Jay E. Millen v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 22, 2017
• Docket: 84A05-1606-CR-1359
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Feb 22 2017, 6:08 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office Attorney General of Indiana Brooklyn, Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jay E. Millen, February 22, 2017 Appellant-Defendant, Court of Appeals Case No. 84A05-1606-CR-1359 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael R. Rader, Appellee-Plaintiff Judge Trial Court Cause No. 84D05-1105-FC-1611

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 84A05-1606-CR-1359 | February 22, 2017 Page 1 of 5 Case Summary The State filed a petition to revoke Jay E. Millen’s probation based on the

commission of new offenses; the trial court found that Millen violated his

probation, revoked it, and ordered him to serve the remainder of his previously

suspended sentence. Millen now appeals, arguing that there is no evidence in

the record that he committed the offenses during his probationary period. We

affirm.

Facts and Procedural History [1] In 2011, Millen pled guilty to Class C felony criminal confinement, Class D

felony strangulation, Class D felony intimidation, and Class A misdemeanor

domestic battery. In exchange, he received a ten-year sentence, all of which

was suspended to probation (minus credit time).

[2] Thereafter, the State filed a petition to revoke Millen’s probation, alleging that

he violated it by committing new offenses. The petition specifically alleged that

Millen committed, among other offenses, obstruction of justice and false

informing.

[3] The probation-revocation hearing was held in May 2016. At the beginning of

the hearing, defense counsel indicated that Millen was prepared to make “an

admission.” Tr. p. 3. When the trial judge asked if Millen was going to testify,

the State responded: “I think he’s willing to admit to the convictions and then

the testimony would just be regarding sentencing.” Id. at 3-4. However, in

Court of Appeals of Indiana | Memorandum Decision 84A05-1606-CR-1359 | February 22, 2017 Page 2 of 5 order to “alleviate” Millen from “having to make any admission,” the judge

said that he would instead take judicial notice of Millen’s December 2015

convictions for false informing and obstruction of justice in “Division 1”

“upstairs.” Id. at 4. When the judge made this announcement, it was apparent

that he had the Division 1 records before him. Id. (“I was going to say we

should have that, yes here’s the Division 1 case.”). Millen remained silent and

raised no objection to this procedure.

[4] The judge found that Millen violated his probation by virtue of his convictions

in Division 1 and then proceeded to disposition, where he revoked Millen’s

probation and ordered him to serve the remainder of his previously suspended

sentence.

[5] Millen now appeals.

Discussion and Decision [6] A trial court may revoke a person’s probation if the person violated a condition

of probation during the probationary period. See Ind. Code § 35-38-2-3(a).

Millen contends that “the record is devoid of any evidence that [he] was even

on probation at the time that he committed the offenses in question.”

Appellant’s Br. p. 8. Millen acknowledges that the trial court took judicial

notice of his false-informing and obstruction-of-justice convictions but

highlights that the court “did not take judicial notice of when the offenses were

alleged to have occurred.” Id. (emphasis added).

Court of Appeals of Indiana | Memorandum Decision 84A05-1606-CR-1359 | February 22, 2017 Page 3 of 5 [7] Indiana Rule of Evidence 201 permits courts to take judicial notice of certain

material, including facts “not subject to reasonable dispute” and facts “readily

determined from sources whose accuracy cannot reasonably be questioned.”

See Horton v. State, 51 N.E.3d 1154, 1160 (Ind. 2016). For years, Rule 201 did

not permit a trial court to take judicial notice of court records, even if they were

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

with related parties.” Id. (quotation omitted). But effective January 1, 2010,

amended Rule 201(b)(5) now permits courts to take judicial notice of “records

of a court of this state,” just like the trial court did here. Id.

[8] Nevertheless, Millen argues that the record does not indicate when the offenses

occurred. Our Supreme Court examined in Horton whether a trial court must

enter the judicially noted material into the record. The Court explained that

while the “best practice” is for the trial court to enter the material into the

record, that does not always happen. Id. When the court below fails to

incorporate the judicially noticed material into the record, there is no

impediment to judicial review when that material “is either common sense or

widely accessible,” such as when the material is court records accessible

through Indiana’s Odyssey case-management system. Id. at 1161. Our search

of Odyssey reveals that Millen was found guilty of false informing and

obstruction of justice under Cause No. 84D01-1410-MR-2583 in December

2015 and that the offenses occurred in June 2014, well within Millen’s ten-year

Court of Appeals of Indiana | Memorandum Decision 84A05-1606-CR-1359 | February 22, 2017 Page 4 of 5 probationary period.1 Moreover, when the trial court took judicial notice of

Millen’s convictions for false informing and obstruction of justice (without

objection from Millen), that notice was broad enough to include when the

offenses occurred. This is especially so because the judge had the Division 1

records before him at the time. We therefore affirm the revocation of Millen’s

probation.

[9] Affirmed.

Bradford, J., and Brown, J., concur.

1 Millen also argues that because he was appealing his false-informing and obstruction-of-justice convictions at the time of the probation-revocation hearing, the trial court could not use them to revoke his probation. Because Millen’s convictions were affirmed, we need not address this argument. See Millen v. State, No. 84A04-1602-CR-256 (Ind. Ct. App. Sept. 16, 2016).

Court of Appeals of Indiana | Memorandum Decision 84A05-1606-CR-1359 | February 22, 2017 Page 5 of 5