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Appeals court rejects inmate’s probation violation argument

May 4, 2018

A Marion County man must remain incarcerated in the Marion County Jail after the Indiana Court of Appeals rejected his argument that his probation revocation rights were violated.

In Allan Moore v. State of Indiana, 49A02-1708-CR-1712, Allan Moore pleaded guilty to Level 5 felony burglary in October 2015 and was released to probation upon sentencing. But in December 2015, Moore was charged with multiple felonies and misdemeanors, so he was incarcerated in the Marion County Jail.

Moore eventually pleaded guilty to Class B misdemeanor possession of marijuana and Level 3 felony armed robbery and agreed to a four-year executed sentence, with two years in community correction and two years of probation. The court also found he violated his burglary probation by committing armed robbery, so he was ordered to serve his 704-day suspended sentence for the burglary conviction in the Department of Correction.

Moore appealed, arguing the Marion Superior Court violated his rights to a probation revocation hearing because the state either did not offer evidence to prove his violation or violated his right to be advised that admitting his violation would waive his rights to a hearing. Thus, Moore argued he was entitled to a new hearing, but the Indiana Court of Appeals disagreed in a Friday opinion.

The court reached its decision by relying on Henderson v. State, 544 N.E.2d 507, 512 (Ind. 1989), which “held a trial court considering probation revocation can take notice of a conviction and sentence the court had entered for the same defendant.”

“As Indiana’s evidentiary rules now explicitly permit courts to take judicial notice of their own records, 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 the his alleged commission of the same armed robbery for which the conviction and sentence were entered,” Judge Melissa May wrote Friday. “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.”

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