MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  Dec 02 2015, 7:56 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


APPELLANT PRO SE                                        ATTORNEYS FOR APPELLEE
Robert A. Ottomanelli                                   Gregory F. Zoeller
Pendleton, Indiana                                      Attorney General of Indiana
                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert A. Ottomanelli,                                  December 2, 2015
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        45A05-1412-CR-567
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        45G04-1303-FB-26



Bradford, Judge.



                                    Case Summary

Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-567 | December 2, 2015         Page 1 of 4
[1]   Appellant-Defendant Robert Ottomanelli appeals the denial of his request for

      jail time credit. We reverse and remand with instructions that the trial court

      address Ottomanelli’s argument on the merits.



                            Facts and Procedural History
[2]   On February 28, 2014, Ottomanelli pled guilty to two counts of Class B felony

      burglary. On April 8, 2014, the trial court sentenced Ottomanelli to two fifteen-

      year sentences to be served concurrently. The trial court also awarded

      Ottomanelli 369 days for time served and 369 days of good time credit.


[3]   On August 15, 2014, Ottomanelli filed a motion for jail time credit in which he

      alleged that he was entitled to 391 days of jail time credit––not 369 days––based

      on his presentence incarceration from his March 15, 2013 arrest until his April

      8, 2014 sentencing. On September 15, 2014, in an order denying Ottomanelli’s

      motion, the trial court concluded that “a petition for credit time may only be

      used to attack a sentence that is invalid on its face. The sentence is not facially

      erroneous. Therefore, the issues must be addressed in a petition for post-

      conviction relief.” Appellant’s Supplemental App. p. 20. The trial court

      declined to address the merits of Ottomanelli’s argument.


[4]   On October 27, 2014, Ottomanelli filed a motion to correct erroneous sentence

      and a motion to correct error, both of which raised the same allegation of

      inappropriate calculation of his jail time credit by the trial court. Ottomanelli’s

      motions were summarily denied by the trial court on October 30, 2014.


      Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-567 | December 2, 2015   Page 2 of 4
                                Discussion and Decision
[5]   On appeal, Ottomanelli argues that he is entitled to an additional twenty-two

      days of jail time credit. The State argues that Ottomanelli has waived this issue

      for our review. However, the State concedes that if Ottomanelli has not waived

      the issue for review, then the trial court was required to address the merits of his

      argument.


[6]   The State argues that Ottomanelli has waived the issue for review by failing to

      provide a cogent legal argument in the ‘Argument’ section of his brief in

      violation of Indiana Appellate Rule 46(A)(8)(a). Appellate Rule 46(A)(8)(a)

      requires that the Argument section of an appellant’s brief “must contain the

      contentions of the appellant on the issues presented, supported by cogent

      reasoning. Each contention must be supported by citations to the authorities,

      statutes, and the Appendix or parts of the Record on Appeal relied on….”

      “[W]henever possible, we prefer to resolve cases on the merits instead of on

      procedural grounds like waiver. Thus, unless we find a party’s non-compliance

      with the rule sufficiently substantial to impede our consideration of the issue

      raised, we will address the merits of his claim.” Pierce v. State, 29 N.E.3d 1258,

      1267 (Ind. 2015).


[7]   The State is correct that Ottomanelli’s Argument section “merely recites case

      law establishing that a facially erroneous sentence may be corrected though a

      motion to correct erroneous sentence.” Appellee’s Br. p. 5. However,

      Ottomanelli’s claim that the trial court erred in calculating the correct amount


      Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-567 | December 2, 2015   Page 3 of 4
      of jail time credit is explained in the ‘Summary of the Argument’ and

      ‘Statement of the Facts’ sections of his brief. Furthermore, Ottomanelli’s

      argument has been clear and consistent since his initial August 15, 2014 motion

      for jail time credit. Any procedural missteps made by Ottomanelli are

      inconsequential and have not impeded this court’s review of the issues. As

      such, we find that Ottomanelli has not waived the issue for review.


[8]   The State concedes that, absent waiver, the trial court “‘must address the

      merits’ of a motion for jail time credit where the motion ‘identifies a sufficient

      factual basis for his eligibility’.” Appellee’s Br. p. 6 (quoting Weaver v. State, 725

      N.E.2d 945, 948 (Ind. Ct. App. 2000)). The State acknowledges that the

      chronological case summary appears to support Ottomanelli’s argument,

      although not his specific calculation. It appears that 386 days elapsed between

      Ottomanelli’s arrest on March 15, 2013 and his sentencing on April 4, 2014. It

      is unclear from the record why Ottomanelli was awarded only 369 days of

      credit time instead of 386. As such, we reverse and remand with instructions

      that the trial court address the merits of Ottomanelli’s argument.


[9]   Reversed and remanded with instructions.


      Baker, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 45A05-1412-CR-567 | December 2, 2015   Page 4 of 4
