Martez James Sevion, Jr. v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: November 29, 2023
• Docket: 23A-CR-01107
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Opinion 23A-CR-1107 | November 29, 2023 Page 2 of 6 • 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.

Court of Appeals of Indiana | Opinion 23A-CR-1107 | November 29, 2023 Page 3 of 6 [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

Court of Appeals of Indiana | Opinion 23A-CR-1107 | November 29, 2023 Page 4 of 6 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.

Court of Appeals of Indiana | Opinion 23A-CR-1107 | November 29, 2023 Page 5 of 6 [11] Dismissed.

Altice, C.J., and Kenworthy, J., concur.

Court of Appeals of Indiana | Opinion 23A-CR-1107 | November 29, 2023 Page 6 of 6