Sevion v. State
| Decision Date | 09 April 2013 |
| Docket Number | No. 18A04–1207–CR–384.,18A04–1207–CR–384. |
| Citation | 985 N.E.2d 820 |
| Parties | Martize SEVION, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Delaware Circuit Court; The Honorable Thomas A. Cannon, Judge; Cause No. 18C05–0908–FB–11.
Mark Small, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General Indianapolis, IN, Attorneys for Appellee.
Martize Sevion appeals his convictions for two counts of Class B felony criminal confinement, two counts of Class C felony intimidation, and one count of Class D felony pointing a firearm, as well as the finding that he is an habitual offender. We affirm in part and reverse in part.
The issues before us are:
I. whether the trial court properly granted Sevion permission to pursue this belated appeal;
II. whether the trial court properly refused to rule on a pro se “Request for Treatment” that he filed or to sua sponte order an assessment of competency;
III. whether his request for a early trial under Indiana Criminal Rule 4(B) was violated;
IV. whether his multiple convictions for confinement, intimidation, and pointing a firearm violate double jeopardy protections;
V. whether there was sufficient evidence to support his convictions;
VI. whether the trial court properly entered judgments of conviction against him for two counts of Class B felony confinement and two counts of Class C felony intimidation; and
VII. whether he waived his right to have a jury decide whether he is an habitual offender.
In Sevion's first appeal, we related the facts behind his convictions as follows:
In the summer of 2008, Bryan Carrier (Carrier) and Angela Brotherton (Brotherton) were addicted to drugs, including cocaine, methadone, and opiates. Brotherton had a bad back and began taking medication for the pain; gradually, both she and Carrier became drug users. They would usually purchase drugs from Sevion, Mustafa Sevion (Mustafa), who was Sevion's brother, and Charles Bruce, a.k.a. Booboo. When Brotherton got arrested for shoplifting, she agreed to buy drugs from Mustafa as an undercover informant for the police department. As a result of Brotherton's undercover work, law enforcement officers arrested Mustafa on September 24, 2008.
The following day, September 25, 2008, Carrier and Brotherton took their daily doses of methadone. At approximately 8 p.m. that day, Carrier, Brotherton, and Sevion got together at the Imperial Apartments on Mulberry Street, in Muncie, Indiana. Sevion, who was on the phone, met with Carrier, as Carrier drove up. Carrier could see Booboo, Marcel Sevion (Marcel), another of Sevion's brothers, and James Crawford (Crawford) standing around a makeshift campfire.
Sevion walked up to Carrier's truck and told him to get out of the car. Carrier and Sevion went in the alley, behind one of the apartment buildings. Sevion finished his phone call and told Carrier that he wanted to check him for a wire. Carrier lifted up his shirt. Seeing no wire, Sevion walked back to Carrier's truck to fetch Brotherton. As Sevion approached the truck, both Carrier and Brotherton noticed Sevion take something off the top of a blue car. Sevion told Brotherton, “[Carrier] wants you to come over here with us.” Brotherton could see Carrier shake his head “no,” but Brotherton nevertheless followed Sevion into the alley.
When Sevion stopped walking, he told them that he wanted to check them both for a wire and told them to take off their clothes. Brotherton asked why, to which Sevion replied “you know why.” As Carrier became upset at Sevion forcing Brotherton to strip, Sevion showed them his semiautomatic handgun, pulling back the slide so a bullet fell out. Brotherton stripped down to her underpants and Carrier took off all his clothes.
Sevion told Brotherton and Carrier to follow him. Carrier demanded to know what Sevion was planning and whether he was going to kill them. Sevion instructed them to cooperate and to do as he ordered. Sevion led them out of the alley, back to the blue car. Booboo, Marcel, and Crawford gathered around them. Sevion ordered Carrier and Brotherton to get into the trunk of the car. When Brotherton asked why, Sevion told her that he was “going to take [her] out in the country and kill [her].” When Carrier started to get into the trunk, Brotherton took off running. At that point, Carrier also started running toward a nearby field.
Terrified to be shot in the back, Brotherton ran into a nearby apartment. Jerome Barnes (Barnes), the apartment's tenant, saw her run screaming into his apartment, clad only in her underpants, while he sat outside eating popcorn. Noticing Barnes' cell phone on the coffee table, Brotherton grabbed it and barricaded herself in the bathroom where she dialed 9–1–1. Barnes followed her into his apartment, and Sevion followed as well. As Brotherton was talking to the 9–1–1 operator, she could feel Sevion pushing against the bathroom door. Sevion managed to open the door, grabbed Brotherton by [her] hair and dragged her out, pointing a gun at her head. Barnes remained in his apartment.
