State v. Ortiz, 300 P.3d 786

State v. Ortiz

300 P.3d 786

Utah Ct. App.

2013

Check Treatment

STATE of Utah, Plaintiff and Appellee, v. Daniel Martinez ORTIZ, Defendant and Appellant.

No. 20120198-CA

Court of Appeals of Utah

April 25, 2013

2013 UT App 100

plaints focus exclusively on the validity of his plea and resulting conviction.

¶ 6 Defendant‘s complaints about presentencing irregularities are the “ordinary or ‘run-of-the-mill’ errors regularly reviewed on appeal,” rather than the errors in sentencing that rule 22(e) is designed to address. See Thorkelson, 2004 UT App 9, ¶ 15, 84 P.3d 854. See also Utah R.Crim. P. 22(e). Indeed, it is telling that none of the cases cited by Defendant in support of his rule 22(e) argument involved rule 22(e). See, e.g., State v. Moa, 2009 UT App 231, 220 P.3d 162; State v. Alexander, 2009 UT App 188, 214 P.3d 889; State v. Lehi, 2003 UT App 212, 73 P.3d 985. All of these cases found error in the underlying convictions or pleas; none dealt with the resulting sentence, much less with setting a sentence aside as illegal. See, e.g., Moa, 2009 UT App 231, ¶ 15, 220 P.3d 162 (holding that inconsistencies in the plea affidavit and colloquy constituted error); Alexander, 2009 UT App 188, ¶ 14, 214 P.3d 889 (holding that the defendant did not sufficiently understand the elements of the crime to which he pled guilty); Lehi, 2003 UT App 212, ¶ 17, 73 P.3d 985 (holding that failure by the trial court to strictly adhere to rule 11 justified withdrawal of plea). Insofar as Defendant‘s claims are supported by facts relating only to the plea process, they are merely a “veiled attempt to challenge the underlying conviction by challenging the sentence,” and this court is barred from considering them. Candedo, 2010 UT 32, ¶ 9, 232 P.3d 1008. See State v. Telford, 2002 UT 51, ¶ 7, 48 P.3d 228; Thorkelson, 2004 UT App 9, ¶¶ 15, 17, 84 P.3d 854.

¶ 7 Defendant next argues that his sentence was illegal because it exceeded the maximum penalty permitted by statute. Defendant pled guilty to obstruction of justice, a second degree felony given the underlying conduct. See Utah Code Ann. § 76-8-306(1) (LexisNexis 2008). However, the amended information, which was the focus of the plea colloquy, was reviewed by Defendant, and was incorporated into the plea agreement, clearly stated that the offense was subject to an in-concert enhancement under section 76-3-203.1, elevating Defendant‘s crime to a first degree felony. See id. § 76-3-203.1(3). Defendant was then sentenced to five years to life—a sentence permissible under Utah law for a first degree felony conviction. See id. § 76-3-203(1) (LexisNexis 2012). Defendant pled guilty to an offense subject to enhancement, signed a plea agreement clearly identifying his crime as a first degree felony, and received a sentence appropriate for a first degree felony conviction. We therefore see no illegality in Defendant‘s sentence.

¶ 8 Defendant also contends that there was insufficient evidence to support the enhancement, that it was never referenced during the plea hearings, and that he never admitted to the elements required for the enhancement in any way, including in the signed plea affidavit. But all of these arguments go to the adequacy of the plea hearing, the voluntariness of his plea, and the propriety of the resulting conviction—not to whether Defendant‘s sentence was within the range permitted by statute based on the first degree felony to which he pled guilty. Defendant‘s arguments concern the types of errors that should have been the subject of a motion to withdraw his guilty plea and an appeal from any denial of such a motion; they are not appropriate grounds for invalidating his sentence as illegal. Accordingly, Defendant‘s appeal is unavailing.

Judge GREGORY K. ORME authored this Memorandum Decision, in which Judges JAMES Z. DAVIS and WILLIAM A. THORNE JR. concurred.

Samuel P. Newton, for Appellant.

John E. Swallow and Michelle M. Young, Salt Lake City, for Appellee.

Memorandum Decision

DAVIS, Judge:

¶ 1 Daniel Martinez Ortiz appeals his conviction for aggravated robbery, a first degree felony, see Utah Code Ann. § 76-6-302 (LexisNexis 2012), on the ground that he was unfairly prejudiced by the trial court‘s denial of his motion for permission to cover his facial tattoos at trial.¹ We affirm.

¶ 2 Ortiz asserts that the tattoos were inadmissible under rules 401, 402, and 403 of the Utah Rules of Evidence because they were irrelevant and unfairly prejudicial. See generally Utah R. Evid. 401, 402, 403. Ortiz‘s argument rests on the assumption that the tattoos constituted evidence and that their admissibility was therefore governed by the Utah Rules of Evidence. However, as the State points out, Ortiz‘s tattoos were not admitted or used as evidence in this case, and their mere visibility as part of Ortiz‘s general appearance was not subject to the evidentiary limitations of rules 401, 402, and 403.

