Young v. State
| Decision Date | 30 December 1980 |
| Docket Number | No. 2-979A271,2-979A271 |
| Citation | 413 N.E.2d 1083 |
| Parties | Luther YOUNG, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Robert W. Hammerle, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., John K. Silk, Deputy Atty. Gen., Indianapolis, for appellee.
Luther Young (Young) challenges the revocation of the suspension of sentences We affirm in part and reverse and remand in part.
imposed following his guilty plea to the charges of Unlawful Use of a Credit Card and Uttering a Forged Instrument.
The evidence most favorable to the State indicates the following:
On September 2, 1976, Young was charged by information with Unlawful Use of a Credit Card and Uttering a Forged Instrument. On November 3, 1976, Young entered a guilty plea to both charges, and was given two concurrent sentences of one year, and two to fourteen years. However, following a hearing held pursuant to Young's Petition for Treatment In Lieu of Sentencing, the sentences were held in abeyance pending a report from the Department of Mental Health.
At a subsequent hearing, held December 17, 1976, the court found Young to be a drug abuser and likely to be rehabilitated through treatment. The court therefore committed Young to the Indiana Department of Mental Health "for a period not to exceed three years or until further order." (R. at 62).
Young progressed relatively well during his in-patient treatment. After about one year as an in-patient, Young became an out-patient at an Indianapolis facility, and continued to adhere to his probationary drug treatment program for roughly five more months. He was arrested for robbery, however, on June 23, 1978.
The record in this case includes a chronological compilation of correspondence and pleadings relating to Young's criminal history in the Marion County Superior Court, Criminal Division 2, resulting from the September, 1976 charges involving the credit card. Some of those records (Notice of Probation Violation; Amended Notice of Probation Violation), also contain references to other convictions of the Defendant, including Attempted Voluntary Manslaughter and two counts of theft from Johnson County for which Defendant was convicted December 14, 1978. With the exception of the Johnson County theft convictions, all of Defendant's other appearances in the courts occurred in Marion Superior Court, Criminal Division 2.
On May 15 and May 22, 1979, a Probation Violation Hearing was held in Marion Criminal Court. During that hearing, the State sought to introduce evidence of Defendant's prior convictions, sentences, and probation through the testimony of Young's probation officer, and one of the supervisors of the drug rehabilitation program Young was enrolled in. Defense counsel made continuing hearsay objections to the testimony of these individuals, arguing that they had no firsthand knowledge of the convictions or terms of probation. All such objections were overruled, and the previously suspended sentences for Unlawful Credit Card Use and Uttering a Forged Instrument were imposed.
Defendant appeals from revocation of his probation.
Defendant raises the following issues on appeal:
1. Does the record establish Young's prior sentences and probation history?
2. Were the conditions of Young's probation too vague to be applicable?
3. Did the evidence support the finding that Young violated the conditions of his probation?
4. Did the evidence support the finding that Young was convicted of another crime prior to the expiration of his probation?
5. Did the court properly sentence Young by ordering his previously suspended sentences to "run consecutively to any other sentences he may be serving?
We affirm the trial court on issues one through four, and remand for further findings regarding issue five.
With the exception of the Johnson County Theft convictions, all of Defendant's involvement with the prosecutorial authorities occurred in the Marion County Superior Court, Criminal Division 2. The record in this case contains references to other prosecutions involving the same defendant in the same court. Although defense counsel interposed hearsay objections to the testimony produced by the State, and although those objections were cogent as to their hearsay character, it is well established that a court judicially knows its own records. Starkie v. State (1943), 113 Ind.App. 589, 49 N.E.2d 968.
As to the matters involving the prosecution of Young for the 1976 charges of false credit card use and uttering a forged instrument, "The ... court takes judicial knowledge of the facts disclosed by the record in any given case." State v. Simpson (1906), 166 Ind. 211, 76 N.E. 544, 545, reh. at 166 Ind. 215, 76 N.E. 1005. Furthermore, the commentators have recognized that "it is settled, of course, that the courts, trial and appellate, take notice of their own respective records in the present litigation, both as to matters occurring in the immediate trial, and in previous trials or hearings," McCormick, Evidence, 2d Ed. § 330 at 766 (1972). (emphasis added.)
