Martez James Sevion, Jr. v. State of Indiana ( 2023 )

FILED
Nov 29 2023, 9:34 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Theodore E. Rokita
Anderson, Indiana Attorney General of Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Martez James Sevion Jr., November 29, 2023
Appellant-Defendant, Court of Appeals Case No.
23A-CR-1107
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Angela Warner
Appellee-Plaintiff Sims, Judge
Trial Court Cause No.
48C01-2209-F1-2731
Opinion by Judge Weissmann
Chief Judge Altice and Judge Kenworthy concur.
Court of Appeals of Indiana | Opinion 23A-CR-1107 | November 29, 2023 Page 1 of 6
Weissmann, Judge.
[1] Accused of dealing drugs that caused a fatal overdose, Martez Sevion Jr.
requested a reduction of his $100,000 bond. The trial court denied this request,
and Sevion missed the deadline to appeal the decision. So, Sevion attempted to
resurrect his forfeited appeal via Post-Conviction Rule 2 (PCR 2). But PCR 2
does not apply to the denial of a bond reduction motion, and finding an
insufficient basis to restore Sevion’s forfeited appeal, we dismiss.
Facts
[2] Dissatisfied with the order setting a $100,000 surety bond, Sevion moved to
reduce his bond amount. The timeline of the relevant events is as follows:
• April 3, 2023 – Trial court denied Sevion’s motion to reduce
bond.
• April 18, 2023 – Sevion filed a pro se motion to certify the
order for interlocutory appeal.
• May 1, 2023 – The trial court denied the interlocutory appeal
motion.
• May 3, 2023 – Deadline for Sevion’s direct appeal. And
Sevion separately moved for the appointment of appellate
counsel.
• May 5, 2023 – Trial court appointed appellate counsel.
• May 9, 2023 – Sevion’s counsel filed a PCR 2 request for a
belated appeal.
• May 10, 2023 – Trial court grants the PCR 2 motion.
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• May 16, 2023 – Notice of appeal filed.
[3] In his belated appeal, Sevion argues the trial court erred in denying his motion
to reduce bond. The State cross-appeals, seeking dismissal of this appeal by
claiming Sevion is ineligible to file a belated appeal under PCR 2.
Discussion and Decision
[4] Post-Conviction Rule 2 provides a path to an appeal for some defendants who
have missed the procedural filing deadline. The rule applies only to defendants
“who, but for the defendant’s failure to do so timely, would have the right to
challenge on direct appeal a conviction or sentence after a trial or plea of guilty
by filing a notice of appeal, filing a motion to correct error, or pursuing an
appeal.” Ind. Post-Conviction Rule 2. In other words, PCR 2 is a “vehicle for
belated direct appeals alone.” Howard v. State, 653 N.E.2d 1389, 1390 (Ind.
1995).
[5] We have repeatedly found defendants ineligible to file a belated appeal under
PCR 2 in situations falling outside the rule’s text. For instance, post-conviction
proceedings and probation revocations are excluded from PCR 2 relief because
those scenarios do not challenge a defendant’s “conviction or sentence.”
Dawson v. State, 943 N.E.2d 1281, 1281 (Ind. 2011) (probation); Cummings v.
State, 137 N.E.3d 255, 257 (Ind. Ct. App. 2019) (post-conviction proceedings).
The same result follows here. Because a bond reduction motion does not
challenge “a conviction or sentence,” it similarly does not qualify. Thus, Sevion
was not eligible to file a belated appeal under PCR 2.
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[6] That said, under In re adoption of O.R., we may restore an otherwise forfeited
appeal when there are “extraordinarily compelling reasons” to do so. 16 N.E.3d
965, 971 (Ind. 2014). But rather than argue that no such reasons support
hearing Sevion’s appeal, the State claims O.R. does not apply to defendants
who are ineligible for PCR 2 relief. We disagree.
[7] The State relies on just one case in support of its claim: Core v. State, 122 N.E.3d
974 (Ind. Ct. App. 2019). In Core, this Court found O.R. inapplicable to a post-
conviction petitioner ineligible for PCR 2, reasoning that such a petitioner “has
permanently extinguished his opportunity to appeal.” Id. at 974 (emphasis added).
Yet Core is plainly an outlier in this respect. Cases decided in the wake of Core
have uniformly applied O.R. to defendants ineligible for PCR 2 relief. See, e.g.,
Beasley v. State, 192 N.E.3d 1026, 1029-30 (Ind. Ct. App. 2022) (applying O.R.
to ineligible PCR 2 defendant); Cummings, 137 N.E.3d 255 at 257 n.3 (same).
[8] We also see no justification for not applying O.R. to situations like Sevion’s. In
effect, O.R. acts as a fail-safe where procedural defaults would render forfeiture
of an appeal shockingly unfair. Guiding this principle is the recognition that
procedural rules are simply the means to an end, not the end itself. See O.R., 16
N.E.3d at 971-72 (“[W]e are mindful that our procedural rules are merely
means for achieving the ultimate end of orderly and speedy justice.” (internal
quotation omitted)). Because a defendant’s eligibility for the procedural
mechanisms of PCR 2 has little bearing, if any, on the existence of
“extraordinarily compelling reasons” to hear the merits of his claim, O.R. relief
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is still available to a post-conviction petitioner who fails to timely file a notice of
appeal. Id. at 971.
[9] Of course, a defendant must still avail himself of this relief to receive its benefit.
Sevion did not. Sevion never asserted O.R.’s standard of extraordinarily
compelling reasons in his present appeal or during his time as a pro se
petitioner. The most that can be said is that Sevion asked this Court to exercise
its inherent authority to consider an otherwise waived appeal. Ind. Appellate
Rule 1 (“The Court may, upon the motion of a party or the Court’s own
motion, permit deviation from these Rules.”). But the only basis for Sevion’s
argument is that his appellate counsel was appointed after the filing deadline
had passed. This claim alone is not enough.
[10] First, it does not excuse Sevion’s failure to file the notice of appeal prior to
obtaining counsel. See Shawa v. Gillette, 209 N.E.3d 1196, 1200 n.2 (Ind. Ct.
App. 2023) (holding pro se litigant to the same standard as a licensed attorney).
And second, it does not by itself represent an extraordinarily compelling reason
to consider an otherwise waived appeal. In O.R., the late appointment of
appellate counsel was considered just one fact among several that justified the
restoration of the waived appeal. 16 N.E.3d at 971-72. More importantly, O.R.
involved the alleged deprivation of a “fundamental liberty interest.” Id. at 972.
Sevion nowhere alleges the existence of such an interest, nor any similarly
compelling reason to consider his appeal, and we decline to make these
showings on his behalf.
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[11] Dismissed.
Altice, C.J., and Kenworthy, J., concur.
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