MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Nov 08 2019, 5:52 am

court except for the purpose of establishing                                 CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Cynthia M. Carter                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Oscar Iraheta-Rosales,                                  November 8, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-PC-327
        v.                                              Appeal from the
                                                        Marion Superior Court
State of Indiana,                                       The Honorable Mark D. Stoner,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable
                                                        Jeffrey L. Marchal, Judge Pro
                                                        Tempore
                                                        Trial Court Cause No.
                                                        49G06-0807-PC-165849



Altice, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019                  Page 1 of 19
                                             Case Summary
[1]   Oscar Iraheta-Rosales pled guilty, without a plea agreement, to two counts of

      Class A felony child molesting and one count of Class C felony child molesting.

      He filed a direct appeal asserting that his sentence was inappropriate, and this

      court affirmed by memorandum decision. Following the denial of his petition

      for post-conviction relief, Iraheta-Rosales appeals and raises three issues that we

      consolidate and restate as:


              I. Did Iraheta-Rosales receive ineffective assistance of trial
              counsel?


              II. Was the judge who presided at the post-conviction
              evidentiary hearing validly appointed by the presiding judge?


[2]   We affirm.


                                   Facts & Procedural History
[3]   The facts of Iraheta-Rosales’s offense as summarized on direct appeal are as

      follows:


              On or about July 7, 2008, Iraheta-Rosales took several children
              fishing at Eagle Creek Park in Indianapolis. At some point
              during the outing, Iraheta-Rosales led then-eleven-year-old I.A.
              away from the group. He then proceeded to fondle I.A.’s penis
              before telling I.A. to undress. Once I.A. had undressed, Iraheta-
              Rosales inserted his finger and then his penis into I.A.’s anus.


              Upon questioning, Iraheta-Rosales claimed that I.A. had fondled
              him. He also admitted to inserting his finger into I.A.’s anus.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019   Page 2 of 19
      Iraheta-Rosales v. State, No. 49A02-0905-CR-405, at *1 (Ind. Ct. App. Jan. 29,

      2010). On July 16, 2008, the State charged Iraheta-Rosales in this case with

      two counts of Class A felony child molesting and one count of Class C felony

      child molesting under Cause Number 49G06-0807-FA-165849 (Cause 849). In

      September 2008, the State charged Iraheta-Rosales with two counts of Class A

      felony child molesting and three counts of Class C felony child molesting under

      Cause Number 49G06-0809-FA-206229 (Cause 229) relative to his conduct

      with another child, H.I. Iraheta-Rosales hired a private attorney, Jesse

      Coleman, to represent him in both Cause 849 and Cause 229.


[4]   In Cause 849, Coleman failed to appear for an October 24, 2008 hearing. He

      was late to appear at an October 29, 2008 child hearsay hearing, and it was

      rescheduled to November 12. Coleman then failed to appear for a January 20,

      2009 pretrial conference. Neither Coleman nor Iraheta-Rosales, who was in

      jail, appeared for jury trial on February 23, 2009, and the matter was continued

      due to a congested court calendar and reset for March 23, 2009. Coleman

      appeared for a final pretrial conference on March 17 at which the jury trial was

      confirmed for March 23 at 8:45 a.m. Iraheta-Rosales appeared in person on

      March 23 for trial, as did the State, witnesses, forty jury pool members, and two

      interpreters. 1 The record reflects that Coleman was not present at 9:02 a.m. and

      still was not present at 9:13 a.m., causing the trial court to issue an arrest




      1
       The record indicates that both Cause 849 and Cause 229 were set for trial on March 23, 2009, with Cause
      849 to be tried first.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019               Page 3 of 19
      warrant for him. The record reflects that Iraheta-Rosales was dressed in jail

      attire and did not have any clothes for trial. The trial court recessed and, upon

      resuming on the record, Coleman was present. 2 Coleman did not have an

      interpreter with him to converse with his client but the court allowed Coleman

      to use one of the court’s certified interpreters, and Coleman did not bring

      clothes for Iraheta-Rosales to wear for trial.


