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