves the
defendant and his family of a great deal of anxiety and
embarrassment which might result from a protracted jury trial.

Dube v. State, 275 N.E.2d 7, 9 (Ind. 1971); see also Anderson v. State, 269
N.E.3d 817, 823 (Ind. 2025) (explaining plea bargaining’s “mutual benefits
between the parties”).

But our acknowledgment of plea bargaining’s benefits has come with
plenty of worry that “there are accompanying dangers inherent in the
practice,” including that, without appropriate guardrails, it could be
“used as a coercive force to obtain pleas of guilty.” Dube, 275 N.E.2d at 9.
Just a few years after recognizing the legitimacy of plea bargaining, our
Court still described it as “a highly questionable practice at its best.”
Ballard v. State, 318 N.E.2d 798, 810 (Ind. 1974); see generally 16A Ind. Prac.,
Criminal Procedure-Trial § 13.1 (2025) (noting the “continuing
reservations about the practice of plea bargaining”).

Plenty of judges and commentators have expressed similar concerns.
For example, Justice Scalia described plea bargaining as “a necessary evil”:

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It presents grave risks of prosecutorial overcharging that
effectively compels an innocent defendant to avoid massive
risk by pleading guilty to a lesser offense; and for guilty
defendants it often—perhaps usually—results in a sentence
well below what the law prescribes for the actual crime. But
even so, we accept plea bargaining because many believe that
without it our long and expensive process of criminal trial
could not sustain the burden imposed on it, and our system of
criminal justice would grind to a halt.

Lafler v. Cooper, 566 U.S. 156, 185 (2012) (Scalia, J., dissenting); see also
Wilmore, 282 F. Supp. 3d at 941, 943–45 (rejecting a plea agreement after
concluding “the common justifications behind plea bargaining no longer
have any substantial heft”; emphasizing the “paramount importance [of]
the public’s deeply-rooted interest in a criminal trial by jury” and that
“[j]uries are vital to a vibrant democracy and to a transparent and effective
criminal justice system”; and expressing concern that “the United States
criminal justice system has transitioned from a realm of public
participation to one of public exclusion where justice is dealt and plays
out in backroom deals and empty courtrooms” (quotations and footnotes
omitted)).

While this judge’s policy was unusual, his reasoning tracked the case
law. Both our Court and the United States Supreme Court have expressed
concerns about plea bargaining but concluded it is something we must
tolerate to manage dockets with limited resources. This judge concluded
he could manage his docket without one form of plea bargains—fixed-
plea sentence bargains—which appears to be undisputed. If, as Justice
Scalia described, plea bargaining is a “necessary evil,” then I’m not sure a
judge should be disciplined for eliminating some form of that evil where it
is no longer necessary.

The judge also concluded his policy was fairer to defendants. Accepting
sentence bargains with stipulated terms would eliminate the judge’s
discretion to modify the sentence later unless the prosecutor consented to
the modification, which he believed sometimes undermined his ability to
fulfill the constitutional directive that the criminal justice system is

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reformative rather than retributive. Ind. Const. art. 1, § 18 (“The penal
code shall be founded on the principles of reformation, and not of
vindictive justice.”).

As he explained:

Pleas made open to the court are modifiable. More often than
not, I have rejected modifications of major felony sentences
over the years but there are instances when the court was able
to move people before it forward in a different way because it
was not constrained by agreed upon language that could never
fully consider how a defendant would respond to
consequences assessed at one point in time and their ability to
respond affirmatively at another. I do not work in the volume
court where such concepts are more mechanical and the
sentences are suspended altogether or for short durations. I
work in the court where long terms of incarceration are the
starting point and rehabilitation, which is the stated goal of the
penal system as enshrined in our State Constitution, is harder
to assess, pursue and obtain.

Commission’s Ex. 8 at 2.

Consistent with this view, in two of the five plea agreements the
Commission identified, the judge ultimately imposed the same sentence
as the proposed plea agreement, so the only difference was the judge
maintained the ability to modify the sentence later if circumstances
warranted a modification. In the other three, the prosecutor dismissed the
charges and refiled in another court. The Commission does not identify
any agreements the judge rejected where the defendant then received a
sentence different from the terms to which the parties proposed. And
again, the Commission’s own witness, Guilfoyle’s counsel, shared many
of the judge’s concerns and held a similar view that he didn’t “particularly
care for [plea bargaining] in most cases.” Tr. at 282, 284–85.

