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

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Kyle E. Cray

Bennett Boehning & Clary, LLP

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Samantha M. Sumcad

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Jose A. Ortiz,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

May 15, 2019

Court of Appeals Case No.

18A-CR-2919

Appeal from the Tippecanoe 

Circuit Court

The Honorable Thomas Busch, 

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 2 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 3 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 4 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 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2919 | May 15, 2019 Page 6 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.