Apr 21 2015, 9:56 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Cara Schaefer Wieneke Gregory F. Zoeller
Special Assistant to the State Public Attorney General of Indiana
Defender
Plainfield, Indiana Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy Ellis, April 21, 2015
Appellant-Defendant, Court of Appeals Case No.
44A04-1407-CR-379
v.
Appeal from the LaGrange Circuit
Court
State of Indiana,
Appellee-Plaintiff The Honorable J. Scott VanDerbeck,
Judge
Cause No. 44C01-1305-FD-82
Najam, Judge.
Statement of the Case
[1] Jeremy Ellis appeals his convictions and sentence for theft and attempted theft,
both as Class D felonies, following a jury trial. Ellis raises three issues for our
review. First, he asserts that his two convictions violate Indiana’s prohibitions
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against double jeopardy either because the prosecutor told the jury that it
should consider Ellis’ first offense as evidence of Ellis’ intent to commit the
second offense or because the prosecutor expressly stated that the State was
seeking only one conviction against Ellis. The first statement is not problematic
under Indiana’s Double Jeopardy Clause. And while we do not approve of the
entry of multiple convictions when the prosecutor does not request it,
nonetheless Ellis was charged with multiple offenses and the evidence
demonstrated multiple offenses. Thus, the error here, if any, is not an error
under the actual evidence test of Indiana’s Double Jeopardy Clause.
[2] Ellis also appeals his sentence. In particular, he asserts that his aggregate term
of two and one-half years, with six months suspended to probation, for the theft
of about $30 worth of goods for each offense is inappropriate. For support of
this argument, Ellis cites the current version of Indiana’s criminal code, which
was not in effect at the time he committed his offenses. We reject Ellis’ attempt
to use Indiana Appellate Rule 7(B) to give retroactive effect to the new criminal
code.
[3] Finally, Ellis asserts that the trial court erred when it denied his motion for
additional credit time. But Ellis has not supported this argument with citations
to any part of the appendix or record on appeal that demonstrates his claims
regarding time served and credit time. Thus, we are obliged to reject this
argument.
[4] We affirm Ellis’ convictions and sentence.
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Facts and Procedural History
[5] On May 13, 2013, Nathaniel Burkey was working at Schlemmer’s Hardware
Store (“the store”) in LaGrange when he observed Ellis, who had been inside
the store, exit through the store’s north doors while carrying a bag of fertilizer
and a can of drain opener. Burkey approached Ellis at Ellis’ car, which was
parked “directly north of the north doors,” and he asked Ellis if he had paid for
the items he was carrying. Tr. at 18. Ellis said he had, and Burkey asked to see
a receipt. Ellis then produced a receipt from a CVS pharmacy. Burkey took
possession of the two items and informed Ellis that he would have to come
back inside and pay for the items if he wanted them. Ellis went back inside
with Burkey and asked another employee to charge the items to an account
under the last name of “Ellis.” Id. at 20-21. But because the only account
under such a name was for a person not related to Ellis, the employee refused to
charge the account. Ellis then left without the items. The store’s owner
informed the local sheriff’s department of the incident immediately after Ellis
had left.
[6] About thirty minutes later, another store employee observed Ellis return to the
store, and she alerted the other employees and the owner. The owner contacted
the sheriff’s department. Burkey, who was standing by the cash registers on the
south side of the store, observed Ellis walk past the cash registers and out the
store’s west entrance with a bag of fertilizer and a can of drain opener. Ellis did
not stop at the cash registers and did not pay for the two items. The total cost
of the two items was between $29 and $30.
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[7] While Ellis was on his way to his car, LaGrange County Sheriff’s Deputy
Derek Baldridge arrived and engaged Ellis. Deputy Baldridge asked Ellis if he
had paid for the two items, and Ellis stated that he had. Deputy Baldridge then
asked Ellis to go inside with him. Inside, the store’s employees informed
Deputy Baldridge that Ellis had not paid for the items. Deputy Baldridge then
arrested Ellis.
