                                                                                    FILED
                                                                               May 04 2018, 8:51 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Ellen M. O’Connor                                         Curtis T. Hill, Jr.
      Marion County Public Defender Agency                      Attorney General of Indiana
      Indianapolis, Indiana
                                                                Lee M. Stoy, Jr.
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Allan Moore,                                              May 4, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1708-CR-1712
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Amy Barbar,
      Appellee-Plaintiff                                        Magistrate
                                                                Trial Court Cause No.
                                                                49G02-1501-F5-903



      May, Judge.


[1]   Allan Moore appeals the revocation of his probation and the order that he serve

      his suspended sentence. He argues the manner in which his probation was

      revoked violated Indiana Code section 35-38-2-3 and his right to due process.

      We affirm.


      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1712 | May 4, 2018                            Page 1 of 12
                                Facts and Procedural History
[2]   On October 28, 2015, Moore pled guilty to Level 5 felony burglary. 1 The court

      imposed a sentence of 1137 days, with 433 days executed, 704 days suspended,

      and 365 days on probation. Because Moore had served 325 days and earned

      108 credit days before sentencing, he was released to probation upon

      sentencing.


[3]   On December 16, 2015, the State filed a first notice of probation violation that

      alleged Moore was charged on December 10, 2015, with Class B misdemeanor

      possession of marijuana 2 for alleged possession that occurred on December 7,

      2015. The notice indicated Moore was being held in Marion County Jail.


[4]   On December 28, 2015, the State filed an amended notice of probation

      violation indicating that, while Moore’s charge of marijuana possession was

      still pending, Moore had been released from custody on December 15, 2015.

      The notice also alleged Moore was arrested on December 20, 2015, and

      charged the next day with Level 3 felony robbery, 3 Level 5 felony carrying a

      handgun after conviction of a felony, 4 Level 6 felony auto theft, 5 Level 6 felony




      1
          Ind. Code § 35-43-2-1 (2014).
      2
          Ind. Code § 35-48-4-11 (2014).
      3
          Ind. Code § 35-42-5-1 (2014).
      4
          Ind. Code § 35-47-2-1 (2014).
      5
          Ind. Code § 35-43-4-2.5 (2014).


      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1712 | May 4, 2018    Page 2 of 12
      resisting law enforcement, 6 and Class A misdemeanor resisting law

      enforcement. 7 Moore “remain[ed] incarcerated” for those charges when the

      amended notice of probation violation was filed on December 28. (Appellant’s

      App. Vol. 2 at 110.)


[5]   On February 25, 2016, the State filed a second amended notice of probation

      violation that alleged: (1) Moore had pled guilty to his Class B misdemeanor

      possession of marijuana charge and was sentenced to time served; (2) Moore

      remained in jail for his December 21 charges of four felonies and a

      misdemeanor, which were scheduled for trial in April 2016; and (3) on January

      29, 2016, the State charged Moore with Class A misdemeanor battery resulting

      in bodily injury 8 for an incident that allegedly occurred on January 24, 2016.


[6]   On May 11, 2017, Moore and the State entered an agreement as to Moore’s

      December 21, 2015, charges: Moore would plead guilty to Level 3 felony armed

      robbery, and the State would dismiss the other four counts. Moore and the

      State further agreed the court would impose the following sentence:


                 11 year sentence w/5 years suspended. 4 years executed in the
                 Department of Corrections. 2 Years Community Corrections. 2
                 years probation. Restitution to [T.C.] in an amount TBD. No
                 contact with [T.C.]. All other aspects of the Defendant’s
                 sentence to be left to the discretion of the Court, after argument



      6
          Ind. Code § 35-44.1-3-1 (2014).
      7
          Id.
      8
          Ind. Code § 35-42-2-1 (2014).


      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1712 | May 4, 2018      Page 3 of 12
              by the parties. Should the Defendant violate the terms and
              conditions of his probation, the Court may order any or all of the
              suspended time to be executed.


      (Id. at 113) (errors in original) (emphasis removed).


[7]   When Moore was in court to submit that plea agreement and plead guilty to

      armed robbery, the following exchange occurred:


              THE COURT:          Now, also if you are out on probation . . . for
              a case and you commit a new offense, then any sentencing
              between all those cases would have to be served consecutively to
              each other, one after the other. Do you understand that?


              THE DEFENDANT:                     Yes ma’am.


              THE COURT:           And it looks like you have a probation matter
              that we’ll have to be determining at the time of sentencing,
              correct?


              THE DEFENDANT:                     Yes ma’am.


      (Supplemental Tr. Vol. II at 8-9.)


[8]   Then, on July 6, 2017, when the parties appeared for sentencing on the armed

      robbery and to deal with the alleged probation violation, the following

      exchange occurred:


              THE COURT:           Do you have any evidence you wish to
              present prior to sentencing [Defense Counsel]?




      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1712 | May 4, 2018    Page 4 of 12
        [DEFENSE] :           Your Honor, I did submit a four page article I
        believe on the 22 of June, about adolescent brain development. . .
        . [T]hat is the only evidence I wanna [sic] submit and that’s
        particularly focus [sic] on -- we have -- he has that probation
        violation pending.


