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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: MARK SMALL Indianapolis, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JODI KATHRYN STEIN Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

May 14 2010, 9:39 am

IN THE COURT OF APPEALS OF INDIANA
THOMAS HODSON, Appellant-Petitioner, vs. STATE OF INDIANA, Appellee-Respondent. ) ) ) ) ) ) ) ) )

CLERK

No. 35A02-0909-PC-884

APPEAL FROM THE HUNTINGTON CIRCUIT COURT The Honorable Thomas H. Hakes, Judge Cause No. 35C01-0804-PC-2

May 14, 2010 MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge

Thomas Hodson appeals the denial of his petition for post-conviction relief. We affirm. FACTS AND PROCEDURAL HISTORY On April 12, 2000, Hodson was charged with Class A felony child molesting and Class B felony sexual misconduct with a minor. On the State's motion for a trial setting, Judge Mark A. McIntosh set the matter for a jury trial on October 11, 2001 before Judge Jeffery Heffelfinger. On October 3, 2001, Hodson filed an "Objection to Appointment of Special Judge," arguing that "the exclusive method for the appointment of a special judge is governed by Ind.R.Crim.P. 13. Further, neither the State nor the Defendant have requested a special judge be appointed." (App. at 132.)1 On October 4, 2001, the State filed a response, which stated: 1. On September 26, 2001, Circuit Court Judge Mark A. McIntosh appointed [Superior Court] Judge Jeffery Heffelfinger as Judge pro tempore, pursuant to Indiana Rule of Trial Procedure 63(E), in this matter. Judge McIntosh did not recuse himself or appoint Judge Heffelfinger as a special judge. Judge Mark A. McIntosh is on vacation from October 1 through October 15, 2001. Because of Judge McIntosh's absence, Judge Jeffery Heffelfinger has been appointed as Judge Pro Tempore pursuant to Indiana Rule of Trial Procedure 63(E) for the trial that is scheduled to commence on October 11, 2001. Pursuant to Indiana Criminal Rule 4 the State must bring the defendant to trial within one year. The time period in which the State must bring the defendant to trial expires on October 12, 2001, therefore, the trial must be conducted by a Judge pro tempore because Judge McIntosh will be on vacation.

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We will refer to the Appendix submitted with the direct appeal as "App." and the Appendix prepared for this appeal as "PC App."
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(Id. at 89.) The chronological case summary entry for October 4, 2001 states: Defendant's Objections to Appointment of Special Judge overruled. Judge Heffelfinger appointment was made under I.C. 33-5-25.3-10. Judge Heffelfinger agreed to try the cause herein with Judge McIntosh's consent. Counsel for Defendant was informed that Judge Heffelfinger would be Judge as the date of trial was changed to meet Counsel's schedule at a time when Judge McIntosh would be unavailable. (Id. at 5.) The trial commenced as scheduled before Judge Heffelfinger. The jury found Hodson guilty as charged, and Hodson was sentenced to an aggregate term of fifty years. On direct appeal, Hodson raised three issues: (1) whether the trial court committed reversible error by denying his motion to suppress his confession; (2) whether the trial court erred in the finding and weighing of aggravating and mitigating factors; and (3) whether his sentence was manifestly unreasonable. We affirmed. Hodson v. State, No. 35A02-0201-CR-25 (Ind. Ct. App. Aug. 15, 2002), trans. denied. On April 7, 2008, Hodson filed a petition for post-conviction relief, raising three issues: a. Mr. Hodson was prosecuted under a statute that was promulgated by a penal code adopted by the State in violation of Article 1,

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