[5]   Coleman confirmed that the defense was “ready to proceed” and stated that

      Iraheta-Rosales wanted to withdraw his not guilty plea and enter a plea of

      guilty on all charges without a plea agreement. Prior Transcript at 77-73.

      Because there was some discussion as to whether Iraheta-Rosales intended to

      plead guilty to pending charges in both Cause 849 and Cause 229, Coleman

      conferred off-record with Iraheta-Rosales.


[6]   When the cause resumed, Coleman asked the court to continue Cause 229, but

      Iraheta-Rosales then stated, “I want the two cases to be done together” and “I

      want to go ahead with both cases.” Id. at 77. Thereafter, Coleman told the

      court, “He withdraws his previously entered plea of not guilty to both cases,

      and enters a plea of guilty to both cases.” Id. at 78. Iraheta-Rosales was asked

      and confirmed that he “wish[ed] to do that without the benefit of a plea

      agreement.” Id. The trial court asked the State about any plea offer that had

      been made and the prosecutor advised that a plea offer had been made that



      2
       The transcript of a contempt hearing reflects that Coleman arrived “shortly after 9:15.” Prior Transcript at
      109.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019                    Page 4 of 19
      morning under which Iraheta-Rosales would plead guilty to one count of Class

      A felony child molesting in Cause 849 and another count of Class A felony

      child molesting in Cause 229, with a thirty-year executed sentence in Cause 849

      and a consecutive sentence of not more than thirty years in Cause 229. 3

      Iraheta-Rosales told the trial court that he did not want to accept the State’s

      offer. The trial court explained to Iraheta-Rosales that, by rejecting the State’s

      offer, he was exposing himself to a longer sentence, but Iraheta-Rosales

      confirmed he wished to proceed without the benefit of a plea agreement.


[7]   The court engaged in extensive guilty plea questioning with Iraheta-Rosales,

      including asking him “Are you pleading guilty in any way because you believe

      your attorney is not ready for trial today?” and Iraheta-Rosales replied, “No.”

      Id. at 86. The court told Iraheta-Rosales that it wanted “to make sure that you

      understand the sentencing ranges that you are facing here” and told him that,

      under Cause 849, he was facing a maximum one-hundred and eight years, and

      under Cause 229, he was facing up to one-hundred and twenty-four years. Id.

      at 85. Iraheta-Rosales confirmed repeatedly that he wished to proceed without

      a plea agreement. The court also explained to Iraheta-Rosales that, although he

      was a citizen of El Salvador, he would most likely need to serve his sentence

      first before he would be deported, and the court asked, “In other words, you’re

      not pleading guilty in the belief that we’ll simply send you back to your own



      3
        The record also reflects that, according to Coleman, he had spent several hours with Iraheta-Rosales at the
      jail several days prior, negotiating and discussing a different plea agreement, which ultimately Iraheta-
      Rosales did not accept. Prior Transcript at 112.

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019                   Page 5 of 19
      country, are you?” and Iraheta-Rosales confirmed that he was not pleading

      guilty for that reason. Id. at 93.


[8]   The trial court read the charging information of Cause 849, and Iraheta-Rosales

      stated his intention to plead guilty to those charges. The trial court then did

      likewise for Cause 229 and at the conclusion asked Iraheta-Rosales if he was

      pleading guilty to those charges, and Iraheta-Rosales replied, “No.” Id at 99.

