Slaughter, J.
To bring a belated appeal, a criminal defendant must (among other things) be an “eligible defendant” under Indiana Post-Conviction Rule 2. A defendant is “eligible” under this rule if he would have the “right” to bring a direct appeal were it timely. Defendant, Carlos T. Ortiz, pleaded guilty to murder and waived his right to appeal his sentence. His proposed belated appeal argues that the trial court relied on an improper aggravator when imposing sentence.
Just last year, we held in Anderson v. State that a defendant may overcome an appeal waiver if his sentence is “illegal”—meaning it is outside the statutory sentencing range or is unconstitutional. Ortiz, though, does not allege that his sentence is illegal under Anderson’s narrow definition of illegality. His appeal waiver, accordingly, bars him from making this argument on direct appeal. His waiver also means, given the definition of an “eligible defendant”, that Ortiz likewise cannot proceed with his belated appeal. We affirm the trial court’s dismissal of Ortiz’s petition for a belated appeal, but remand with instructions that the dismissal be without prejudice.
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Post-Conviction Rule 2, which concerns belated appeals, governs this case. “The decision whether to grant permission to file a belated notice of appeal or belated motion to correct error is within the sound discretion of the trial court” and is reviewed for an abuse of discretion.
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We proceed in two steps. First, we interpret Post-Conviction Rule 2. Second, we apply our understanding of this provision to Ortiz’s belated appeal and conclude that his petition, on its face, leaves him ineligible for a belated appeal.
We first address who qualifies as an “eligible defendant” to seek a belated appeal under Rule 2. And then we resolve an ongoing split in our appellate court on this question.
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This definition creates a simple rule: A defendant is “eligible” to seek a belated appeal if he “would have the right to challenge” his conviction or sentence in a direct appeal. Ibid.
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Under Anderson, “a sentence is ‘illegal’ only if it is outside the prescribed statutory range or is unconstitutional.”
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Anderson established, indirectly, when a defendant with an appeal waiver is “eligible” to bring a belated appeal under Rule 2. Under this rule, a defendant is eligible for a belated appeal only if he has the right to bring a direct appeal challenging his conviction or sentence. P-C.R. 2. And under Anderson, a defendant is thus “eligible” only if he either (1) did not waive his right to appeal at all or (2) if he did waive it, is alleging his sentence is “illegal”—meaning that his sentence either falls “outside the prescribed statutory range or is unconstitutional.” 269 N.E.3d at 822. In this way, a defendant seeking a belated appeal has the same “right”—however broad or narrow—that he has on direct appeal.
The right to bring a direct appeal does not turn on whether the appeal has merit; criminal defendants often bring appeals that go nowhere. The defendant’s burden is comparable when bringing a belated appeal: A defendant who seeks to file a belated appeal need not prove that his appeal would, if allowed to proceed, carry the day. He need only show that he could have brought his appeal had he filed it timely.
The presence of an appeal waiver does not change this standard. Again, a defendant’s eligibility for a belated appeal does not turn on the merits of his underlying claims. His eligibility turns on whether his claims—assuming they are meritorious—would suffice to overcome the appeal waiver. An appeal waiver, in other words, limits a defendant’s “right to challenge” his conviction or sentence on appeal. P-C.R. 2. Thus, in the same way an appeal waiver often limits a defendant’s “right to challenge” his conviction or sentence on direct appeal, it also limits his ability to bring a belated appeal.
This inquiry is akin to the affirmative defense of failure to state a claim in ordinary civil actions. A motion to dismiss for failure to state a claim “tests the complaint’s legal sufficiency.” Bellwether Props., LLC v. Duke Energy Ind., Inc. 87 N.E.3d 462, 466 (Ind. 2017). “A complaint states a claim on which relief can be granted when it recounts sufficient facts that, if proved, would entitle the plaintiff to obtain relief”. Ibid. Just as a defense under Trial Rule 12(B)(6) rests not on the merits of the allegations, but on whether the allegations, if proved, would entitle the plaintiff to relief, so too here. A defendant’s “eligibility” for a belated appeal rests not on whether his petition alleges a meritorious claim, but on whether the claim would overcome an appeal waiver if timely brought on direct appeal.