¶ 3 Ortiz cites a number of cases from other jurisdictions analyzing the admissibility of tattoo evidence under evidentiary rules. However, in each of those cases, the defendants’ tattoos were actually used as evidence and referenced at trial. See United States v. Smith, 348 Fed.Appx. 636, 638-39 (2d Cir. 2009) (reviewing the admissibility of a photograph of the defendant‘s tattoo depicting a skeleton firing a gun and the words “D‘EVILS WITHIN“); United States v. Newsom, 452 F.3d 593, 595-604 (6th Cir.2006) (considering prejudice resulting from the prosecution‘s questioning witnesses about the defendant‘s tattoos depicting firearms and gang-related symbols); United States v. Thomas, 321 F.3d 627, 630-33 (7th Cir.2003) (reviewing the admissibility of a photograph of the defendant‘s tattoo depicting two revolvers); United States v. Irvin, 87 F.3d 860, 862, 865-66 (7th Cir.1996) (considering the prejudicial impact of testimony describing a tattoo and its connection to a motorcycle gang); Boliek v. Delo, 912 F.Supp. 1199, 1212-13 (W.D.Mo. 1995) (reviewing the admissibility of testimony that the defendant had a tattoo depicting a smoking double-barreled shotgun and the words “Death Dealer“), rev‘d on other grounds sub nom, Boliek v. Bowersox, 96 F.3d 1070 (8th Cir.1996); Belmar v. State, 279 Ga. 795, 621 S.E.2d 441, 444-46 (2005) (reviewing the admissibility of a photograph of a tattoo that read “12 gauge” where the alleged crime was committed with a 12-gauge shotgun); Brooks v. State, 903 So.2d 691, 699-700 (Miss.2005) (reviewing the admissibility of evidence connecting the defendant‘s tattoo to gang activity); State v. Huff, 145 Ohio App.3d 555, 763 N.E.2d 695, 703 (2001) (evaluating prejudice where on “cross-examination, the state had [the defendant] display his tattoos to the jury and asked him what the tattoos meant and why he wore the

tattoos” and suggested to the jury that the tattoos were gang-related).

¶ 4 Here, neither the State nor any of the witnesses referred to Ortiz‘s tattoos or their meaning, and no other evidence drew the tattoos to the attention of the jury. The tattoos were merely visible on Ortiz‘s face and served no apparent evidentiary purpose.² Because the tattoos did not relate to any alleged fact at issue, they did not constitute evidence and were therefore not subject to the rules of evidence. See generally Black‘s Law Dictionary 635 (9th ed.2009) (defining “evidence” as “[s]omething (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact“); 31A C.J.S. Evidence § 2, at 18-19 (2008) (“Evidence is the demonstration of a fact; it signifies that which demonstrates, makes clear, or ascertains the truth of the very fact or point at issue, either on the one side or on the other. In legal usage, the term ‘evidence’ includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved.” (footnotes omitted)). Accordingly, we reject Ortiz‘s argument that the tattoos constituted inadmissible evidence and that he therefore should have been permitted to cover them, and we affirm Ortiz‘s conviction.

Judge JAMES Z. DAVIS authored this Memorandum Decision, in which Judges CAROLYN B. McHUGH and STEPHEN L. ROTH concurred.

Notes

We are aware of no rule or statute requiring a defendant to obtain permission to cover up tattoos, although there are measures available to aid in identification that might justify requiring a defendant to display his tattoos where the tattoos are relevant, see Utah R.Crim. P. 16(h) (listing activities the accused may be required to engage in for identification purposes, such as “cut[ting] hair or allow[ing] hair to grow to approximate appearance at the time of the alleged offense“).

Although the State asserts that the tattoos may have aided the witnesses in identifying Ortiz, none of the witnesses cited the tattoos as the basis of their identification or otherwise referred to the tattoos. Ultimately, it is difficult to see how the trial court‘s ruling prejudiced Ortiz. We disagree with Ortiz‘s assertion that tattoos carry the same indicia of guilt as prison garb or handcuffs. See generally ; . While tattoos might carry a negative connotation for some, they are not exclusively associated with prisoners or criminals the way prison clothing and handcuffs are. Unlike prison garb, tattoos are voluntarily donned by the defendant and, once created, are part of his regular appearance. Furthermore, in this case, the jurors were specifically asked whether the facial tattoos would affect their ability to be fair and impartial and none of the jurors indicated that they would. If anything, the defense used Ortiz‘s tattoos to its advantage by suggesting that the witnesses’ failure to mention his tattoos undermined the credibility of their identifications.

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