[8] On May 15, 2013, the State charged Ellis with theft, as a Class D felony. More
than a year later, on May 22, 2014, the State added a second charge for
attempted theft, also as a Class D felony. Both charges were for the removal of
a bag of fertilizer and a can of drain opener from the store on May 13, 2013. At
the ensuing jury trial in June of 2014, the State’s opening argument and
presentation of evidence explained the sequence of events at the store on May
13, 2013, but did not specifically relate the State’s evidence to one charge or the
other.
[9] In its closing argument, the State informed the jury that two distinct crimes had
occurred on May 13, 2013:
there’s two crimes here. He’s charged—one is theft, one is
attempted theft, okay. So when we initiated this case, I think,
“Man, this is pretty obvious, he walks out of the store not once,
but twice with the goods.” That’s theft.
The other thing though I’m thinking this is a—maybe somebody
says, “Well, he didn’t get all the way out. He didn’t even make it
out of the parking lot.” And you know, I don’t think that Derek
Baldridge should have to sit in his squad car . . . and watch that
guy get in his car and speed away. . . . [B]ut if you do, if . . . you
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think he should have to wait that long, then the crime is
attempted theft. I think it would [be] a lot easier if you just said it
was a theft . . . .
Id. at 98-99. But then the State created confusion as to whether it was seeking
one conviction or two:
we’ll give [Ellis] a mulligan on the first trip; he got caught. Store
got its goods back, no big deal.
But . . . it’s really kind of bullish to come back 30 minutes later
and try to do the same thing . . . .
***
If you think . . . he had to get out of the parking lot . . . then I
guess you would find him guilty of attempted theft.
Id. at 103-04.
[10] Defense counsel seized on this confusion in his closing argument to the jury
and emphasized it:
I guess we’re only talking about this second trip, not the first trip,
according to the Prosecutor’s final argument there. [Ellis] got a
pass on that. He came back in and gave the merchandise . . .
back, tried to pay for it on a charge account that [Ellis] thought
was there and wasn’t there and left. So he’s not charged with
theft or attempted theft on that occasion. We’re talking about the
second occasion when he walked out the west door and then was
stopped by Officer Baldridge.
Id. at 107.
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[11] In its rebuttal, the State clarified its position on this point as follows:
Mr. Ellis’s first entrance into the store is not what he’s being
charged with. [Defense counsel] is right.
But that doesn’t mean you can . . . compartmentalize all these
little facts and ignore them. I want you to judge Jeremy Ellis on
the whole picture on what he did during this 30 to 60 minute
transaction, okay?
And you don’t have to agree with me on this, but when he comes
back, the point that he breaks the law is probably when he walks
out that west door and doorbells go . . . off. Because at that
point, he’s made a conscious decision that “I’m not going to pay
for this $29 to $30 worth of goods.” He said, “I’m going to try
this again.”
***
So I mean . . . I agree with [defense counsel] in that [Ellis is] not
charged based upon the first transaction, but the first transaction
is helpful because it helps to tell you what his intention is, what
was going on up here in his mind, okay?
***
When he came back into that store and he picked up the drain
cleaner and he picked up the fertilizer and headed out the side
door, that’s a substantial step. That is. That tells you what he’s
thinking based upon what he’s done just before that and what he
did the 30 or 45 minutes before when he came in the first time.
***
. . . I think if you add all those things up . . . it’s a theft . . . . I
think it’s a theft when he walks out the west door with these
items in his hands and he hasn’t paid for them.
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. . . So I think that’s a theft, but if you don’t think that’s quite
enough, then at least grant me that . . . he’s trying to get away
without paying, and that[,] therefore, it’s attempted theft.
Id. at 110-13.
[12] However, in its jury instructions, the court informed the jurors that they were
“to consider the law and the evidence as it may apply to each count
individually and separately from the other counts.” Id. at 128. Ellis did not
object to this instruction or tender an alternative instruction. The jury then
found Ellis guilty of both theft and attempted theft in separate verdicts,1 and,
again without objection, the trial court entered its judgment of conviction on
both counts.