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Ortiz’s proffered claim is a far cry from the examples of unconstitutionality recounted in Anderson—like “a sentence based on ‘constitutionally impermissible criteria, such as race’ or the ‘deprivation of some minimum of civilized procedure’ (such as if the parties stipulated to trial by twelve orangutans).” 269 N.E.3d at 823 (quoting United States v. Adkins, 743 F.3d 176, 192–93 (7th Cir. 2014)). To borrow a phrase from the analogous failure-to-state-a-claim parlance, Ortiz’s belated-appeal allegations do not show that his constitutional claim “would entitle [him] to obtain” the requested relief of overcoming his appeal waiver. Bellwether Props., 87 N.E.3d at 466.
For these reasons, we affirm the trial court’s judgment denying Ortiz’s petition for belated appeal, with one modification. We remand to the trial court with instructions to modify its judgment to provide that the petition is dismissed without prejudice, not denied.
Rush, C.J., and Massa and Molter, JJ., concur.
Goff, J., concurs with separate opinion.
Goff, J., concurring.
Although I concur in the Court’s opinion, I write separately for two reasons: first, to explain why I believe the Court’s approach to handling belated appeal waivers offers a practical solution to the problem of judicial inefficiency; and second, to point out the potential for consensus among the Court going forward when analyzing the enforceability of appeal waivers.
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The Court today acknowledges that a defendant’s eligibility under PCR 2 “does not turn on the merits of his underlying claims.” Ante, at 7. Rather, the Court declares, a defendant’s eligibility “turns on whether his claims—assuming they are meritorious—would suffice to overcome the appeal waiver.” Id. The proper inquiry, the Court opines, is analogous to the affirmative defense under Trial Rule 12(B)(6), which “rests not on the merits of the allegations, but on whether the allegations, if proved, would entitle the plaintiff to relief.” Id. Thus, the Court concludes, a “defendant’s ‘eligibility’ for a belated appeal rests not on whether his petition alleges a meritorious claim” but, rather, “on whether the claim would overcome an appeal waiver if timely brought on direct appeal.” Id. at 8.
On the one hand, I hesitate in fully endorsing the Court’s reasoning. As I see it, the question of whether a defendant’s claim “would overcome an appeal waiver if timely brought on direct appeal” necessarily requires a court to determine the merits of his underlying claim. In other words, whether the claim falls beyond the scope of an appeal waiver is the merits question. To quote Haddock v. State, the Court’s solution here would require a trial court “to address the merits of [a defendant’s] putative belated appeal in order to determine that he is not eligible to be heard on the merits of his belated appeal.” 112 N.E.3d 763, 767 (Ind. Ct. App. 2018), trans. denied.
On the other hand, the approach taken by the Court of Appeals in Haddock—addressing the defendant’s diligence and lack of fault while leaving undecided whether his claim fell beyond the scope of his appeal waiver—raises obvious concerns with judicial inefficiency. If a timely direct appellant is barred from litigating a claim covered by his sentencing-appeal waiver, why shouldn’t a PCR 2 court simply screen the belated appellant’s claim to avoid delaying the inevitable and to avoid straining scarce public-defender resources? The Court’s procedure for handling appeal waivers at the PCR 2 stage offers a practical solution to this problem. While nothing in PCR 2 requires the defendant to prove the underlying merits of his appeal issues, he must identify at least some cognizable basis to sustain his petition, allowing the court to make a threshold inquiry into whether a defendant’s claim would suffice to overcome an appeal waiver if raised on direct appeal. And that’s a process I’m comfortable with, especially given the deferential standard of review.
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Anticipating, perhaps, that future cases will continue to pose analytical challenges in determining whether a sentence is “illegal,” the Court today refrains from declaring “that Anderson necessarily dooms every argument alleging improper sentencing aggravators.” Ante, at 9. As an example of an improper aggravator potentially defeating an appeal waiver, the Court points to Judge Vaidik’s concurring opinion in Crouse v. State, where the defendant “claimed that the only aggravator found by the trial court” was invalid, which, if correct, would render his sentence illegal “because consecutive sentences cannot be imposed without at least one aggravator.” Id. (quoting 158 N.E.3d 388, 395–96 (Ind. Ct. App. 2020) (Vaidik, J., concurring in the judgment)). Notably, I cited the same example in my separate opinion in Anderson to support my view, suggesting a common ground and a potential path to consensus in analyzing the perennially challenging issue of the enforceability of appeal waivers.
For the reasons above, I concur in the Court’s holding that Ortiz is not entitled to proceed with his belated appeal.