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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: DANIELLE L. GREGORY Marion County Public Defender Carmel, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ANGELA N. SANCHEZ Deputy Attorney General Indianapolis, Indiana

FILED
Dec 31 2009, 10:00 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
MICHAEL GRAY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 49A02-0906-CR-542

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Mark D. Stoner, Judge The Honorable Jeffrey Marchal, Commissioner Cause No. 49G06-0804-FA-071521

December 31, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION VAIDIK, Judge

Case Summary Michael Gray appeals his conviction and sentence for Class A felony child molesting. We hold that (1) the trial court did not err by denying Gray's untimely request for an elected judge to preside over the case, (2) the trial court did not abuse its discretion in refusing to consider various alleged mitigators at sentencing, (3) the trial court did not err by assessing Gray with a child abuse prevention fee and a sexual assault victims assistance fee, but (4) the trial court did err by assessing a public defender service fee without a hearing on Gray's ability to pay. We affirm Gray's conviction but remand for a determination of Gray's ability to pay the costs of his appointed representation. Facts and Procedural History In April 2008 Gray was charged with one count of Class A felony child molesting and one count of Class C felony child molesting. An initial hearing was convened the following July. The Master Commissioner set Gray's omnibus date for September 2, 2008. On April 14, 2009, Gray moved for an elected judge to preside over his trial. The trial court denied Gray's motion because it had not been timely filed. Gray was brought to trial in May 2009. The Master Commissioner presided. A jury found Gray guilty of Class A felony child molesting and not guilty of Class C felony child molesting. At sentencing Gray proffered the following mitigators: that his family and friends showed concern and continuing support for him and that his past offenses were unlike the one committed in this case. The trial court found no mitigating

circumstances. The court did find the following aggravators: Gray's criminal history and

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his commission of the instant offense while on parole. The court sentenced Gray to thirty-five years. The trial court did not conduct a hearing on Gray's ability to pay fees and costs, though after sentencing the trial court pronounced Gray "indigent to all fines, costs, and fees" and indigent for purposes of appeal. Tr. 216-17. In any event, Gray's

chronological case summary reflects that he was assessed a $100 child abuse prevention fee, a $250 sexual assault victims assistance fee, and a $100 supplemental public defender service fee. Gray now appeals. Discussion and Decision Gray raises three issues which we reorder and restate as follows: (I) whether the trial court erred by denying his request for an elected judge to preside over his trial, (II) whether the trial court abused its discretion by failing to consider various alleged mitigators at sentencing, and (III) whether the trial court erred by assessing specific fees and costs against him. I. Request for Elected Judge to Hear Trial Gray argues that the trial court erred by denying his motion for an elected judge to preside over his trial. "A party to a superior court proceeding that has been assigned to a magistrate appointed under this section may request that an elected judge of the superior court preside over the proceeding instead of the magistrate to whom the proceeding has been assigned." Ind. Code

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