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Published by the Indiana Office of Court Services

State v. West, No. 45A03-1003-PC-213, __ N.E.2d __ (Ind. Ct. App., Dec. 20, 2010)

December 28, 2010 Filed Under: Criminal Tagged With: Appeals, J. Sharpnack

SHARPNACK, S.J.
Before addressing West’s contentions, we will address the State’s contention that the issue has been waived. The State argues that West failed to enter the transcript from the original proceedings into evidence and that the trial court erred in taking judicial notice of the transcript. In support of its contention, the State cites State v. Hicks, 525 N.E.2d 316, 317 (Ind. 1998), and related cases, for the proposition that a post-conviction court cannot take judicial notice of the transcript of evidence absent exceptional circumstances, as the transcript must be entered into evidence in the same manner as other exhibits.
In Hicks, our Supreme Court held that the post-conviction court’s decision to take judicial notice of prior proceedings was warranted. In so holding, the Court held that the judge “was thoroughly justified in taking judicial notice of the proceedings which in fact occurred in his court, which by a more extravagant use of judicial time would have led to the same result . . . his practical handling of the situation was an economical use of judicial time and saved needless time and expense to both sides of the litigation.” Id. at 318.
Here, the transcript of the prior proceeding had not been received from the clerk’s office by the date of the post-conviction hearing. The post-conviction court, anticipating West’s request to enter the transcript into evidence, a request which was indeed made soon thereafter, accepted the then-unavailable transcript into evidence with the permission of both West and the State. Following the lead of our Supreme Court in Hicks, we recognize that the post-conviction court was justified in taking judicial notice of the transcript under the exceptional circumstances before the court. Thus, we turn to the merits of the issues.
KIRSCH, J., and MATHIAS, J., concur.

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