[Defendant filed a motion to disqualify the trial judge because seven days prior to the incident involved in the present case, the trial judge had granted him an early release on a previous conviction. Defendant contended that the trial judge "could not help but be biased and prejudiced against him for apparently breaking the Court's trust as evidenced by an early release." Both the trial judge and another trial judge determined the affidavit was legally insufficient.]
First, Ontiveros contends the trial judge committed error by failing to recuse himself. He argues that the trial judge "could not help but be biased" against him because the trial judge had granted Ontiveros an early release on an unrelated conviction, just seven days prior to the incident involved in the present case. In State v. Neeley, the Utah Supreme Court recommended that trial judges should recuse themselves when their "'impartiality" might reasonably be questioned." 748 P.2d 1091, 1094 (Utah), cert. denied, 108 S. Ct. 2876 (1988) (citing Utah Code Jud. Conduct 3(C)(1)). However, the Neeley court determined that absent a showing of actual bias or an abuse of discretion, the failure of trial judges to recuse themselves "does not constitute reversible error as long as the requirements of (Rule 29 of the Utah Rules of Criminal Procedure) are met. " Id.
Rule 29 states in part: (c) If the prosecution or a defendant in any criminal action . . . files an affidavit that the judge before whom the action or proceeding is to be tried or heard has a bias or prejudice . . . the judge shall proceed no further until the challenge is disposed of
(d) If the challenged judge questions the sufficiency of the allegation of disqualification, he shall enter an order directing that a copy be forthwith certified to another named judge of the same court . . ., which judge shall then pass upon the legal sufficiency of the allegations . . . . If the judge to whom the affidavit is certified finds that it is legally sufficient, another judge shall be called to try the case . . . . If the judge to whom the affidavit is certified does not find the affidavit to be legally sufficient, he shall enter a finding to that effect and the challenged judge shall proceed with the case or proceeding. Utah R. Crim. P. 29(c) and (d).
In the present case, Ontiveros submitted an affidavit requesting that the trial judge recuse himself from the case. The trial judge determined the affidavit was legally insufficient to require recusal and, following the procedure of Rule 29, certified the affidavit to another judge for a ruling. After reading the affidavit and holding a hearing, the other judge determined the affidavit was not legally sufficient to require recusal and referred the case back to the trial judge. Because the trial judge precisely followed the provisions of Rule 29, Ontiveros must show actual bias or an abuse of discretion in order to prevail on this point. In his brief, Ontiveros does not attempt to show actual bias or an abuse of discretion. Instead he alleges the trial judge's failure to follow a presentence report recommending a ninety-day evaluation, and his refusal to lower bond resulted in an appearance of bias. However, a trial judge's failure to recuse himself based on an appearance or bias does not constitute error unless the substantial rights of the accused are affected. See State v. Gardner, 789 P.2d 273, 278 (Utah 1989). Rule 30 of the Utah Rules of Criminal Procedure provides that an error is not reversible unless the substantial rights of a party are affected. Utah R. Crim. P. 30. According to State v. Fontana, the Rule 30 language means that an error warrants reversal only if the reviewing court is persuaded that without the error there was a reasonable likelihood of a more favorable result for the defendant. 680 P.2d 1042, 1048 (Utah 1984) (quoting State v. Hutchinson, 655 P.2d 635, 637 (Utah 1982)). The recusal of the trial judge would not have created a reasonable likelihood of a more favorable result for Ontiveros given the following factors: (1) Ontiveros's guilt or innocence determined by a jury, and (2) there was no showing of actual bias on the part of the trial judge.
Thus, in light of the trial judge's compliance with Rule 29 and Ontiveros's failure to establish actual bias or an abuse of discretion, we find no error in the trial judge's refusal to recuse.