Because the court will take judicial notice of earlier determinations involving the same parties which are vital to the determination of the present action, Ensor v. Bennett (1921), 76 Ind.App. 467, 132 N.E. 379, any misconduct involving Defendant aired in Judge Brewer's court was properly within the evidence considered by the trier of fact at the revocation hearing. Additionally, because there is a principle of law to the effect that the court may hear evidence in order to inform itself of that which it takes judicial knowledge, Apple v. Greenfield Banking Co. (1971), 255 Ind. 602, 266 N.E.2d 13, there was no error in allowing the State to examine correction Department employees as to information which, while hearsay to them, was judicially noticed by the court. So there was evidence properly before the court, except for the Johnson County conviction, that Defendant violated the terms of his probation.
Defendant's second alleged issue, pertaining to the vagueness of the terms of his probation, must also fail. The order committed Young to the Department of Mental Health, "for a period not to exceed three years or until further order of (the committing) court." R. at 62. Clearly, such an order places Defendant under the supervision of the Department. Young knew that under their supervision he was to attend certain out-patient meetings. This he failed to do. Furthermore, he was arrested for robbery on June 23, 1978, well within the three year probationary period.
Because the initial commitment came from, and all subsequent correspondence from the Department of Mental Health regarding Young's progress came into the same court which revoked his probation, judicial notice was properly taken of both the terms of the probation and the violations thereof.
Thus, we affirm the trial court's findings in issues one through four, supra.
ISSUE 5
We must hold differently, however, as to Defendant's issue number five. A trial court has no authority to order the previously suspended sentences to run consecutive to any other sentence. 1 Consecutive sentences must be authorized by statute. Williams v. State (1977), Ind., 366 N.E.2d 642; Baldock v. State (1978), Ind.App., 379 N.E.2d 539. At the time of Young's convictions for Unlawful Use of a Credit Card and Uttering a Forged Instrument there was no statute allowing previously suspended sentences, imposed as the result of a probation violation, to run consecutive to a sentence imposed for an offense committed during the probation and prior to revocation. The existing law, which would require consecutive sentences, I.C. 35-50-1-2 (Burns Code Ed., Repl.1979), is not applicable. Without consideration of an ex post facto question, the savings clause of the new penal code of which I.C. 35-50-1-2 is a part provides:
"(a) Neither this act nor Acts 1976, P.L. 148 affects:
(1) rights or liabilities accrued;
(2) penalties incurred; or
(3) proceedings begun;
before October 1, 1977. Those rights, liabilities, and proceedings are continued, and penalties shall be imposed and enforced as if this act and Acts 1976, P.L. 148 had not been enacted."
Acts 1977, P.L. 340, Sec. 150, p. 1611.
The probation revocation is a continuation of the same proceeding which...
To continue reading
Request your trial
-
McCann v. State
...post facto prohibition of the constitutions. Cf. Dolan v. State, (1981) Ind.App., 420 N.E.2d 1364. Appellant relies upon Young v. State, (1980) Ind.App., 413 N.E.2d 1083 in support of this claim. There the court imposed a sentence following revocation of probation, but delayed commencement ......
-
Castro v. Castro, 3-781A188
...31-1-11.5-17(a) and, thereby, prevent child support payment disputes.3 A court judicially notices its own records. Young v. State (1980), Ind.App., 413 N.E.2d 1083; Starkie v. State (1943), 113 Ind.App. 589, 49 N.E.2d 968.4 A certified copy of the support payment record may be admitted to t......
-
State v. Hicks
...(1983), Ind.App., 458 N.E.2d 245, 250, citing Apple v. Greenfield Banking Co. (1971), 255 Ind. 602, 266 N.E.2d 13. In Young v. State (1980), Ind.App., 413 N.E.2d 1083, we spoke of what "own records" can "[I]t is settled, of course, that the courts, trial and appellate, take notice of their ......
-
Frazier v. State
...convictions when, at the time of the guilty plea, sentence had not yet been imposed upon the second offense. Also cf. Young v. State (1980), Ind.App., 413 N.E.2d 1083; Banton v. State (1979), 180 Ind.App. 698, 390 N.E.2d It is also consistent with the premise that criminal laws should be st......