      The trial court, confused by this response, gave Coleman time to confer with

      Iraheta-Rosales off the record, and when the matter resumed, Coleman stated,

      “[H]e’s not pleading guilty to 229.” Id. at 101. After receiving additional

      unclear answers from Iraheta-Rosales about which charges he was pleading

      guilty to, the trial court asked Iraheta-Rosales, “Are you satisfied with the

      services of your attorney, Mr. Coleman?”, and Iraheta-Rosales stated that he

      was. Id. at 102. The court also asked, “Is there anything you think your

      lawyer should have done for you that he didn’t do?” and Iraheta-Rosales

      replied, “No, Your Honor.” Id. After the State read a factual basis involving

      the acts occurring with the child victim, I.A. (Cause 849), Iraheta-Rosales

      confirmed that the facts as read were the truth and that he desired to plead

      guilty. The trial court accepted his plea of guilty and ordered a presentence

      investigation report in Cause 849, and the court continued Cause 229 at

      Iraheta-Rosales’s request.


[9]   At the April 9, 2009 sentencing hearing in Cause 849, the trial court noted that

      Iraheta-Rosales had entered the country illegally from El Salvador, and his

      work permits had expired. The trial court found as mitigating that he had no

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019   Page 6 of 19
       prior criminal history and had been molested as a child and found as

       aggravating that he had violated a position of trust. The court imposed a

       sentence of forty years, with ten years suspended, on Count I, the same

       sentence on Count II, and five years on Count III, with the sentences to run

       concurrently, for an aggregate executed sentence of thirty years. Coleman

       withdrew as counsel at the conclusion of the guilty plea hearing, and the trial

       court appointed a public defender for purposes of appeal. 4


[10]   On March 7, 2018, Iraheta-Rosales by counsel filed a petition for post-

       conviction relief, alleging that in Cause 849: (1) his trial counsel, Coleman,

       provided ineffective assistance of counsel and violated the Sixth Amendment to

       the United States Constitution; and (2) Coleman’s representation violated

       Indiana’s right to effective representation under Article 1, Section 13 of the

       Indiana Constitution and Indiana Due Course of Law provision, Article 1,

       Section 12. Iraheta-Rosales alleged:


                Trial Counsel made numerous unprofessional mistakes. Upon
                information and belief, those mistakes include, but are not
                limited to: (1) Trial Counsel failed to explain the charges to his
                Client; (2) Trial Counsel failed to research the case and prepare a
                strategy for defending the case; (3) Trial Counsel failed to
                subpoena witnesses for the Jury Trial; (4) Trial Counsel failed to



       4
        In April 2010, Cause 229 proceeded to bench trial, where Iraheta-Rosales was represented by a public
       defender. The trial court found Iraheta-Rosales guilty of two counts of Class A felony child molesting and of
       one count of Class C felony child molesting, and the court found him not guilty of the two remaining counts.
       The court sentenced him to twenty-five years for each Class A felony and three years for the Class C felony,
       ordering the sentences to run concurrently. Iraheta-Rosales filed a direct appeal, challenging admission of
       evidence at trial, and this court affirmed his convictions in an unpublished decision. Iraheta-Rosales v. State,
       No. 49A05-1005-CR-302 (Ind. Ct. App. Dec. 14, 2010).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019                     Page 7 of 19
               appear for multiple court proceedings; (5) Trial Counsel failed to
               secure clothing for his client to wear at trial; and (6) Trial
               Counsel failed to appear at the appointed time for the Client’s
               Jury Trial, leaving the Client high and dry with no explanation
               and no jury clothes, which resulted in the Court issuing a warrant
               for Trial Counsel’s arrest; and (7) Trial Counsel failed to
               negotiate a plea agreement for his Client.


       Appellant’s Appendix Vol. 2 at 16-17. Iraheta-Rosales argued in his petition that

       “this is a clear case of deficient performance,” asserting that counsel’s various

       failures to appear for hearings were not isolated mistakes but rather “exhibited a

       pattern of chronic neglect that detrimentally affected” Iraheta-Rosales’s case.

       Id. at 17. The State did not file an answer to the petition.