        THE COURT:                Uh-hum.


        [DEFENSE]:         So that would just go to the argument for the
        sanction on the probation violation.


        THE COURT:        Okay. And remind -- let’s see. Judge
        Rothenberg took the plea. Was there any kind of understanding
        about what was going to happen on this probation violation?


        [DEFENSE]:                No it’s --


        [STATE]:                  No Judge.


        [DEFENSE]:                -- the sanction’s gonna [sic] be up to the
        court.


        THE COURT:         It was three hundred and sixty-five days non-
        reporting probation.


        [DEFENSE]:                Yes.


        THE COURT:           And back up time was seven hundred and
        four days it looks like.


        [DEFENSE]:                Yes.



Court of Appeals of Indiana | Opinion 49A02-1708-CR-1712 | May 4, 2018         Page 5 of 12
              [STATE]:                  Yes, Judge.


              THE COURT:         Okay. All right. State have any evidence
              you wanted to present?


              [STATE]:                  No Judge. No evidence. . . .


              THE COURT:          Okay. Does your client wish to make a
              statement to the court prior to sentencing?


              [DEFENSE]:                No Judge.


              THE COURT:                All right. Argument [Defense Counsel].


              [DEFENSE]:             Your Honor regarding the sanction for the
              probation violation. I would note that it was three hundred and
              sixty-five days of non-reporting probation. Mr. Moore as of
              today’s date is only nineteen years old. The reason I submitted
              this article is to give the court some insight perhaps information
              you already know about adolescent brain development and I
              wanted to point out a few areas of that article. I believe his
              young age at the time of both the probation offense and this
              offense should be taken into account in determining the
              appropriate sanction and rehabilitative efforts for Mr. Moore in
              the future. . . . I’m asking that you take -- find him in violation
              but put him on regular probation so that he can continue his step
              down [after prison and Community Corrections].


      (Tr. of Evidence Vol. II at 7-10.)


[9]   After hearing argument from the State, the trial court imposed sentence for the

      armed robbery and immediately addressed the probation violation:


      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1712 | May 4, 2018     Page 6 of 12
               Then on your probation matter given that you were only on
               probation for a few months, three months I think. Less than
               three months, when you committed an armed robbery, the court
               will find that you have violated your probation. I will revoke
               your probation and order that you serve the suspended sentence
               of seven hundred and four days in the Department of Corrections
               [sic].


       (Id. at 12-13.)



                                  Discussion and Decision
[10]   A probation revocation proceeding is civil in nature and a probationer is not

       entitled to all of the rights afforded to a criminal defendant. McCauley v. State,

       22 N.E.3d 743, 748 (Ind. Ct. App. 2014), reh’g denied, trans. denied. The due

       process requirements for probation revocation hearings are more flexible than

       in a criminal prosecution. Reyes v. State, 868 N.E.2d 438, 440 (Ind. 2007), reh’g

       denied. This flexibility allows courts to enforce lawful orders, address and

       offender’s personal circumstances, and protect public safety. Id. The specific

       rights required in revocation proceedings are: (1) written notice of the violation

       alleged; (2) disclosure of the State’s evidence; (3) opportunity to be heard and

       present evidence; (4) confrontation and cross-examination of witnesses; (5) a

       “neutral and detached” factfinder; and (6) a written statement of the reason

       probation is revoked. Parker v. State, 676 N.E.2d 1083, 1085 (Ind. 1997)

       (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). “Whether a party was

       denied due process is a question of law that we review de novo.” Hilligoss v.

       State, 45 N.E.3d 1228, 1230 (Ind. Ct. App. 2015).

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1712 | May 4, 2018     Page 7 of 12
[11]   Indiana codified the due process requirements for probation revocations in

       Indiana Code section 35-38-2-3. Parker, 676 N.E.2d at 1085. When a petition

       to revoke probation is filed, “the court shall conduct a hearing concerning the

       alleged violation.” Ind. Code § 35-38-2-3(d) (2015). Such a hearing requires

       evidence be presented in open court and the probationer is “entitled to

       confrontation, cross-examination and representation by counsel.” Ind. Code §

       35-38-2-3(f) (2015). In the alternative:


               A person may admit to a violation of probation and waive the
               right to a probation hearing after being offered the opportunity to
               consult with an attorney. If the person admits to a violation and
               requests to waive the probation violation hearing, the probation
               officer shall advise the person that by waiving the right to a
               probation violation hearing the person forfeits the rights provided
               in subsection (f) . . . .


       Ind. Code § 35-38-2-3(e) (2015).


[12]   Moore asserts the trial court either: (1) violated his right to a hearing under

       subsection (f), because no evidence was offered to prove Moore violated his

       probation; or (2) violated his right to be advised that, by admitting the violation,

       he was waiving his rights to the hearing under subsection (e). As a result, says

       Moore, he is entitled to a new hearing on whether his probation should be

       revoked. Under Moore’s specific facts and circumstances, we cannot agree.