[13] During the ensuing sentencing hearing, the State argued that the instant
offenses were part of “a pattern of behavior by [Ellis]” that “revolved around
methamphetamine.” Sent. Tr. at 7. The trial court found as an aggravating
circumstance that “there are several pending cases with offense dates after this
pending case involving alleged manufacturing or possession of
methamphetamines.” Appellant’s App. at 51. The court also found that Ellis’
criminal history was an aggravating circumstance. The court then ordered Ellis
to serve an aggregate term of two-and-one-half-years, with six months
1
It is not clear which of the two events the jury concluded was the completed theft and which was the
attempted theft.
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suspended to probation. Thereafter, Ellis filed a motion to apply additional
credit time to his sentence, which the trial court denied. This appeal ensued.
Discussion and Decision
Issue One: Double Jeopardy
[14] On appeal, Ellis first asserts that his two convictions violate Indiana’s
prohibitions against double jeopardy. Although Ellis did not object on double
jeopardy grounds below, questions of double jeopardy implicate fundamental
rights and, as such, may be raised for the first time on appeal, or even by this
court sua sponte. See Smith v. State, 881 N.E.2d 1040, 1047 (Ind. Ct. App. 2008).
Whether convictions violate double jeopardy is a pure question of law, which
we review de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App. 2012),
trans. denied.
[15] Article 1, Section 14 of the Indiana Constitution prohibits double jeopardy,
providing that “[n]o person shall be put in jeopardy twice for the same offense.”
As our supreme court has explained:
In Richardson v. State, 717 N.E.2d 32 (Ind. 1999)[,] this Court
concluded that two or more offenses are the same offense in
violation of article 1, section 14 if, with respect to either the
statutory elements of the challenged crimes or the actual evidence
used to obtain convictions, the essential elements of one
challenged offense also establish the essential elements of another
challenged offense. Under the actual evidence test, we examine
the actual evidence presented at trial in order to determine
whether each challenged offense was established by separate and
distinct facts. Id. at 53. To find a double jeopardy violation
under this test, we must conclude that there is “a reasonable
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possibility that the evidentiary facts used by the fact-finder to
establish the essential elements of one offense may also have
been used to establish the essential elements of a second
challenged offense.” Id. The actual evidence test is applied to all
the elements of both offenses. “In other words . . . the Indiana
Double Jeopardy Clause is not violated when the evidentiary
facts establishing the essential elements of one offense also
establish only one or even several, but not all, of the essential
elements of a second offense.” Spivey v. State, 761 N.E.2d 831,
833 (Ind. 2002).[2]
Our precedents “instruct that a ‘reasonable possibility’ that the
jury used the same facts to reach two convictions requires
substantially more than a logical possibility.” Lee v. State, 892
N.E.2d 1231, 1236 (Ind. 2008) (citing cases). The reasonable
possibility standard “fairly implements the protections of the
Indiana Double Jeopardy Clause and also permits convictions for
multiple offenses committed in a protracted criminal episode
when the case is prosecuted in a manner that insures that
multiple guilty verdicts are not based on the same evidentiary
facts.” Richardson, 717 N.E.2d at 53 n.46. The existence of a
“‘reasonable possibility’ turns on a practical assessment of
whether the [fact finder] may have latched on to exactly the same
facts for both convictions.” Lee, 892 N.E.2d at 1236. We
2
Shortly after our supreme court’s opinion in Spivey, this court, discussing Spivey, stated:
the Richardson actual evidence test, as applied by our Supreme Court, has found double
jeopardy to be violated where the evidentiary fact(s) establishing one or more elements of
one challenged offense establish all of the elements of the second challenged offense. For
there to be a double jeopardy violation it is not required that the evidentiary facts
establishing all of the elements of one challenged offense also establish all of the essential
elements of a second challenged offense.
Alexander v. State, 772 N.E.2d 476, 478 (Ind. Ct. App. 2002) (emphases in original), trans. denied. Of course,
this language from Alexander is inconsistent with our supreme court’s statement in Spivey that “the Indiana
Double Jeopardy Clause is not violated when the evidentiary facts establishing the essential elements of one
offense also establish only one or even several, but not all, of the essential elements of a second offense.”
