                                                                                  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

      Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015                           Page 1 of 18
      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.


      Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015   Page 2 of 18
                                  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.

      Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015   Page 3 of 18
[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
      Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015      Page 4 of 18
               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.


       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015       Page 5 of 18
[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.
       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015             Page 6 of 18
                . . . 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.

       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015                        Page 7 of 18
       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
       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015    Page 8 of 18
           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.

Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015                                Page 9 of 18
                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.

       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015                        Page 10 of 18
[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

       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015    Page 11 of 18
       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


       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015   Page 12 of 18
       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.

       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015   Page 13 of 18
[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

       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015   Page 14 of 18
       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.

       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015                         Page 15 of 18
       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.

       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015                  Page 16 of 18
       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.

       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015                        Page 17 of 18
       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.




       Court of Appeals of Indiana | Opinion 44A04-1407-CR-379 | April 21, 2015   Page 18 of 18
