ORTIZ v. STATE (2025)

MEMORANDUM DECISION

[1] Jesus J. Ortiz appeals, pro se, the St. Joseph Superior Court's order denying his motion to clarify his sentence.

[2] We affirm.

Facts and Procedural History

[3] On June 6, 2006, the trial court convicted Ortiz of two counts of Class A felony child molesting. The court's sentencing order provided that:

On Count II, the Defendant is sentenced to 20 years[’] incarceration. This sentence is to be served first. Pre-sentence jail credit is 186 [days] and applies to the sentence on Count II.

On Count I, the Defendant is sentenced to 40 years[’] incarceration. Execution of 20 years is suspended. This sentence is consecutive to sentence on Count II. Court orders the Defendant to serve the suspended 20 years as a condition of probation in the DOC. Court informs the Defendant that after he completes the mandatory sentences, he may request a modification of the additional 20 years in the DOC as a condition of probation.

Probationary period is for ten years and is to start when the mandatory sentences are completed.

Appellant's App. Vol. 2, p. 19.

[4] Ortiz's convictions and sentences were affirmed on appeal. Ortiz v. State, 71A03-0607-CR-314, WL 2351067 at *1 (Ind. Ct. App. Aug. 20, 2007). Ortiz subsequently filed a petition for post-conviction relief arguing that his appellate counsel was ineffective. The post-conviction court denied his petition, and we affirmed that denial on appeal. Ortiz v. State, 71A03-1704-PC-820, WL 6614501 (Ind. Ct. App. Dec. 28, 2017).

[5] In 2019, Ortiz filed a pro se petition for correction of sentence or sentence modification. The State declined to consent to modification of Ortiz's sentence and argued that his motion should be dismissed accordingly. The trial court denied Ortiz's motion, and he appealed. Ortiz v. State, 19A-CR-1473, WL 3407179 (Ind. Ct. App. June 22, 2020). On appeal, this court determined that Ortiz's sentence was not “erroneous on its face” because he was sentenced within the range allowed for a Class A felony conviction and, thus, that Ortiz was ineligible to request a sentence modification without the prosecuting attorney's consent. Id. at *2.

[6] On December 31, 2024, Ortiz filed a “Motion to Clarify Sentence's Suspended Time and Order an Amended Sentencing Order and Abstract of Judgment.” Appellant's App. Vol. 2, p. 14. Ortiz argued that the trial court's sentencing order was “confusing and contradictory” and “resulted in [him] not receiving the benefit of the 20 years suspended on Count I ․” Id. at 17. The trial court denied his motion.

[7] Ortiz now appeals.

Discussion and Decision

[8] Ortiz argues that the trial court erred when it denied his motion because the “ambiguous language utilized” in the court's sentencing order has prevented him from requesting the opportunity “to serve his suspended time in the form of probation or parole.” Appellant's Br. at 5.

[9] The trial court's sentencing order needs no clarification. The order unambiguously states that the twenty-year sentence imposed on Count II is to be served before the consecutive term imposed for Count I. Appellant's App. Vol. 2, p. 19.

[10] Ortiz claims that the Department of Correction must have disregarded the trial court's sentencing order and has calculated his time served as if the sentence on Count I was to be served before the sentence on Count II. Ortiz relies on the DOC's calculation of his earliest possible release date to support his argument. Appellant's Br. at 6.

[11] Ortiz's argument in this regard is speculative. Ortiz does not argue or cite any portion of the record from which we could conclude that he has raised this claim to the DOC and, therefore, that the DOC has had the opportunity to correct its calculation of the time remaining on the sentence imposed for Count I, if a correction is required. For these reasons, we affirm the trial court's denial of Ortiz's motion to clarify his sentence. Cf. Neff v. State, 888 N.E.2d 1249, 1252 (Ind. 2008) (holding that when an offender believes that the DOC has “mistakenly fail[ed] to give an offender earned credit time, the offender must exhaust administrative remedies before seeking relief from a court”).

[12] Affirmed.

Mathias, Judge.

May, J., and Bradford, J., concur.