Jose A. Ortiz v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any May 15 2019, 9:21 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kyle E. Cray Curtis T. Hill, Jr. Bennett Boehning & Clary, LLP Attorney General of Indiana Lafayette, Indiana Samantha M. Sumcad Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jose A. Ortiz, May 15, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2919 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Thomas Busch, Appellee-Plaintiff Judge Trial Court Cause No. 79C01-1607-F2-20

Pyle, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-2919 | May 15, 2019 Page 1 of 6

Statement of the Case [1] Jose A. Ortiz (“Ortiz”) appeals the trial court’s order denying his motion to

correct erroneous sentence. He challenges the trial court’s imposition of

consecutive sentences for two of his three convictions, arguing that neither the

sentencing order nor the record from the sentencing hearing sufficiently set

forth the aggravating circumstances that would support a consecutive sentence.

Because a motion to correct erroneous sentence is limited to correcting

sentencing errors apparent on the face of the judgment and Ortiz raises an issue

outside of this context, we conclude that the trial court did not abuse its

discretion by denying his motion to correct erroneous sentence. [2] We affirm.

Issue Whether the trial court abused its discretion by denying Ortiz’s motion to correct erroneous sentence.

Facts [3] In July 2016, the State charged Ortiz with Count 1, Level 2 felony dealing in

methamphetamine; Count 2, Level 3 felony possession of methamphetamine;

Count 3, Level 6 felony domestic battery; Count 4, Class A misdemeanor

invasion of privacy; Counts 5 and 6, Class A misdemeanor resisting law

enforcement; and Count 7, Level 5 felony domestic battery. In February 2017,

Ortiz entered into a plea agreement and pled guilty to Counts 2, 4, and 7. In

exchange, the State agreed to dismiss the remaining four charges as well as a

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pending probation revocation petition in another cause. The plea agreement

provided that sentencing was open to the trial court’s discretion, but it

contained a limitation that the aggregate executed sentence imposed would be

between a minimum of twelve years and a maximum of eighteen years.

Additionally, as part of his plea agreement, Ortiz waived his right to appeal his

sentence, “under any standard of review, including but not limited to, an abuse

of discretion standard and the appropriateness of the sentence under Indiana

Appellate Rule 7(B),” so long as the trial court sentenced him within the terms

set forth in the plea agreement. (App. Vol. 2 at 52). [4] In March 2017, the trial court held a sentencing hearing and issued a sentencing

order, which contained a discussion of relevant aggravating circumstances1 and

mitigating circumstances. The trial court imposed a twelve (12) year sentence

for Ortiz’s Level 3 felony possession of methamphetamine conviction, a four (4)

year sentence for his Level 5 felony domestic battery conviction, and a one (1)

year sentence for his Class A misdemeanor invasion of privacy conviction. The

trial court ordered that the two felony convictions would be served

consecutively to each other and that the misdemeanor conviction would be

served concurrently. Thus, the trial court imposed an aggregate sentence of

sixteen (16) years, which was within the terms of the plea agreement.

Accordingly, Ortiz did not file a direct appeal of his sentence.

1 Among the aggravating factors found by the trial court were Ortiz’s criminal history and his recent violation of probation.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2919 | May 15, 2019 Page 3 of 6 [5] More than one year later, on October 18, 2018, Ortiz filed a motion to correct

erroneous sentence. In this motion, Ortiz challenged the trial court’s

imposition of consecutive sentences, arguing that his possession of

methamphetamine and domestic battery offenses were committed

simultaneously and should therefore be ordered to be served concurrently. The

trial court denied Ortiz’s motion to correct erroneous sentence. Ortiz now

appeals.

Decision [6] Ortiz appeals the trial court’s denial of his motion to correct erroneous sentence

pursuant to INDIANA CODE § 35-38-1-15. We review a trial court’s denial of a

motion to correct erroneous sentence for an abuse of discretion, which occurs

when the trial court’s decision is against the logic and effect of the facts and

circumstances before it. Davis v. State, 978 N.E.2d 470, 472 (Ind. Ct. App.

2012). [7] An inmate who believes he has been erroneously sentenced may file a motion

to correct the sentence pursuant to INDIANA CODE § 35-38-1-15. Neff v. State,

888 N.E.2d 1249, 1250-51 (Ind. 2008). INDIANA CODE § 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 be in writing and supported by a memorandum of law specifically pointing out the defect in the original sentence.

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“The purpose of the statute ‘is to provide prompt, direct access to an

uncomplicated legal process for correcting the occasional erroneous or illegal

sentence.’” Robinson v. State, 805 N.E.2d 783, 785 (Ind. 2004) (quoting Gaddie

v. State, 566 N.E.2d 535, 537 (Ind. 1991)). [8] A statutory motion to correct erroneous sentence “may only be used to correct

sentencing errors that are clear from the face of the judgment imposing the

sentence in light of the statutory authority.” Robinson, 805 N.E.2d at 787.

“Such claims may be resolved by considering only the face of the judgment and

the applicable statutory authority without reference to other matters in or

extrinsic to the record.” Fulkrod v. State, 855 N.E.2d 1064, 1066 (Ind. Ct. App.

2006). If a claim requires consideration of the proceedings before, during, or

after trial, it may not be presented by way of a motion to correct erroneous

sentence. Robinson, 805 N.E.2d at 787. Such claims are best addressed on

direct appeal or by way of a petition for post-conviction relief where applicable.

Id. “Use of the statutory motion to correct sentence should thus be narrowly

confined to claims apparent from the face of the sentencing judgment, and the

“facially erroneous” prerequisite should henceforth be strictly applied[.]” Id. [9] Here, Ortiz challenges the trial court’s imposition of consecutive sentences for

his Level 3 felony possession of methamphetamine and Level 5 felony domestic

battery convictions. He makes a different argument on appeal than he did in

his motion to correct erroneous sentence. Specifically, Ortiz contends on

appeal that a review of the trial court’s order and the record from the sentencing

hearing do “not sufficiently state the aggravating circumstances that warrant

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that these counts to be served consecutively.” (Ortiz’s Br. 7). Nevertheless,

both arguments challenge the trial court’s decision to impose consecutive

sentences and both are an attempt to circumvent his waiver of the right to

appeal his sentence. Moreover, his consecutive sentencing issue is not a proper

claim for a motion to correct erroneous sentence because it “necessarily requires

consideration of the sentencing hearing[.]” See Godby v. State, 976 N.E.2d 1235,

1236 (Ind. Ct. App. 2012) (explaining that the defendant’s motion to correct

erroneous sentence was not the proper method to challenge a sentencing

aggravator). [10] The error that Ortiz alleges is not clear from the face of the sentencing order

and is not appropriate for a motion to correct erroneous sentence. See Robinson,

805 N.E.2d at 787. Because Ortiz has failed to show that the trial court abused

its discretion by denying his motion, we affirm the trial court’s judgment. See,

e.g., Bauer v. State, 875 N.E.2d 744, 746 (Ind. Ct. App. 2007) (affirming the trial

court’s denial of the defendant’s motion to correct erroneous sentence where

the defendant’s claims required consideration of matters in the record outside

the face of the judgment and were, accordingly, not the types of claims properly

presented in a motion to correct erroneous sentence), trans. denied. [11] Affirmed.

Riley, J., and Bailey, J., concur.

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