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.
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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
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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).
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[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
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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).
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