[11]   On September 20, 2018, an evidentiary hearing was held before Magistrate

       Jeffrey Marchal, sitting as judge pro tempore. Iraheta-Rosales appeared in

       person and with counsel, and the State appeared. The Record of Proceedings

       from Iraheta-Rosales’s direct appeal was admitted as an exhibit, and, at the

       request of the State and over Iraheta-Rosales’s relevancy objection, the court

       took judicial notice of Cause 229. The post-conviction court also took judicial

       notice of the trial court’s file of Cause 849 and of the fact that trial counsel

       Coleman died on December 18, 2017. Iraheta-Rosales testified that (1) he and

       his family hired Coleman and paid him $6000, (2) Coleman did not explain the

       pending criminal charges to him, did not explain the law, such as case law or

       statutes, did not subpoena any witnesses on his behalf, and did not discuss

       having proper clothes for jury trial. When asked if there were times that he

       came to court and his attorney, Coleman, did not, he replied, “Yes. Many

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019   Page 8 of 19
       times.” PCR Transcript at 7. Iraheta-Rosales testified that he had never been

       arrested before and was not familiar with the legal system. When asked on

       cross-examination about the charges he faced in Cause 849 – which was asked

       in response to his claim that Coleman did not explain the charges to him –

       Iraheta-Rosales replied “Child Molestation” and acknowledged that “the judge

       did explain what my charges were when I was here” in court. Id. at 10.


[12]   On January 10, 2019, the post-conviction court issued findings of fact and

       conclusions of law denying Iraheta-Rosales relief, including the following:


               42. The Petitioner’s testimony was not credible and was not
               persuasive as to any issue raised in this cause.


               43. The Petitioner presented no evidence to suggest that he had a
               viable defense to the crimes charged.


               44. The Petitioner did not establish that his attorney’s tardiness
               and prior failure to appear for certain hearings affected his
               decision to plead guilty.


               45. As found by the trial court, the Petitioner knowingly and
               voluntarily chose to waive his right to trial and plead guilty to all
               three charges without benefit of a plea agreement.


               46. The record contradicts the Petitioner’s assertion that but for
               Coleman’s tardiness, he would not have plead guilty and would
               have insisted on proceeding to trial.


               47. There is not a reasonable probability that the result would
               have been different if the Petitioner had gone to trial.


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019   Page 9 of 19
        48. The evidence does not support a finding that the Petitioner
        was prejudiced by Coleman’s late arrival for trial or for his failure
        to appear at prior proceedings.


                                               ***


        57. Although the record supports a determination that Coleman
        failed to appear or was tardy for several hearings, including the
        jury trial, this does not lead to the conclusion that if counsel had
        been more attentive and punctual, the outcome of the case would
        have been different.


        58. The record establishes that on the morning of trial Coleman
        consulted with his client for up to fifty minutes before the trial
        court was advised that both the prior and new plea offers were
        rejected and that the Petitioner wished to plead open to all
        charges.


        59. The record further establishes that the Petitioner entered into
        his guilty plea voluntarily and there was a factual basis sufficient
        to support the charges.


        60. Moreover, there is no evidence that the Petitioner was in any
        manner prejudiced by Coleman’s late arrival for trial or his
        failure to appear at prior hearings. As the Petitioner made an
        insufficient showing of prejudice, he has likewise failed to show
        that he received ineffective assistance of counsel. Segura [v. State,
        749 N.E.2d 496, 499 (Ind. 2001)]. The Petitioner is not entitled
        to relief on his claim.


Appellant’s Appendix Vol. 2 at 96, 98. The findings and conclusions were signed

by Judge Pro Tempore Marchal.



Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019   Page 10 of 19
[13]   On February 18, counsel for Iraheta-Rosales telephoned the post-conviction

       court and requested a copy of the order appointing Judge Marchal as judge pro

       tempore for the September 20, 2018 evidentiary hearing. The following day,

       the court emailed the requested order, in which the Honorable Mark Stoner, on

       September 20, designated and appointed Jeffrey Marchal as judge pro tempore

       for the date of September 20, 2018. On March 26, 2019, Iraheta-Rosales filed a

       Verified Motion to Correct Clerk’s Portion of Record, asserting, as is relevant

       here, that the parties were not notified on or before the date of the post-

       conviction hearing that Judge Marchal would be sitting as judge pro tem that

       date, that he typically presides over post-conviction matters in his capacity as

       magistrate, and that had Iraheta-Rosales been informed of the pro tem

       appointment, he would have objected and requested a continuance, arguing

       that he “should have been informed of the appointment[.]” Id. at 102. Iraheta-

       Rosales now appeals.


                                       Discussion & Decision

                            I. Ineffective Assistance of Counsel
[14]   A defendant who files a petition for post-conviction relief has the burden of

       establishing the grounds for relief by a preponderance of the evidence. Zagal v.

       State, 130 N.E.3d 601, 603 (Ind. Ct. App. 2019). By appealing a negative

       judgment, a petitioner faces a rigorous standard of review. Wesley v. State, 788

       N.E.2d 1247, 1250 (Ind. 2003). The denial of post-conviction relief will be

       affirmed unless, “the evidence as a whole leads unerringly and unmistakably to

       a decision opposite that reached by the post-conviction court.” Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019   Page 11 of 19
[15]   Iraheta-Rosales alleges that Coleman provided ineffective performance in

       violation of the Sixth Amendment to the United States Constitution and Article

       1, Section 13 of the Indiana Constitution. 5 We review claims of ineffective

       assistance of counsel based upon the principles enunciated in Strickland v.

       Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See

       Armstrong v. State, 932 N.E.2d 1263, 1268 (Ind. Ct. App. 2010). The defendant

       must prove that (1) counsel rendered deficient performance, meaning counsel’s

       representation fell below an objective standard of reasonableness as gauged by

       prevailing professional norms and (2) counsel’s deficient performance

       prejudiced the defendant, i.e., but for counsel’s errors, the result of the

       proceeding would have been different. Bobadilla v. State, 117 N.E.3d 1272, 1280

       (Ind. 2019). Failure to satisfy either prong causes the whole claim to fail.

       Hanks v. State, 71 N.E.3d 1178, 1183 (Ind. Ct. App. 2017), trans. denied. If it is

       easier to dispose of an ineffectiveness claim on the ground of lack of sufficient

       prejudice, that course should be followed. Armstrong, 932 N.E.2d at 1268.


[16]   This analysis applies equally to plea negotiations as to trial performance.

       Hanks, 71 N.E.3d at 1183. “A defendant shows prejudice from mis-advice

       during the guilty-plea stage by showing a reasonable probability that he would

       have rejected the guilty plea and insisted on going to trial instead.” Bobadilla,




       5
         As explained by our court in Hanks v. State, 71 N.E.3d 1178, 1183 (Ind. Ct. App. 2017), trans. denied, while
       the Sixth Amendment to the United States Constitution protects the right of an accused in a criminal
       prosecution to have the assistance of counsel for his or her defense, “[o]ur state constitution protects the same
       right.” 71 N.E.3d at 1183 (citing Ind. Const. Art 1, Section 13). And “[t]he assistance of counsel means the
       effective assistance of counsel.” Id. (citing Powell v. Alabama, 287 U.S. 45, 71 (1932)).

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019                    Page 12 of 19
       117 N.E.2d at 1284. Furthermore, “[d]efendants cannot simply say that they

       would have gone to trial, they must establish rational reasons supporting why

       they would have made that decision.” Id. There is a strong presumption that

       counsel rendered adequate assistance and used reasonable professional

       judgment. Timberlake v. State, 753 N.E.2d 591, 603 (Ind. 2001).


