      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