Spivey, 761 N.E.2d at 833 (emphasis added). As our supreme court later succinctly stated: “The actual
evidence test is applied to all the elements of both offenses.” Garrett, 992 N.E.2d at 719.
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evaluate the evidence from the jury’s perspective and may
consider the charging information, jury instructions, and
arguments of counsel. Id. at 1234.
Garrett v. State, 992 N.E.2d 710, 719-20 (Ind. 2013) (last alteration original).3
[16] Ellis’ two convictions do not violate the actual evidence test of Indiana’s
Double Jeopardy Clause. Each conviction was established by separate and
distinct evidentiary facts. For one conviction, the State demonstrated the
following: Ellis removed items from the store without authorization; he exited
the store through its north doors; and he proceeded to his car, only to be
stopped there by a store employee. For the other conviction, the State
separately demonstrated the following: about thirty minutes after the first
offense, Ellis again removed items from the store without authorization; he
exited the store through its west doors; and he proceeded to his car, only to be
stopped there by a police officer. The State’s evidence plainly delineated two
events, and there is no reasonable possibility that the jury “latched on to exactly
the same facts for both convictions.” Lee, 892 N.E.2d at 1236.
[17] Moreover, the State’s opening argument clearly described two separate events.
The State’s initial statement to the jury in its closing argument was that “there’s
two crimes here.” Tr. at 98. And the trial court instructed the jury to consider
the evidence for “each count individually and separately from the other
counts.” Id. at 128.
3
Ellis does not challenge the validity of his convictions under either the Fifth Amendment to the United
States Constitution or under the statutory elements test of the Indiana Constitution.
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[18] Nonetheless, on appeal Ellis zeroes in on other comments made by the State
during its closing argument, namely, its statement in its rebuttal that the jurors
should consider the first offense as evidence of Ellis’ intent to commit the
second offense. But the State’s comment does not demonstrate a double
jeopardy violation under the actual evidence test. To the contrary, at most the
State asked the jury to use the evidentiary facts underlying the first offense to
establish “only one . . . , but not all, of the essential elements of a second
offense,” namely, Ellis’ intent. Spivey, 761 N.E.2d at 833. This is not sufficient
to establish a violation of Indiana’s Double Jeopardy Clause. Id.; see also
Garrett, 992 N.E.2d at 719 (“The actual evidence test is applied to all the
elements of both offenses.”).
[19] In his reply brief, Ellis takes a different tack and instead argues that the State on
appeal is estopped from disclaiming the local prosecutor’s apparent concession
during closing that “[Ellis is] not charged based upon the first transaction.” Tr.
at 110-11. But Ellis raised the issue of double jeopardy in his brief on appeal,
and the State is permitted to respond to that argument in its brief. Thus, insofar
as Ellis’ reply brief asserts that the State may not respond to the argument raised
by Ellis on appeal, Ellis’ assertion is not well taken.
[20] Moreover, insofar as Ellis’ argument in his reply brief is a new argument on
appeal—namely, that one of his convictions must be reversed in accordance
with the prosecutor’s apparent concession during his closing argument—we
note that Ellis did not object to the trial court’s instructions that the jury
consider the evidence for “each count individually and separately from the
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other counts,” id. at 128; Ellis did not proffer his own jury instructions to hold
the State to its apparent concession; and he did not object to the trial court’s
entry of multiple convictions against him. He may not raise these arguments
for the first time on appeal, let alone in a reply brief, and we will not allow Ellis
to use a double jeopardy claim to salvage an argument that he did not preserve
with a proper objection in the trial court.
[21] All of this is not to say that we approve of the entry of two convictions when
the prosecutor stated in his closing argument that the State was seeking only
one conviction. But, as the jury here was instructed, the “final arguments are
not evidence”; rather, they are an “attempt to persuade you to a particular
verdict. You may accept or reject these arguments as you see fit.” Voir Dire
Tr. at 69. The jury here plainly rejected the prosecutor’s argument in his
rebuttal and instead found Ellis guilty of the two crimes demonstrated by the
evidence.
[22] In sum, the only argument properly raised by Ellis on appeal is an issue of
double jeopardy, and the error here, if any, does not violate double jeopardy
under the actual evidence test. As such, we affirm Ellis’ convictions for theft
and attempted theft.