[17]   Here, Iraheta-Rosales argues that the post-conviction court erred when it

       determined that his trial counsel was not ineffective, asserting that Coleman’s

       performance was “both unprofessional and deficient,” which included but was

       not limited to, failing to appear for at least two court proceedings and arriving

       late for others, including the March 23 jury trial. Appellant’s Brief at 12. Iraheta-

       Rosales urges that Coleman’s representation did not consist of merely isolated

       mistakes, but rather “exhibited a pattern of chronic neglect” and that his

       “deficiencies were inexcusable[.]” Id. at 13, 18. We acknowledge that certain

       aspects of Coleman’s representation are troubling, but assuming without

       deciding that his performance was deficient, as Iraheta-Rosales claims, we find

       that he has failed to show prejudice.


[18]   Other than making general assertions that Coleman’s “pattern” of deficient

       representation “detrimentally affected” his case, or urging that “the logical

       conclusion is Iraheta-Rosales would have gone to trial but for this counsel’s

       deficient performance,” Iraheta-Rosales does not explain how his counsel’s

       performance resulted in prejudice to the outcome of his case. Id. at 13, 20.

       While Iraheta-Rosales testified at the post-conviction hearing, he never said –

       directly or indirectly – that but for counsel’s inadequate representation, he

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019   Page 13 of 19
       would not have pled guilty and would have proceeded to trial. And, according

       to our Supreme Court’s directive in Bobadilla, even if he had so stated, that

       alone would not have been enough, as Iraheta-Rosales needed also to show

       sufficient special circumstances to prove that, had he been properly advised or

       represented, he would have gone to trial. Bobadilla, 117 N.E.3d at 1285 (to

       establish prejudice in guilty plea context, defendants “must produce evidence

       supporting [] claims” that they would have gone to trial). 6 No such special

       circumstances were argued, or appear present, in this case.


[19]   To the extent that Iraheta-Rosales’s claim is that, due to Coleman’s failure to

       timely appear for trial and inadequate representation during plea negotiations,

       Iraheta-Rosales had to “take a ‘Mercy Plea’ . . . with no charges dismissed and

       no sentence reduction”, the record reflects that the State offered a plea

       agreement that morning of thirty years in Cause 849 with a capped thirty years

       in Cause 229. Appellant’s Brief at 18. Iraheta-Rosales repeatedly affirmed during

       the court’s thorough questioning that he desired to reject that offer and proceed

       without the benefit of an agreement. At the conclusion of a subsequent

       sentencing hearing, the court imposed a sentence of forty years, with ten years




       6
         Iraheta-Rosales observes that, here, the post-conviction court’s order, in setting out the law for ineffective
       assistance claims in the context of guilty pleas, stated that a post-conviction petitioner “must show a
       reasonable probability that he would not have been convicted if he had gone to trial.” Appellant’s Appendix
       Vol. 2 at 97 (citing Segura v. State, 749 N.E.2d 496, 499 (Ind. 2001)). Iraheta-Rosales correctly observes that
       the Bobadilla Court disapproved of dicta in Segura concerning consideration of the strength of the State’s case
       when evaluating prejudice and clarified that “the ultimate result at trial (conviction versus acquittal) is not the
       determinative factor in these prejudice inquiries[.]” Bobadilla, 117 N.E.3d at 1287. Although the trial court
       cited to the “would not have been convicted” language as reflecting the state of the law, we find that,
       considering the court’s analysis and the order in its entirety, any error was harmless.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019                     Page 14 of 19
       suspended, on each of the two Class A felony charges and five years on the

       Class C felony, with the sentences to run concurrently, for an aggregate

       executed sentence of thirty years.


[20]   The trial court concluded, and we agree, that “there is no evidence that

       Petitioner was in any manner prejudiced by Coleman’s late arrival for trial or

       his failure to appear at prior hearings[,]” and he has failed to show that he

       received ineffective assistance of trial counsel. 7 Appellant’s Appendix Vol. 2 at 98.

