Pursuant to Ind. Appellate Rule 65(D), 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:

TERRELL EWELL GREGORY F. ZOELLER

Wabash Valley Correctional Facility Attorney General of Indiana

Carlisle, Indiana

STEPHANIE L. ROTHENBERG

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

TERRELL EWELL, )

)

Appellant-Defendant, )

)

vs. ) No. 49A04-1107-CR-401

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Lisa F. Borges, Judge

Cause No. 49G04-9909-CF-163896

March 16, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
2

Case Summary

Terrell Ewell appeals the trial court’s order denying his motion for jail time credit. 

Concluding that Ewell did not timely file his notice of appeal, we dismiss this case for lack of 

subject matter jurisdiction. 

Facts and Procedural History

On November 21, 2000, Ewell was convicted by a jury of murder and class A 

misdemeanor carrying a handgun without a license. The trial court sentenced Ewell to fiftyfive years for murder to be served concurrently with a one-year sentence for carrying a 

handgun without a license. On the abstract of judgment, the trial court noted that Ewell had 

been “confined prior to sentencing” for 457 days. Appellant’s App. at 16.

Ewell appealed, and we affirmed the trial court in an unpublished memorandum 

decision on December 14, 2001. Our supreme court denied Ewell’s petition to transfer on 

February 21, 2002. Thereafter, on February 24, 2011, Ewell filed a pro se notice of appeal. 

We dismissed that appeal with prejudice on June 29, 2011.

On June 8, 2011, Ewell filed a “Petitioner’s Request For Order” in which he requested 

457 days of jail time credit. On that same date, the trial court issued its order denying 

Ewell’s request which concludes in relevant part:

Petitioner has requested the trial [c]ourt award him an additional 457 days 

credit for “earned credit time.” The Abstract of Judgment accurately shows 

Petitioner was provided 457 actual days credit for time spent confined prior to 

sentencing. The court recommends that DOC award good time credit in 

accordance with Indiana law. Petitioner asks the court to ignore clear authority 

to the contrary as the legislature has invested the Department of Correction 

with the authority to determine, deny, or restore credit time. Simply put, the 

trial court lacks the statutory authority to award Petitioner the relief he seeks.
3

Id. at 11. The trial court received a notice of appeal from Ewell on July 11, 2011. On July 

14, 2011, the trial court issued an order regarding the notice of appeal which reads as 

follows:

Comes now the Court, after reviewing the Petitioner’s Notice of Appeal, and 

the Court’s file, now enters the following Order. Petitioner filed a Notice of 

Appeal, received by the Court, on July 11, 2011. Petitioner seeks to appeal the 

June 8, 2011 Order denying credit time. The pleading contains language 

which asserts the Notice was submitted on July 5, 2011, however there is no 

envelope attached, evidence of mailing, or any other means to determine how 

the Notice was filed with the Court. The Court cannot assess the date of filing 

under the “prison mailbox rule”; See Dowell v. State, 922 N.E.2d 605 (Ind. 

2010). Therefore, the Court considers the Notice of Appeal to be untimely 

filed and directs the Clerk to take no additional action on the Notice of Appeal 

received July 11, 2011. In addition, on June 29, 2011, the Indiana Court of 

Appeals entered an Order dismissing, with prejudice, defendant/appellant’s 

appeal regarding this case under Court of Appeals cause number 49A04-1102-

CR-82. Defendant attempts to re-litigate an ongoing dispute he has with the 

Department of Correction regarding earned credit time. As this court has 

repeated [sic] indicated, the trial court does not have jurisdiction to consider 

earned credit time disputes until a petitioner has demonstrated that he has 

exhausted all administrative remedies available within the DOC. The abstract 

of judgment herein correctly shows the 457 pre-sentence credit days. The 

DOC has the statutory authority to deny or restore credit time. The Indiana 

Supreme Court, in Robinson v. State, 805 N.E.2d 783 (Ind. 20[0]4), adopted a 

presumption that “[s]entencing judgments that report only days spent in presentence confinement and fail to expressly designate credit time earned shall 

be understood by courts and by the Department of Correction automatically to 

award the number of credit time days equal to the number of pre-sentence 

confinement days.”

Id. at 14-15. On August 9, 2011, a notice of completion of the clerk’s record was filed, and

on October 11, 2011, we granted Ewell’s petition to file a belated appellant’s brief. 

Discussion and Decision
4

Although specifically addressed by the trial court, neither party here raises the issue of 

the timeliness of Ewell’s notice of appeal. However, the timely filing of a notice of appeal is 

a jurisdictional prerequisite that can be raised sua sponte even if the parties do not question 

jurisdiction. Tarrance v. State, 947 N.E.2d 494, 495 (Ind. Ct. App. 2011). Indeed, subject 

matter jurisdiction cannot be waived, and courts at all levels are obligated to consider the 

issue sua sponte. Id.

A party initiates an appeal “by filing a Notice of Appeal with the trial court clerk 

within thirty (30) days after the entry of a Final Judgment.” Ind. Appellate Rule 9(A)(1).1 

Because the timely filing of a notice of appeal is a jurisdictional prerequisite, the failure to 

conform to the applicable time limits results in forfeiture of an appeal. Tarrance, 947 N.E.2d 

at 494. Here, the final order Ewell wishes to appeal is the trial court’s June 8, 2011, order 

denying his petition for jail time credit. As noted by the trial court, Ewell’s pro se notice of 

appeal was received by the trial court on July 11, 2011. On the record before us, and absent 

any proof to the contrary provided by Ewell, we must accept the trial court’s determination 

that Ewell’s notice was deemed filed on that date and therefore, was filed outside the thirtyday time limit. 2

 See Dowell v. State, 922 N.E.2d 605, 608 (Ind. 2010) (prison mailbox rule 

requires prisoner to provide reasonable, legitimate, and verifiable documentation supporting 

a claim that a document was timely submitted to prison officials for mailing). Accordingly, 

 

1

 Effective January 1, 2012, Indiana Appellate Rule 9(A)(1) has been amended to provide that a party 

initiates an appeal by filing a notice of appeal with the Clerk of the Indiana Supreme Court, Court of Appeals 

and Tax Court “within thirty (30) days after the entry of a Final Judgment is noted in the Chronological Case 

Summary.” 

2 The thirtieth day fell on Friday, July 8, 2011.
5

we conclude that Ewell did not timely file his notice of appeal, and we are without 

jurisdiction to consider his appeal.

3

 Therefore, we dismiss.

Dismissed.

MAY, J., and BROWN, J., concur.

 

3

 We additionally note, as did the trial court, that we dismissed with prejudice Ewell’s second appeal 

in this case under cause number 49A04-1102-CR-82. Although we cannot discern from the record what issue 

Ewell attempted to raise in that appeal, the trial court indicated that Ewell attempted to raise the issue of his jail 

time credit. Even if not directly decided by the earlier appeal, the jail time credit issue was available to Ewell. 

Ewell is therefore precluded from relitigating the issue here in that it is either res judicata or is waived because 

it was available to be presented as part of his previous appeal that was dismissed with prejudice. See Harris v. 

State, 643 N.E.2d 309, 310 (Ind. 1994) (defendant precluded from relitigating issue of propriety of his 

sentence as it was either res judicata or waived because it was available to be presented as part of previous 

appeal); see also Money Store Inv. Corp. v. Summers, 909 N.E.2d 450, 460 (Ind. Ct. App. 2009) (“[A] 

dismissal with prejudice is conclusive of the rights of the parties and is res judicata as to any questions that 

might have been litigated.”).