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

• Court: Indiana Court of Appeals
• Decided: June 22, 2020
• Docket: 19A-CR-1473
• Status: Published

Opinion

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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1473 | June 22, 2020 Page 1 of 5 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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1473 | June 22, 2020 Page 2 of 5 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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1473 | June 22, 2020 Page 3 of 5 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 Court of Appeals of Indiana | Memorandum Decision 19A-CR-1473 | June 22, 2020 Page 4 of 5 (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.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1473 | June 22, 2020 Page 5 of 5