All that said, I still agree with Chief Justice Rush at least to a point—I’m
skeptical the judge’s categorical approach was the best one. But I’m

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equally skeptical that it reflects a clear and convincing violation of the
Code. And if we’re going to start disciplining judges for insisting on
preserving their ability to later modify sentences, we should probably be
prepared to discipline judges who categorically refuse to consider
alternatives to incarceration for certain crimes, but I’m not yet prepared to
do that either.

At bottom, if we are concerned with categorical policies for reviewing
plea agreements, we have better options than judicial discipline for
reviewing that question while it remains one of first impression. Cf. Matter
of Blickman, 164 N.E.3d 708, 718 (Ind. 2021) (“Simply put, possibly
guessing incorrectly about an unsettled legal matter, upon which
reasonable minds can differ and indeed have differed, does not reflect
adversely on Respondent’s honesty, trustworthiness, or fitness as a
lawyer.”).

III.

We have at least two other avenues for reviewing a trial judge’s policy
of categorically rejecting certain types of plea agreements: direct appellate
review or an original action for a writ of mandamus or prohibition.

If a trial judge rejects a plea agreement and the defendant is later
convicted of a more severe charge or receives a more severe sentence, the
defendant can appeal the conviction or sentence. See, e.g., Meadows, 428
N.E.2d at 1233 (appeal after the trial court rejected a plea agreement and
then the jury convicted); Snyder v. State, 500 N.E.2d 154, 156 (Ind. 1986)
(appeal after the trial court rejected a plea agreement and the defendant
then pleaded guilty pursuant to a revised plea agreement). Ideally, if the
defendant’s complaint is that the judge rejected the plea based on a
blanket policy, the record would reflect that policy. One challenge,
though, is that our case law holds that the trial judge does not have to
identify a reason for rejecting the plea. Meadows, 428 N.E.2d at 1235.

If, and only if, direct appellate review does not provide an adequate
remedy, a party can file an original action in our Court requesting a writ
of mandamus compelling the trial court to take or cease some action.
See State ex rel. Goldsmith v. Marion Cnty. Super. Ct., Crim. Div. No. 1, 419

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N.E.2d 109, 111 (Ind. 1981) (mandamus and contempt proceedings
compelling the trial court to adhere to the terms of a plea agreement); State
ex rel. Abel v. Vigo Cir. Ct., 462 N.E.2d 61, 63 (Ind. 1984) (prosecutor
successfully sought writs of mandamus and prohibition compelling a trial
court to vacate its order granting “shock probation” and requiring the
judge to order the defendant to serve his executed sentence). “Original
actions are viewed with disfavor and may not be used as substitutes for
appeals.” Ind. Original Action Rule 1(C). But they remain available to us
for issuing writs of mandamus and prohibition when a trial court “has an
absolute duty to act or refrain from acting.” State ex rel. Commons v. Pera,
987 N.E.2d 1074, 1076 (Ind. 2013).

The judge here is far from the first to impose categorical limits on plea
bargains. Courts around the country have reviewed those policies through
direct appellate review and requests for writs, and they almost always
view those policies much like the special masters did here, concluding
that the categorical, rather than individualized, treatment is an abuse of
discretion. See, e.g., In re United States, 32 F.4th 584, 589–90, 595 (6th Cir.
2022) (granting the prosecutor’s request for “a writ of mandamus
directing the district court to reconsider the parties’ plea agreement and
cease its ‘practice’ of prohibiting all plea agreements containing appeal
waivers” and explaining that a trial court “cannot reject a plea agreement
based on abstract or extraneous policy considerations unrelated to the
particular case, because a court which does that abdicates its duty to
exercise any discretion at all”).

