Full Opinion

FILED Aug 18 2026, 9:13 am CLERK Indiana Supreme Court Court of Appeals and Tax Court IN THE Court of Appeals of Indiana Coltin Drew Herzog, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff August 18, 2026 Court of Appeals Case No. 25A-CR-3169 Appeal from the DeKalb Superior Court The Honorable Patrick L. Jessup, Judge Trial Court Cause No. 17D02-2109-F1-6 Opinion by Judge Foley Judges Vaidik and Altice concur. Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 1 of 15 Foley, Judge. [1] 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. [2] We affirm. Facts and Procedural History [3] On September 31, 2021, the State charged Herzog with Level 1 felony attempted murder and Level 1 felony burglary. On June 20, 2022, Herzog pleaded guilty to a lower charge of Level 4 felony burglary in exchange for the State’s dismissal of the attempted murder charge. The trial court sentenced Herzog to six years, with four years executed and two years suspended to probation. Among the conditions of his probation, Herzog was required to “remain on good behavior and remain free from any further criminal arrests or convictions throughout [his] probation period.” Appellant’s App. Vol. II p. 207. Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 2 of 15 [4] In September 2023, Herzog began his probation term. On May 31, 2024, the State filed a petition to revoke his probation, which alleged that he violated the rules of his probation when he “obtained a new case in l7D02-2405-MR-[ ]2 with charges pertaining to Murder.” Id. at 239. On July 8, 2024, the trial court held an initial hearing regarding the petition to revoke probation. At the hearing, Herzog confirmed that he had received a copy of the petition, and the trial court reviewed it with him, stating that the alleged violation was him “being charged in the new case . . . 17D02-2405-MR-2 . . . that charge being Murder.” (“murder case”). Tr. Vol. II p. 5. The trial court set the case for a pretrial conference to be held concurrently with the next pretrial conference in the murder case. [5] A concurrent pretrial conference for both Herzog’s murder case and probation violation was held on August 25, 2025. At the conclusion of the hearing, after confirming the trial date for the murder case, the trial court asked Herzog how he would like to proceed on the probation violation. Herzog’s attorney asked that the probation violation “continue to track along” with the murder case, and the trial court agreed to address it after the trial or reset it in the event of a not guilty verdict. Id. at 12. Herzog’s murder trial was held on September 8– 12, 2025, and at the conclusion, the jury found Herzog guilty of the lesser included charge of voluntary manslaughter. Id. at 15. [6] On November 17, 2025, the trial court held a final hearing on the probation violation, which occurred after Herzog had been convicted of and on the same day he was sentenced for voluntary manslaughter in the murder case. The Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 3 of 15 same judge presided over Herzog’s murder trial and proceedings and his probation revocation proceedings. At the probation revocation hearing, Herzog denied “committing any violation.” Id. The State requested that the trial court take “judicial notice of the [voluntary manslaughter] conviction” in case l7D02- 2405-MR-2. Id. The State explained that “[a]ll the testimony was given under more stringent rules of evidence than would be applicable in a probation violation hearing” and that his conviction was proven “beyond a reasonable doubt . . . rather than a preponderance[.]” Id. The trial court took judicial notice of the voluntary manslaughter conviction and judgment and found it “sufficient to find violation of the conditions of . . . Herzog’s probation.” Id. [7] The trial court then inquired if Herzog wanted to present anything, to which he replied, “[n]o,” and only wanted to show an objection to “the incorporation of all the evidence from trial towards the revocation of probation.” Id. at 16. The trial court revoked Herzog’s probation and ordered him to serve the balance of his two-year suspended sentence in the DOC. The trial court’s written order found Herzog “in violation of probation” and stated that probation was “terminated in an unsatisfactory manner.” Appellant’s App. Vol. III p. 8. Herzog now appeals. Discussion and Decision [8] Herzog argues that he was denied due process in the procedure utilized by the trial court in revoking his probation. “Probation is a matter of grace left to trial court discretion, not a right to which a criminal defendant is entitled.” Smith v. Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 4 of 15 State, 963 N.E.2d 1110, 1112 (Ind. 2012) (quoting Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007)). We review a trial court’s probation revocation decision for an abuse of discretion, which “occurs ‘where the decision is clearly against the logic and effect of the facts and circumstances.’” Id. (quoting Prewitt, 878 N.E.2d at 188). “A probation hearing is civil in nature, and the State need only prove the alleged violations by a preponderance of the evidence.” Id. (citing Cox v. State, 706 N.E.2d 547, 551 (Ind. 1999)). A trial court may revoke a person’s probation for a single violation. Hammann v. State, 210 N.E.3d 823, 832 (Ind. Ct. App. 2023) (quoting Killebrew v. State, 165 N.E.3d 578, 582 (Ind. Ct. App. 2021), trans. denied), trans. denied. When determining whether the evidence was sufficient in probation revocation proceedings, “we consider only the evidence most favorable to the judgment—without regard to weight or credibility—and will affirm if ‘there is substantial evidence of probative value to support the trial court’s conclusion that a probationer has violated any condition of probation.’” Rosenbourgh v. State, 268 N.E.3d 1255, 1265 (Ind. Ct. App. 2025) (quoting Murdock v. State, 10 N.E.3d 1265, 1267 (Ind. 2014)). [9] “Although probationers are not entitled to the full array of constitutional rights afforded defendants at trial, ‘the Due Process Clause of the Fourteenth Amendment does impose procedural and substantive limits on the revocation of the conditional liberty created by probation.’” Debro v. State, 821 N.E.2d 367, 374 (Ind. 2005) (quoting Cox, 706 N.E.2d at 549). Certain due process rights inure to a probationer at a revocation hearing, including “written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 5 of 15 heard and present evidence, the right to confront and cross-examine adverse witnesses, and a neutral and detached hearing body.” Price v. State, 255 N.E.3d 554, 563 (Ind. Ct. App. 2025) (citing Isaac v. State, 605 N.E.2d 144, 148 (Ind. 1992) (citations omitted), cert. denied). Whether a person was denied due process is a question of law reviewed de novo. Van Hawk v. State, 275 N.E.3d 954, 974 (Ind. Ct. App. 2026), trans. denied. I. Notice [10] 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). “The written notice of the claimed violations of probation must be ‘sufficiently detailed to allow the probationer to prepare an adequate defense[,]’” and a trial court errs in revoking probation based upon a violation for which the probationer did not receive notice. Id. at 831–32 (quoting Bovie v. State, 760 N.E.2d 1195, 1199 (Ind. Ct. App. 2002)). “It is error for a probation revocation to be based upon a violation for which the defendant did not receive notice.” Id. “[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 Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 6 of 15 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). [11] 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. [12] Initially, we note that Herzog did not raise a due process claim to the trial court regarding lack of adequate notice. “Due process rights are subject to waiver, and claims are generally waived if raised for the first time on appeal.” Terpstra v. State, 138 N.E.3d 278, 285–86 (Ind. Ct. App. 2019) (quoting Pigg v. State, 929 N.E.2d 799, 803 (Ind. Ct. App. 2010), trans. denied), trans. denied. The record reveals that Herzog never raised the issue of inadequate notice to the trial court during his revocation proceedings, nor did he ever indicate that he was unaware Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 7 of 15 of what the alleged probation violation was, and he does not argue that the alleged violation of his due process rights constituted fundamental error. Thus, Herzog has waived his inadequate notice due process claim. [13] Waiver notwithstanding, we proceed to decide the case on the merits. 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. 1 Gleason, 634 N.E.2d at 68. [14] 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 1 The evidence established that the boys whom Gleason took pictures of were between the ages of sixteen and eighteen, which was not a crime in Indiana. See Gleason v. State, 634 N.E.2d 67, 68 (Ind. Ct. App. 1994). Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 8 of 15 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. [15] At the revocation hearing here, Herzog denied committing any violation of his probation, resulting in a contested hearing on the allegations. Prior to the presentation of any evidence, the State recited that Herzog had been convicted of voluntary manslaughter after a jury trial in the murder case. The trial court judge had presided over the murder case and had observed the testimony and evidence presented at the trial. The State also noted that the jury trial was conducted under more stringent rules of evidence than required at the revocation hearing and that his conviction had been proved beyond a reasonable doubt rather than by a preponderance of the evidence, which was applicable at the revocation hearing. [16] 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. 2 Tr. Vol. II p. 16. Although Herzog asserts that 2 We note that, although Herzog objected to the “incorporation of all the evidence from trial towards the revocation of probation[,]” that is not what the trial court was doing when it took judicial notice. Tr. Vol. II Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 9 of 15 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 17D02- 2405-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. 