       Accordingly, we affirm the trial court’s determination that Coleman did not

       provide ineffective assistance of counsel. 8




       7
         Iraheta-Rosales raises the separate issue on appeal that the post-conviction court failed to rule on, or issue
       specific findings on, his ineffectiveness claim under the Indiana constitution and that it was required to do so
       under Post-Conviction Rule 1 § 6, providing that the court shall make specific findings of fact and
       conclusions of law on all issues presented. He maintains that remand is therefore necessary for the court to
       issue separate findings. We are not persuaded, however, that remand is warranted in this case. The post-
       conviction issue was whether Coleman provided ineffective assistance of counsel, and the post-conviction
       court addressed and rejected that claim, even if not addressing every argument raised by Iraheta-Rosales.
       Furthermore, Iraheta-Rosales has pointed us to no authority stating that federal and state constitutional
       ineffectiveness claims are distinct and require separate analysis. Indeed, we have found a number of cases
       where a defendant raised both a state and federal constitutional ineffectiveness claim, and the court analyzed
       the claims only under Strickland. See e.g., Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002); Armstrong v. State,
       932 N.E.2d 1263, 1268 (Ind. Ct. App. 2010) ; Shaw v. State, 898 N.E.2d 465, 467-68 (Ind. Ct. App. 2008),
       trans. denied; compare Hanks v. State, 71 N.E.3d 1178, 1189 (Ind. Ct. App. 2017) (finding that remand was
       necessary on petitioner’s voluntariness of guilty plea claim, where the post-conviction court analyzed
       ineffective assistance of counsel claim but did not issue findings on petitioner’s voluntariness claim, and
       voluntariness of plea “is distinct from ineffective assistance of counsel”), trans. denied.
       8
         We note that in his Reply Brief Iraheta-Rosales cites to United State v. Cronic, 466 U.S. 648, 662 (1984),
       where the United States Supreme Court created an exception to the Strickland inquiry, suggesting that in
       limited circumstances of extreme magnitude, “a presumption of ineffectiveness” may be justified and that
       such circumstances are, in and of themselves, “sufficient [to establish a claim of ineffective assistance]
       without inquiry into counsel’s actual performance at trial.” To the extent he is arguing that Coleman’s
       representation was ineffective under Cronic, we reject his argument. First, a party cannot raise an argument
       for the first time in a reply brief. Jones v. State, 22 N.E.3d 877, 881 n.4 (Ind. Ct. App. 2014). Second, we do
       not find that Coleman’s representation was the type of situation that would justify the Cronic presumption.
       Coleman did not provide a complete lack of representation. Coleman conducted discovery and appeared at
       some hearings including a child hearsay hearing and the record reflects that Coleman negotiated two plea

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019                    Page 15 of 19
                            II. Judge Pro Tempore Appointment
[21]   Iraheta-Rosales contends that the trial court erred when, without prior notice to

       the parties, Judge Marchal presided as judge pro tempore at the post-conviction

       evidentiary hearing. Ind. Trial Rule 63 provides the procedure by which a

       judge pro tempore may be appointed if the regular judge is unavailable and

       states in relevant part:


               A judge who is unable to attend and preside at his court for any
               cause may appoint in writing a judge pro tempore to conduct the
               business of this court during his absence. The written
               appointment shall be entered in the records of the court. When
               duly sworn, or without being sworn if he is a judge of a court of
               this state, the judge pro tempore shall have the same authority
               during the period of his appointment as the judge he replaces.


       T.R. 63(E).


[22]   On February 18, 2019, after receiving the post-conviction court’s January 10,

       2019 findings and conclusions denying relief, Iraheta-Rosales requested and

       received from the court a copy of the document appointing Judge Marchal as

       pro tem. In it, Judge Stoner appointed, on September 20, 2018, Jeffrey Marchal

       as judge pro tempore for that same date.