But the view is not uniform. The precise question here divided the
Arizona Supreme Court when deciding whether it was proper for a group
of five Maricopa County Superior Court judges with felony dockets to
summarily reject “all plea agreements containing stipulated sentences.”
Espinoza v. Martin, 894 P.2d 688, 688 (Ariz. 1995). The court was willing to
review the policy through Arizona’s “special action” proceeding because
the question was one of statewide importance and one of first impression.
Id. Reversing the Arizona Court of Appeals, which had upheld the policy,
a majority of the Arizona Supreme Court held the policy violated the
state’s procedural rules governing plea agreements. Id. at 691.

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Largely tracking the special masters’ reasoning here, the majority
concluded that while a trial court could “reject plea agreements with
stipulated sentences after giving them individualized consideration,
groups of judges may not implement policies to automatically reject all
such plea agreements without considering whether a stipulated sentence
is appropriate in light of the circumstances of the case.” Id. Based on the
same reasoning, that court also believed it was improper for trial judges to
reject plea agreements because they were filed after a court-imposed
deadline, which remains a common practice in Indiana. Id. at 690–91. But
see United States v. Gamboa, 166 F.3d 1327, 1331 (11th Cir. 1999) (holding
that a court “may reject guilty pleas that are tendered after a deadline set
by the court” based on the court’s view that the policy is “necessary to
prevent the needless waste of the jury’s time and for effective
management of its docket”); People v. Grove, 566 N.W.2d 547, 558 (Mich.
1997) (“We conclude that rejection of a tardy plea is within the discretion
of a trial court.”), superseded by statute; People v. Jasper, 17 P.3d 807, 814
(Colo. 2001) (“We hold that it is not an abuse of discretion for the trial
court to reject a plea bargain solely for failure to tender it before a court-
imposed plea deadline.”), as modified on denial of reh’g.

Other justices disagreed. Justice Zlaket concurred only in part because
the policy was an unapproved local rule, but he also concluded that a trial
judge’s discretion to reject plea agreements alone authorized the judge to
“summarily reject those containing stipulated sentences.” Espinoza, 894
P.2d at 696 (Zlaket, J., concurring in part and dissenting in part). Justice
Martone dissented and would have adopted the court of appeals’ opinion
approving the policy because he concluded the policy was a laudable
effort of “five trial judges to improve our criminal justice system.” Id. at
696 (Martone, J., dissenting). He went further, lamenting that Arizona has
“not been at the forefront of reform in the criminal justice system” and
urging his court to be “in the business of rewarding creative efforts” of the
judges who adopted the policy. Id. at 698. Other courts and prosecutors
have agreed. See United States v. Papke, 149 F.4th 1169, 1190 (10th Cir. 2025)
(noting the government’s argument that the district court did not abuse its
discretion by adopting a Chambers Rule to categorically reject sentence
bargains where the court implemented the rule “simply because it does

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not want to have its discretion limited”); United States v. Moore, 637 F.2d
1194, 1196 (8th Cir. 1981) (explaining that “a district court is under no
duty to consider a negotiated plea agreement”); United States v. Stamey,
569 F.2d 805, 806 (4th Cir. 1978) (holding that a trial judge “was not
required to consider the substance of” the plea agreement before deciding
to reject it on the basis that plea bargaining in the district “had gone too
far” and that “plea bargaining agreements [would] no longer be
recognized”); United States v. Jackson, 563 F.2d 1145, 1148 (4th Cir. 1977)
(“In our opinion each individual judge is free to decide whether, and to
what degree, he will entertain plea bargains, and his refusal to consider
any plea bargaining whatsoever will not vitiate a guilty plea which has
otherwise been knowingly and voluntarily entered.”).

The Commission does not cite any examples where a court has
reviewed through judicial discipline proceedings a trial judge’s policy for
reviewing plea agreements. Of course, the Commission presented the
question to us through judicial discipline proceedings here, and we
assigned the special masters the task of considering the question in the
first instance. So I certainly don’t fault the special masters for completing
the assignment, and I applaud their thoughtful, thorough work. They also
had no way of knowing which, if any, of their other conclusions we would
accept on review, so they appropriately answered all the questions before
them. But we’re in a different position when we review their report and
the subsequent briefing on the petition for review. And it strikes me as
unfair to trial judges to unnecessarily decide this question of first
impression through judicial discipline proceedings rather than through
direct appellate review or through an original action for a writ.

For those reasons, my vote is to adopt the special masters’ findings and
conclusions only as to Counts I and II.

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