Issue Two: Ellis’ Sentence
[23] Ellis next asserts that his sentence is inappropriate under Indiana Appellate
Rule 7(B). Article 7, Sections 4 and 6 of the Indiana Constitution “authorize[]
independent appellate review and revision of a sentence imposed by the trial
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court.” Roush v. State, 875 N.E.2d 801, 812 (Ind. Ct. App. 2007) (alteration
original). This appellate authority is implemented through Indiana Appellate
Rule 7(B). Id. Revision of a sentence under Rule 7(B) requires the appellant to
demonstrate that his sentence is inappropriate in light of the nature of his
offense and his character. See Ind. Appellate Rule 7(B); Rutherford v. State, 866
N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess the trial court’s recognition or
non-recognition of aggravators and mitigators as an initial guide to determining
whether the sentence imposed was inappropriate. Gibson v. State, 856 N.E.2d
142, 147 (Ind. Ct. App. 2006). However, “a defendant must persuade the
appellate court that his or her sentence has met th[e] inappropriateness standard
of review.” Roush, 875 N.E.2d at 812 (alteration original).
[24] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell v. State, 895 N.E.2d 1219, 1222, 1224
(Ind. 2008). The principal role of appellate review is to attempt to “leaven the
outliers.” Id. at 1225. Whether we regard a sentence as inappropriate at the
end of the day turns on “our sense of the culpability of the defendant, the
severity of the crime, the damage done to others, and myriad other facts that
come to light in a given case.” Id. at 1224. Pursuant to the law in effect at the
time Ellis committed his offenses, the sentencing range for a Class D felony was
between six months and three years, with an advisory term of one and one-half
years. Ind. Code § 35-50-2-7 (2012). Thus, Ellis faced a potential maximum
executed term of six years for his two Class D felony convictions.
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[25] Ellis asserts that his aggregate term of two and one-half years, with six months
suspended to probation, is inappropriate in light of the nature of the offense
because the value of the items he stole or attempted to steal was about $30 on
each occasion. He argues that his sentence is inappropriate in light of his
character because, “had he committed the offense today, he would be facing
one year in prison, even with an extensive criminal history.” Appellant’s Br. at
7. We cannot agree with Ellis’ arguments on appeal.
[26] Ellis’ sentence is not inappropriate. Although the value of the items Ellis
removed from the store is not substantial, that was not the only legitimate
concern before the trial court. Rather, regarding the nature of the offenses,
within thirty minutes of the first offense Ellis committed the second offense,
which, as the State noted to the jury, was “bullish.” Tr. at 103. The items Ellis
removed from the store were, as the State argued to the trial court and again on
appeal, “commonly used to manufacture methamphetamine.” Appellee’s Br. at
14. And, upon being caught by a store employee, Ellis attempted to have the
items placed on the account of a third party who happened to share Ellis’ last
name. Ellis also attempted to deceive Burkey by producing a CVS receipt, and
he lied to Deputy Baldridge when the deputy approached Ellis after the second
offense.
[27] Neither is Ellis’ sentence inappropriate in light of his character. Ellis has an
extensive criminal history, including a prior felony conviction for forgery, as a
Class C felony. At the time of the sentencing hearing he had numerous
methamphetamine-related charges pending against him. And Ellis’ bullish and
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deceptive behavior during his commission of the instant offenses demonstrates
his indifference to the law.4
[28] We also reject Ellis’ argument that the sentencing scheme currently in effect is
somehow informative of the sentence Ellis should have received. On this point,
Ellis asserts (notably, without citation) that the sentencing statutes that would
apply to him had he committed the instant offenses after June 30, 2014, rather
than before that date, allow for a maximum term of one year on these facts. See
I.C. §§ 35-43-4-2 (2014); 35-50-3-2 (2014). But it is well established that “[t]he
sentencing statute in effect at the time a crime is committed governs the
sentence for that crime.” Harris v. State, 897 N.E.2d 927, 928-29 (Ind. 2008).
