Jesus Ortiz v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 22 2020, 9:52 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
APPELLANT PRO SE ATTORNEYS FOR APPELLEE
Jesus Ortiz Curtis T. Hill, Jr.
Pendleton, Indiana Attorney General of Indiana
Jesse R. Drum
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jesus Ortiz, June 22, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1473
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D03-0410-FA-102
Mathias, Judge.
[1] Jesus Ortiz (“Ortiz”) was convicted in St. Joseph Superior Court of two counts
of Class A felony child molesting and ordered to serve an aggregate sixty-year
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sentence with twenty years suspended to probation. Ortiz filed a petition for
correction or modification of sentence, which the trial court denied. Ortiz
appeals pro se and argues that the trial court abused its discretion when it
denied his petition.
[2] We affirm.
Facts and Procedural History
[3] In 2006, Ortiz was convicted of two counts of Class A felony child molestation
for molesting his daughter.
The trial court sentenced Ortiz to forty years in the Indiana
Department of Correction for the child molesting conviction
involving the intercourse and suspended twenty years of that
sentence but ordered Ortiz to serve those twenty years in the
Indiana Department of Correction as a condition of probation.
The trial court left open the possibility of a sentence modification
at the end of the first twenty-year portion of the sentence. The
trial court ordered Ortiz to serve twenty years on the remaining
conviction and then ordered that the sentences be served
consecutively.
Ortiz v. State, 71A03-0607-CR-314, WL 2351067 at *1 (Ind. Ct. App. Aug. 20,
2007).
[4] Ortiz appealed his convictions and sentence. With regard to his sentence, Ortiz
argued that he was sentenced in violation of Blakely v. Washington, 542 U.S. 296
(2004). Our court did not agree and affirmed Ortiz’s sentence. Id. at *7. Ortiz
also unsuccessfully petitioned for post-conviction relief alleging ineffective
assistance of appellate counsel. Ortiz appealed, and our court affirmed the trial
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court’s denial of his petition for post-conviction relief. Ortiz v. State, 71A03-
1704-PC-820, WL6614501 (Ind. Ct. App. Dec. 28, 2017),.
[5] On May 6, 2019, Ortiz filed pro se a petition for correction of sentence or
sentence modification citing Indiana Code section 35-38-1-15. In response, the
State argued that Ortiz is a violent criminal and cannot file a sentence
modification without the prosecutor’s consent. The State declined to consent to
modification of Ortiz’s sentence. Appellee’s App. p. 19. The trial court denied
Ortiz’s petition to correct his sentence. Ortiz now appeals.
Discussion and Decision
[6] We review the denial of a motion to correct erroneous sentence for an abuse of
discretion. Felder v. State, 870 N.E.2d 554, 560 (Ind. Ct. App. 2007). An abuse
of discretion will be found only when the trial court’s decision is against the
logic and effect of the facts and circumstances before it. Id. An inmate who
believes that he has been erroneously sentenced may file a motion to correct an
erroneous sentence, which is designed to provide a prompt and uncomplicated
process to correct sentences. Neff v. State, 888 N.E.2d 1249, 1250–51 (Ind.
2008).
[7] Indiana Code section 35-38-1-15 provides:
If the convicted person is erroneously sentenced, the mistake
does not render the sentence void. The sentence shall be
corrected after written notice is given to the convicted person.
The convicted person and his counsel must be present when the
corrected sentence is ordered. A motion to correct sentence must
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be in writing and supported by a memorandum of law
specifically pointing out the defect in the original sentence.
[8] Motions made pursuant to Indiana Code section 35-38-1-15 may only be used
to attack a sentence that is “erroneous on its face.” Robinson v. State, 805 N.E.2d
783, 786 (Ind. 2004). A sentence is defective on its face if it violates express
statutory authority in effect at the time the sentence was pronounced. Woodcox
v. State, 30 N.E.3d 748, 751 (Ind. Ct. App. 2015). When claims of sentencing
errors require consideration of matters outside the face of the sentencing
judgment, the alleged errors may only be attacked on direct appeal or, when
appropriate, by petitions for post-conviction relief. Robinson, 805 N.E.2d at 787.
“Claims that require consideration of the proceedings before, during, or after
trial may not be presented by way of a motion to correct sentence.” Id.
[9] Ortiz’s sentence is not facially erroneous. He was ordered to serve a forty-year
sentence for one Class A felony child molesting conviction and twenty years for
the other Class A felony child molesting conviction. On the date Ortiz
committed his offense and was sentenced, the maximum term for a Class A
felony was fifty years, the advisory sentence was thirty years, and the minimum
sentence was twenty years. I.C. § 35-50-2-4. Ortiz was sentenced within those
statutory parameters.
[10] To evaluate Ortiz’s claim that he was sentenced in violation of Blakely, and that
the trial court improperly considered the aggravating and mitigating
circumstances, would require our court to look beyond the face of the
judgment, which we will not do. See Fulkrod v. State, 855 N.E.2d 1064, 1067
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(Ind. Ct. App. 2006). Moreover, our court previously rejected Ortiz’s claim that
his sentence violated Blakely when we considered the direct appeal of his
sentence.
[11] Finally, to the extent that Ortiz is claiming that his sentence warrants
modification, Ortiz is ineligible to request a sentence modification without the
prosecuting attorney’s consent. Indiana Code section 35-38-1-17(k) provides
“[a]fter the elapse of the three hundred sixty-five day period [from the date of
sentencing], a violent criminal may not file a petition for sentence modification
without the consent of the prosecuting attorney.” Ortiz is classified as a violent
criminal. Ind. Code § 35-38-1-17(d). Because the prosecuting attorney did not
consent to Ortiz’s filing of a motion for sentence modification, the trial court
was without authority to modify his sentence and did not abuse its discretion
when it denied Ortiz’s motion. See Newson v. State, 86 N.E.3d 173, 174 (Ind. Ct.
App. 2017), trans. denied.
Conclusion
[12] For all of these reasons, we affirm the trial court’s order denying Ortiz’s petition
for correction of sentence or sentence modification.
[13] Affirmed.
Riley, J., and Tavitas, J., concur.
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