                                                      Nov 21 2014, 8:28 am


FOR PUBLICATION

ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

DERICK W. STEELE                             GREGORY F. ZOELLER
Deputy Public Defender                       Attorney General of Indiana
Kokomo, Indiana
                                             GEORGE P. SHERMAN
                                             Deputy Attorney General
                                             Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

DERIQ WATTERS,                               )
                                             )
      Appellant-Defendant,                   )
                                             )
             vs.                             )       No. 34A02-1403-CR-215
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )


                   APPEAL FROM THE HOWARD SUPERIOR COURT
                      The Honorable William C. Menges, Jr., Judge
                            Cause No. 34D01-0706-FA-467


                                 November 21, 2014

                             OPINION FOR PUBLICATION

MAY, Judge
          Deriq Watters appeals the revocation of his probation. We reverse.

                            FACTS AND PROCEDURAL HISTORY

          On June 26, 2007, Watters was charged with three counts of Class A felony dealing in

cocaine.1 Following a Recommendation of Plea Agreement, the court entered one conviction

of Class B felony dealing in cocaine. The court sentenced Watters to twenty years, with ten

years executed and ten years suspended.

          After being released to probation, Watters was allegedly arrested in Marion County.

When he was contacted by his probation officer, Megan Enright, he “repeatedly said that it

was not him and that the case was going to be dismissed.” (Tr. at 11.) On June 11, 2014, the

State filed a Petition to Revoke Suspended Sentence based on Enright’s belief that Watters

had committed a new offense.

          At the hearing, the State submitted two uncertified documents: an Abstract of

Judgment convicting Watters of Class B felony robbery in the Marion Superior Court, and a

purported plea agreement resolving that same cause. Watters objected to both arguing they

were inadmissible hearsay because they were uncertified. The court overruled Watters’

objections and entered the exhibits into evidence. After the hearing, the court ordered

Watters to serve the remainder of his suspended sentence in the Department of Correction.

                                    DISCUSSION AND DECISION

          Our standard of review of probation revocations is well-settled:

          A probation revocation hearing “is not to be equated with an adversarial
          criminal proceeding.” Cox v. State, 706 N.E.2d 547, 550 (Ind. 1999), reh’g

1
    Ind. Code § 35-48-4-1 (2012).
                                               2
       denied. Because probation revocation procedures “are to be flexible, strict
       rules of evidence do not apply.” Id.; see also Ind. Evidence Rule 101(c). The
       trial court may consider hearsay “bearing some substantial indicia of
       reliability.” Id. at 551. Hearsay is admissible in this context if it “has a
       substantial guarantee of trustworthiness.” Reyes v. State, 868 N.E.2d 438, 441
       (Ind. 2007), reh’g denied. A trial court “possesses broad discretion in ruling
       on the admissibility of evidence, and we will not disturb its decision absent a
       showing of an abuse of that discretion.” C.S. v. State, 735 N.E.2d 273, 275
       (Ind. Ct. App. 2000), trans. denied.

Peterson v. State, 909 N.E.2d 494, 499 (Ind. Ct. App. 2009). Watters asserts the State’s

evidence was inadmissible hearsay because the copies of the Abstract of Judgment and plea

agreement were not certified.

       Courts may take judicial notice of another county’s conviction in order to revoke

probation in the original county of conviction; however, the documents from the other county

must be reliable. Christie v. State, 939 N.E.2d 691, 693 (Ind. Ct. App. 2011). We have held

the “certification of the documents by the court provides substantial indicia of their

reliability.” Pitman v. State, 749 N.E.2d 557, 559 (Ind. Ct. App. 2001), trans. denied. In lieu

of certified copies, we have held an affidavit from the issuing agency satisfies the evidentiary

requirement for a hearing to revoke probation and proves the document’s underlying

“substantial trustworthiness.” Reyes, 868 N.E.2d at 442. Additionally, we have allowed

uncertified evidence of a polygraph report, but only to explain the testimony that followed.

Peterson, 909 N.E.2d at 499.

       In the case at hand, we do not have certified copies, affidavits, or testimony to

substantiate the exhibits offered into evidence. Enright testified that she had learned of

Watters’ arrest in Marion County, but she did not testify that she had been present at the

                                               3
signing of his plea agreement or at his conviction. The plea agreement is allegedly signed by

Watters, but no evidence was entered to substantiate that signature was Watters’ signature.

Enright did not testify that she had done anything to corroborate the validity of the documents

she received via email.

       While trial courts have the discretion to admit hearsay evidence at a probation

revocation hearing, the admission must not violate the due process standards provided by the

United States Supreme Court. See Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973) (when a

loss of liberty is at stake, the parolee is to be accorded due process). We decline to extend

the lowered bar for admission of hearsay at probation revocation hearings to include evidence

with no “indicia of reliability.” See Cox, 706 N.E.2d at 552 (court is not bound by the

hearsay exclusion rule, but the hearsay must be reliable). Although there is no bright line test

of this reliability, testimony of the parties directly involved, affidavits of parties directly

involved, and certified copies would have sufficed without putting an undue burden on the

State. As the State did not provide any of those indicia of reliability herein, we hold the

evidence was inadmissible. Cf. Reyes, 868 N.E.2d at 442 (affidavit proved document’s

trustworthiness). Accordingly, we reverse.

       Reversed.

VAIDIK, C.J., and FRIEDLANDER, J., concur.




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