Indeed, Indiana Code Section 1-1-5.5-22(b) explicitly states that “[t]he general
assembly does not intend the doctrine of amelioration . . . to apply to any
SECTION of [the new criminal code].” And we have repeatedly recognized
that the new criminal code does not apply retroactively. E.g., Marley v. State, 17
N.E.3d 335, 340 (Ind. Ct. App. 2014), trans. denied. We will not use our
authority under Indiana Appellate Rule 7(B) to, in effect, give retroactive effect
to the new criminal code. Cf. Hobbs v. State, ___ N.E.3d ___, 2015 WL 409469
(Ind. Ct. App. 2015) (rejecting the defendant’s argument that he was entitled to
a sentence modification by applying the new criminal code instead of the
4
We need not consider the State’s additional arguments against Ellis’ character, which include letters Ellis
wrote to the trial court judge.
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relevant provisions of the code in effect at the time of his offense), not yet
certified.
[29] In sum, we cannot say that Ellis’ aggregate term of two and one-half years, with
six years suspended, is inappropriate. We affirm Ellis’ sentence.
Issue Three: Credit Time
[30] Ellis’ final argument on appeal is that the trial court miscalculated his credit for
time served while he awaited his trial. Specifically, Ellis claims that he should
have received thirty-eight days credit for time he served in the Allen County
Jail, which was for another charge but while Ellis was out on bail for the instant
offenses. Ellis claims that the thirty-eight days is credit for nineteen days
actually served, namely, from February 21, 2014, when the LaGrange Circuit
Court placed a hold on Ellis after he had failed to appear for a hearing on the
instant offenses, through March 11, 2014, when Ellis was released from the
Allen County Jail after he had pleaded guilty to the Allen County offense. Ellis
further claims that, for the Allen County offense, he was sentenced to ninety
days executed, but he was in the Allen County Jail for 105 days.
[31] We are obliged to conclude that Ellis has waived this argument for our review
because he does not support his claims with appropriate citations to the
appendix or record on appeal. Specifically, in relevant part Ellis first cites page
60 of the Appellant’s Appendix, but that page does not exist. 5 Even if it did
5
We note that the State also cites page 60 of the Appellant’s Appendix in its brief.
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exist, however, according to the parties’ explanations this document was simply
Ellis’ motion for additional credit time and his own assertions regarding the
validity of his request; it was not an independently created record that
demonstrated time Ellis actually did or did not serve in Allen County.
[32] Ellis also cites the “Jun. 11, 2014 PSI, pg. 5,” see Appellant’s Br. at 8, which is
an unnumbered page6 in a stack of unnumbered and confidential pages separate
from the Appellant’s Appendix. While we were able to locate this document
despite the conspicuous lack of consecutive pagination, it is not clear how the
cited portion supports Ellis’ argument on appeal. That information simply
states that a charge against Ellis was filed in the Allen Superior Court on
December 4, 2013, that it was disposed of on the sentencing date, which was
March 11, 2014, and that Ellis pleaded guilty to a Class A misdemeanor, for
which he received ninety days incarceration. The document does not state the
time Ellis spent in the Allen County Jail or whether the ninety-day sentence
was for time actually served or included credit time.
[33] Without information that demonstrates both the dates Ellis was incarcerated in
the Allen County Jail and how the Allen Superior Court did or did not allocate
his time served in that jail to his Allen County offense, we cannot review the
trial court’s denial of Ellis’ request for additional credit time for the instant
6
To be sure, it is internally numbered as page 5, but that is hardly helpful when it is buried in a stack of
other documents, some of which are internally numbered and some of which are not, and it is not numbered
relative to the other documents within that stack.
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offenses. Thus, we hold that Ellis has waived this argument for our review, and
we must affirm the trial court’s denial of his request for additional credit time.
Conclusion
[34] In sum, Ellis’ two convictions do not violate Indiana’s Double Jeopardy
Clause, his sentence is not inappropriate in light of the nature of the offenses
and his character, and we cannot say that the trial court erred when it denied
Ellis’ motion for additional credit time. Thus, we affirm Ellis’ convictions and
sentence.
[35] Affirmed.
[36] Mathias, J., and Bradford, J., concur.
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