3 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. [17] Further, in support of his assertion, Herzog cites to Dalton v. State, 560 N.E.2d 558 (Ind. Ct. App. 1990) and Eckes v. State, 562 N.E.2d 443 (Ind. Ct. App. 1990), which reversed revocations of probation based upon due process violations where the trial courts failed to conduct an evidentiary hearing as required. See Dalton, 560 N.E.2d at 560; Eckes, 562 N.E.2d at 445. 4 To the p. 16. The trial court was merely taking judicial notice of the judgment and conviction from the murder case and not incorporating all of the evidence presented at trial into the revocation proceedings. See id. at 15. 3 Under Indiana Evidence Rule 201(a), a trial court may take judicial notice of records of a court of this state. Ind. Evidence Rule 201(a)(2)(C). 4 In Dalton v. State, the “‘hearing’ consisted of a conversation” between the five parties present with the State not introducing any witnesses or evidence and the defendant not having the opportunity to cross-examine Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 10 of 15 extent that Herzog argues that his due process rights were violated because of an alleged failure to conduct an evidentiary hearing, we disagree. [18] Under Indiana Code section 35-38-2-3, the trial court is required to conduct a hearing concerning the alleged violation with the evidence being presented in open court, and the person is entitled to confrontation, cross-examination, and representation by counsel. Ind. Code § 35-38-2-3(d), (f). Here, the evidentiary hearing clearly met all due process requirements. The State rested after establishing that Herzog had been convicted of the crime of voluntary manslaughter in the murder case. Herzog was afforded the opportunity to challenge the State’s evidence of his conviction but elected not to do so and instead objected to “the incorporation of all the evidence from trial towards the revocation of probation.” Tr. Vol. II p. 16. We have previously held that taking such judicial notice of a new conviction and sentence in a probation revocation hearing based on the commission of the same crime upon which the conviction and sentence was entered does not constitute a due process violation. See Moore, 102 N.E.3d at 309. Therefore, Herzog, who was represented by counsel, received a hearing concerning the alleged violation with the evidence presented in open court and had the opportunity for confrontation and cross-examination of the evidence against him. any witnesses or present evidence on his behalf. 560 N.E.2d 558, 560 (Ind. Ct. App. 1990). In Eckes v. State, the State introduced no evidence regarding the alleged violation, and the three witnesses called by the State only testified about their recommendation that the defendant be required to serve the remainder of his sentence. 562 N.E.2d 443, 445 (Ind. Ct. App. 1990). Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 11 of 15 [19] 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. [20] 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 Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 12 of 15 17D02-2405-MR-[ ]2.” 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. II. Written Statement [21] 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. One of the due process rights that a probationer must be afforded before revocation is the entitlement to a “written statement by the factfinders as to the evidence relied on and the reasons for revoking.” Scott v. State, 258 N.E.3d 298, 301 (Ind. Ct. App. 2025) (citing Medicus v. State, 664 N.E.2d 1163, 1164 (Ind. 1996)). “The written statement requirement is a procedural device aimed at promoting accurate fact finding and ensuring the accurate review of revocation decisions.” Puckett v. State, 956 N.E.2d 1182, 1186 (Ind. Ct. App. 2011) (citing Hubbard v. State, 683 N.E.2d 618, 620–21 (Ind. Ct. App. 1997)). “A transcript of the evidentiary hearing, although not the preferred way of fulfilling the writing requirement, is sufficient if it contains a clear statement of the trial court’s reasons for revoking probation.” Id. [22] 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 Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 13 of 15 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. Conclusion [23] Based on the above reasoning, we conclude that Herzog’s due process rights were not violated by the procedure utilized to revoke his probation. [24] Affirmed. Vaidik, J., and Altice, J., concur. ATTORNEY FOR APPELLANT John M. Haecker Hamilton Law, LLC Auburn, Indiana Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 14 of 15 ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Rebekah D. Bennett Deputy Attorney General Mia Roberts Certified Legal Intern Indianapolis, Indiana Court of Appeals of Indiana | Opinion 25A-CR-3169 | August 18, 2026 Page 15 of 15