[23]   Iraheta-Rosales’s argument is that the parties were not notified that Judge

       Marchal – who typically presides over post-conviction matters in his capacity as




       agreements. While his representation may have been lacking in some respects, we do not find that this was
       the type of case to which Cronic applies.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019               Page 16 of 19
       magistrate – would be presiding as judge pro tempore. He argues, “Had

       Iraheta-Rosales received notice the elected Judge was not going to approve and

       countersign the Order, he would have objected and requested a continuance

       such that the elected Judge could render a final decision.” Appellant’s Brief at

       24. He urges that, in his case, such would have been reasonable because Judge

       Stoner was the presiding judge when Coleman failed to timely appear for jury

       trial on March 23 – leaving Iraheta-Rosales “high and dry” and appearing in

       “jail garb” – and he was the judge who issued the arrest warrant. Id.

       Effectively, Iraheta-Rosales is arguing that Judge Stoner was better suited to

       assess Coleman’s representation.


[24]   Iraheta-Rosales provides no authority for the proposition that any objection

       posed would have required Judge Marchal not to serve as pro tem. 9 At best,

       any request for a continuance would have been within the court’s discretion.

       Here, the allegations about Coleman failing to timely appear for jury trial,

       leaving Iraheta-Rosales waiting in jail garb, and Judge Stoner issuing an arrest

       warrant were well set out in the petition for post-conviction relief. Moreover,

       as the State observes, the direct appeal of Cause 849 was admitted as an exhibit,




       9
         In contrast, Indiana Code section 33-33-49-32(c) provides that “[a] party to a superior court proceeding that
       has been assigned to a magistrate . . . may request that an elected judge . . . preside over the proceeding
       instead of the magistrate. . . . Upon a request made . . . by either party, the magistrate . . . shall transfer the
       proceeding back to the superior court judge.” Iraheta-Rosales has provided us with no equivalent provision
       in the context of a judge pro tempore appointment.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019                      Page 17 of 19
       so Judge Marchal “had access to a complete transcript . . . where trial counsel’s

       tardiness was well-documented.” Appellee’s Brief at 25.


[25]   In challenging the appointment, Iraheta-Rosales also notes that the document

       appointing Judge Marchal as judge pro tempore was not entered in the

       Chronological Case Summary (CCS). However, the CCS entries on September

       20, 2018, the date of the post-conviction hearing, include:


                Hearing on Petition for Post-Conviction Relief (10:00 AM)
                (Judicial Officer: Marchal, Jeffrey L. – PT)


                Hearing Journal Entry (Judicial Officer: Marchal, Jeffrey L. –
                PT) Hearing Date: 9/20/18 Matter taken under advisement.
                Proposed findings and conclusions due by 12/13/18. Court to
                make ruling upon receiving findings and conclusions from
                parties.


       Appellant’s Appendix Vol. 2 at 11 (emphases added). Although T.R. 63(E)

       requires the written appointment to be entered in the record, we find the CCS

       entry adequately reflects that Judge Marchal was acting as pro tem that date. 10

       In sum, Judge Marchal was validly appointed, and we find no reversible error

       on this issue. 11




       10
          The CCS entry on January 10, 2019, the date of the order denying post-conviction relief, erroneously
       identifies the judicial officer as “Marchal, Jeffrey L. – MAG”, that is, a magistrate; however, he properly
       signed the findings and conclusions as “Judge Pro Tempore.” Id. at 12, 99.
       11
         We note that the “expiration of a judge pro tempore’s term does not necessarily end his or her authority,”
       and that “once a judge pro tempore has begun consideration of the case,” jurisdiction continued “as if he had
       been appointed special judge.” Douglas v. State, 643 N.E.2d 7, 9 (Ind. Ct. App. 1994). Thus, it was

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019                   Page 18 of 19
[26]   We affirm the post-conviction court’s denial of Iraheta-Rosales’s petition for

       post-conviction relief.


[27]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       appropriate for Judge Marchal to issue the findings and conclusions, and Judge Stoner’s approval thereof was
       not necessary.

       Court of Appeals of Indiana | Memorandum Decision 19A-PC-327 | November 8, 2019               Page 19 of 19