[13]   Nearly thirty years ago, another probationer appealed under nearly identical

       circumstances, and he also alleged his statutory right to a hearing had been

       violated:

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1712 | May 4, 2018     Page 8 of 12
               Henderson had previously been convicted of forgery and
               sentenced to a term of five (5) years. The trial court suspended
               the sentence and placed Henderson on probation for a period of
               five (5) years.


               The State filed a petition to revoke probation on the basis of
               Henderson’s involvement in the instant burglary charge. The
               hearing on the petition to revoke was set for the same day
               Henderson was to be sentenced for the instant burglary
               conviction. The trial court sentenced Henderson on the instant
               case and then proceeded into the hearing on revocation of
               probation. Henderson requested a continuance to determine
               whether he was subject to revocation of probation and the court
               granted the continuance. At a subsequent hearing, the trial court
               found that the burglary of a dwelling conviction in the instant
               case constituted a violation of Henderson’s probation and
               accordingly revoked Henderson’s suspended sentence and
               probation and ordered that he serve the five (5) years
               consecutively to the sentence imposed for the burglary
               conviction.


               Henderson’s objections are that he was not given a sufficient
               hearing and . . . there was insufficient evidence to revoke his
               probation because no proof was made of the crime alleged to
               have constituted the violation of his probation, no proof was
               made of the original condition and the terms of probation
               imposed as a result of that conviction.


       Henderson v. State, 544 N.E.2d 507, 512 (Ind. 1989).


[14]   Our Supreme Court noted probationers do not have all the rights possessed by

       those who have not been convicted of a crime and, therefore, probation

       revocation proceedings do not have the same procedural and evidentiary rules

       as required prior to conviction. Id. at 512-13. In particular, the Court noted,
       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1712 | May 4, 2018     Page 9 of 12
       “while it is widely recognized that a trial court may not take judicial notice of

       its own records in another case previously before the court even on a related

       subject with related parties, this rule should not be fully applicable in probation

       revocation hearings.” Id. at 513 (quoting Szymenski v. State, 500 N.E.2d 213,

       215 (Ind. Ct. App. 1986) (internal citation omitted), reh’g denied). Based

       thereon, the Court held: “The burglary conviction [for which the trial court had

       sentenced Henderson] provided grounds supporting the trial court in its finding

       that Henderson had violated his probation.” Id.


[15]   Here, the trial court deciding whether Moore violated his probation by

       committing armed robbery was the very same court that had just sentenced

       Moore for armed robbery based on Moore’s plea of guilty to that crime.

       Henderson held a trial court considering a probation revocation can take notice

       of a conviction and sentence the court had entered for the same defendant, id. at

       513, and Henderson so held during a time when Indiana had a rule against courts

       taking judicial notice of their own records. Id. As Indiana’s evidentiary rules

       now explicitly permit courts to take judicial notice of their own records, see

       Indiana Rule of Evidence 201 (2014), we have no hesitation holding the trial

       court could take judicial notice of Moore’s new conviction and sentence for

       armed robbery when it was deciding, in the same hearing, whether to revoke

       Moore’s probation from another cause number based on his alleged

       commission of the same armed robbery for which the conviction and sentence

       were entered.




       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1712 | May 4, 2018   Page 10 of 12
[16]   If Moore was not happy that the court was taking judicial notice of his

       conviction, via guilty plea, of a new crime, he could have objected at the

       hearing. Evidence Rule 201(e) states: “If the court takes judicial notice before

       notifying a party, the party, on request, is still entitled to be heard.” If a party

       wishes to challenge the “propriety of taking judicial notice and the nature of the

       fact to be noticed,” id., the party needs only make a “timely request.” Id.

       Moore made no such timely request. Instead, his counsel simply asked the

       court to “find him in violation,” (Tr. of Evidence Vol. II at 10), and consider an

       article about adolescent brain development as it decided the sanction to impose

       for that probation violation. Accordingly, any objection to the court taking

       judicial notice of his new conviction was waived for appeal. See In re Paternity of

       P.R., 940 N.E.2d 346, 350 (Ind. Ct. App. 2010) (“The fact that Mother is now

       appealing the trial court’s action does not constitute a timely request for an

       opportunity to be heard pursuant to Rule 201(e). Instead, she had to make that

       request to the trial court.”).


[17]   During the combined sentencing and probation revocation hearing, Moore was

       given an opportunity to present evidence and argument. (See Tr. of Evidence

       Vol. II at 7-10.) Moore does not suggest that he was unaware of the probation

       violation alleged or that his factfinder was not “neutral and detached.” Parker,

       676 N.E.2d at 1085. Because the trial court could take judicial notice of

       Moore’s new conviction, which was based on Moore’s plea of guilty to a new

       crime, there was no witness to be cross-examined. Under these circumstances,

       Moore cannot demonstrate his probation was revoked in a manner that violated


       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1712 | May 4, 2018      Page 11 of 12
       Indiana Code section 35-38-2-3 or Moore’s right to due process. See Henderson,

       544 N.E.2d at 512-13 (holding revocation was “not error” under substantially

       similar circumstances). Accordingly, we affirm.


[18]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1712 | May 4, 2018   Page 12 of 12