Carrier was chased by Marcel. When Carrier was cornered against a fence, Marcel threatened to hit him and he lifted his shirt as if to indicate to Carrier that he was carrying a gun. Carrier was led back to the car where Booboo and Crawford were waiting. Carrier climbed into the trunk and the lid was closed. He managed to force the back seat down and stuck his head out. Booboo saw him and slammed the seat back, catching Carrier's head between the seat and the car frame.
Outside Barnes' apartment, Booboo grabbed Brotherton's hair from Sevion and yanked her around. From the trunk, Carrier heard Brotherton screaming. He managed to find the emergency release and popped the trunk open. Carrier jumped out of the trunk and started running down Mulberry Street. As the men's attention focused on Carrier, Brotherton fled again. Booboo ran towards Carrier, wielding a beer bottle and hit Carrier directly above his right eye. As Carrier ran on, he encountered Muncie Police Officer Larry Ivy (Officer Ivy). Brotherton ran through the apartments again and also ran into Officer Ivy.
Sevion v. State, No. 18A05–1102–CR–125 (Ind.Ct.App. Nov. 29, 2011), trans. denied (“ S evion I ”).
On October 10, 2008, the State charged Sevion with Class B felony armed robbery, two counts of Class B felony criminal confinement, three counts of Class C felony intimidation, and two counts of Class D felony pointing a firearm, and also alleged that Sevion is an habitual offender. The State later dismissed the armed robbery charge. The confinement charges alleged that Sevion confined Carrier and Brotherton “without the other person's consent, said act being committed while armed with a deadly weapon contrary to the form of the statutes in such cases made and provided by I.C. 35–42–3–3(a)(1)....” App. pp. 34–35.1 The intimidation charges of which Sevion was convicted alleged that he communicated a threat to Carrier and Brotherton “with the intent that [they] engage in conduct against [their] will, to-wit: removing [their] clothing, said act being committed while drawing or using a deadly weapon, contrary to the form of the statutes in such cases made and provided by I.C. 35–45–2–1(a)(1)....” Id. at 38–39.
On October 24, 2008, at a time when it appears Sevion was unrepresented by counsel, he filed a pro se motion for a speedy bench trial. On November 11, 2008, the trial court appointed a public defender to represent Sevion. The trial court also scheduled a bench trial for December 29, 2008. At a pretrial conference held on December 17, 2008, Sevion withdrew his request for a speedy trial, over the State's objection, and the trial court vacated the December 29 trial date.
On August 20, 2009, Sevion filed a pro se “Motion for Request for Treatment.” Id. at 12. The trial court ordered the motion to be stricken and did not rule on it. The motion itself was to be kept in the court's file, although it is not before this court on appeal. At a pretrial discussion held on November 23, 2010, the trial court discussed the motion with Sevion's attorney and indicated that “it was filed under 12–23–7–3 which is treatment in lieu of prosecution” and that the statute could not apply to Sevion's case. Tr. p. 133. Sevion's attorney agreed that the statute did not apply.
On November 30, 2010, the parties appeared for jury trial. However, Sevion indicated before jury selection that he wanted to waive his right to a jury trial and have a bench trial instead. Before accepting Sevion's waiver of his right to a jury trial, the trial court advised him in part as follows:
[T]here is also the issue that there is a notice seeking a habitual offender count or alleging that you are a habitual offender. That would be applicable only if you are convicted of Count 3 of the charging information the way that that's been charged. Uh, and there would be a separate hearing that would follow the trial on that habitual offender count. Again, before the jury could find you guilty of being a habitual offender it would take a unanimous verdict of all twelve (12) members of the jury okay. Now by waiving your right to a jury trial, what you are indicating is that you are willing to forgo twelve (12) members of the jury determining in this case, whether the State has proved their case beyond a reasonable doubt on each count and that matter would be tried to me as the Judge....
Id. at 148–49. After this and other advisements, Sevion affirmed that he was waiving his right to a jury trial.
At the conclusion of the bench trial on December 1, 2012, the trial court found Sevion guilty of two counts of Class B felony criminal confinement, two counts of Class C felony intimidation, and one count of Class D felony pointing a firearm, and also found that Sevion is...
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