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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2919 | May 15, 2019   Page 2 of 6
      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.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2919 | May 15, 2019   Page 4 of 6
      “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

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2919 | May 15, 2019   Page 5 of 6
       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.




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