Foley, J.
Coltin Drew Herzog (“Herzog”) appeals from the trial court’s order revoking his probation and ordering him to serve his previously suspended sentence in the Indiana Department of Correction (“the DOC”). Herzog presents two issues for our review, which we restate as follows: I. Whether the trial court violated Herzog’s due process rights because he claims that he was not provided written notice of a violation of probation; and II. Whether the trial court violated his due process rights because he asserts that the trial court failed to provide him with a written statement that sufficiently stated the reasons and evidence relied on for revoking his probation.
We affirm.
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Herzog argues that he was denied due process in the procedure utilized by the trial court in revoking his probation.
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Herzog first argues that he was denied due process because he contends that he was not provided written notice of the claimed violation of probation. As stated above, one of the minimum requirements of due process at a revocation hearing is “written notice of the claimed violations of probation.” Hammann, 210 N.E.3d at 831 (citations omitted)… “[T]he mere filing of a criminal charge against a defendant does not warrant the revocation of probation.” Jackson v. State, 6 N.E.3d 1040, 1042 (Ind. Ct. App. 2014). “Instead, when the State alleges that the defendant violated probation by committing a new criminal offense, the State is required to prove—by a preponderance of the evidence— that the defendant committed the offense.” Id. However, where the violation is based upon the commission of a crime, it is sufficient for the trial court to take judicial notice of the new criminal conviction under Indiana Evidence Rule 201. See Moore v. State, 102 N.E.3d 304, 309 (Ind. Ct. App. 2018) (affirming a probation revocation and finding no due process violation where the trial court took judicial notice of a conviction and sentence the court had entered for the same defendant).
Herzog contends that, although he received notice of the allegation that he had violated his rules of probation by “obtain[ing] a new case in 17D02-2405-MR-[ ]2 with charges pertaining to Murder[,]” he did not receive “notice of an allegation that he violated his rules of probation by having a criminal conviction while on probation,” because “no such allegation was made.” Appellant’s Br. pp. 8–9 (quoting Appellant’s App. Vol. II p. 239). He asserts that there is a significant difference between the allegation that he “obtained a new case,” which was the allegation contained in the petition to revoke his probation, and an allegation that he had a criminal conviction while on probation. Appellant’s App. Vol. II p. 239.
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Herzog relies on Gleason v. State, 634 N.E.2d 67 (Ind. Ct. App. 1994), for his contention that it was error for the trial court to revoke his probation based on a criminal conviction, when the petition to revoke probation alleged that he had “obtained a new case.” Appellant’s Br. p. 9. However, we find Gleason to be distinguishable. There, our court reversed a probation revocation that was based on a felony conviction from Michigan not identified in the petition, where the petition only alleged that Gleason had been arrested for criminal conduct in Michigan, which was a felony offense in Michigan but which conduct was likely not a crime under Indiana law. Gleason, 634 N.E.2d at 68.
In Gleason, it is unclear based on the scant facts provided whether the felony conviction that formed the basis of revocation was connected to the allegation of criminal behavior in the petition. Here, however, the allegation in the instant petition was that Herzog had been charged with new crimes pertaining to murder in cause number 17D02-2405-MR-2, and the trial court clearly revoked his probation based on the evidence of his conviction under the same cause number. Therefore, we find the situation that Herzog faced to be different from that in Gleason. However, we note that, to the extent that Gleason holds that such a minor variance between the language used in the petition giving notice of the alleged violation and the language used by the trial court for its reason for revocation, we disagree with the holding.
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The State requested that the trial court take judicial notice of the voluntary manslaughter conviction, and the trial court did so. Herzog presented no evidence rebutting the evidence that he had been convicted under cause number 17D02-2405-MR-2. Instead, he only objected to “the incorporation of all the evidence from trial towards the revocation of probation” without any explanation for the objection. Tr. Vol. II p. 16. Although Herzog asserts that there was a significant difference in the allegation that he obtained a new case while on probation and an allegation that he had been convicted of a crime while on probation and the proof required to establish each allegation, he does not elaborate as to what that differing evidence was or how he was at a disadvantage due to the procedure utilized. He further does not argue that he was not the subject of the charging information under cause number 17D022405-MR-2. Additionally, Herzog makes no argument that the trial court taking judicial notice of his conviction in the murder case violated Indiana Evidence Rule 201. Due process required that Herzog be apprised of the nature of the allegations against him such as to enable him to mount a meaningful defense. In light of the circumstances here, we do not find that Herzog’s due process rights were violated based upon his notice of the allegations.
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Having concluded there to be no due process violation based upon the procedures utilized in this case, we make two final observations. First, in almost all instances, a probation violation alleging the commission of a new offense will be filed at some point after the defendant is arrested on the new offense and prior to disposition of the new case. Therefore, most petitions will allege some variation of a new arrest, new charges, or a new case, rather than alleging a conviction that has not yet occurred. Requiring the State to amend a petition to allege that the arrest, new charges, or new case, is now a conviction, rather than merely proceeding on the petition that alleged a pending charge, amounts to merely a matter of form over substance rather than preserving due process.
Next, the slight variation in the language used in the petition alleging the probation violation from the language of the probation order and the language the trial court used to describe the violation is not substantial enough to generate due process concerns. Here, the probation order required that Herzog “remain free from any further criminal arrests or convictions[,]” and the petition alleged that he “obtained a new case in 17D02-2405-MR-[ ]2 with charges pertaining to Murder.” Appellant’s App. Vol. II pp. 207, 239. During Herzog’s initial hearing, the trial court advised Herzog of the nature of the charges by stating, “Paragraph 2 says you violated your rules by being charged in the new case, . . . 17D02-2405-MR-2, . . . that charge being Murder.” Tr. Vol. II p. 5. Finally, at the probation violation hearing, the trial court stated, “And the [c]ourt will take judicial notice of the judgment and conviction in 17D02-2405-MR-[ ].” Id. at 15. Despite the slight variations in the language used to describe what had occurred, it is clear that Herzog’s order of probation prohibited him from committing a new criminal offense while on probation, the probation violation petition alleged he had done so, and finally, the trial court concluded that he had done so.
Herzog next argues that his due process rights were violated because there was no written statement by the trial court as to the evidence relied on and the reasons for revoking his probation.
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Looking to the record in this case, we conclude that the written statement requirement was fulfilled in this case. Based on the written statement and the oral statement contained in the transcript, the trial court’s statements were sufficient to inform Herzog that his probation was being revoked and the reason for that decision and to ensure our accurate review of that decision. In its oral statement, the trial court informed the parties that it “will take judicial notice of the judgment and conviction in 17D02-2405-MR-[ ]2 [and] finds that that’s sufficient to find violation of the conditions” of Herzog’s probation. Tr. Vol. II p. 15. Such statement made it clear that the trial court was revoking Herzog’s probation because he engaged in criminal behavior and had new criminal charges and a new conviction based on those charges while he was on probation. We, therefore, conclude that the trial court did not violate Herzog’s due process rights in its fulfillment of the writing requirement.
Based on the above reasoning, we conclude that Herzog’s due process rights were not violated by the procedure utilized to revoke his probation.
Affirmed.
Vaidik, J., and Altice, J., concur.