FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
NOVEMBER 9, 2023
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2023 ND 206
State of North Dakota, Plaintiff and Appellee
v.
Sean Michael Kovalevich, Defendant and Appellant
No. 20230101
Appeal from the District Court of Grand Forks County, Northeast Central
Judicial District, the Honorable Donald Hager, Judge.
DISMISSED.
Opinion of the Court by Bahr, Justice.
Kathryn R. Jund, Assistant State’s Attorney, and Nicholas P. Johnson, third-
year law student, under the Rule on Limited Practice of Law by Law Students,
Grand Forks, ND, for plaintiff and appellee; submitted on brief.
Sean M. Kovalevich, self-represented, Bismarck, ND, defendant and appellant;
submitted on brief.
State v. Kovalevich
No. 20230101
Bahr, Justice.
[¶1] Sean Kovalevich appeals from a district court order denying his motion
to correct an illegal sentence under N.D.R.Crim.P. 35(a). Kovalevich is subject
to a pre-filing order prohibiting him from filing “any new litigation or any new
documents in existing litigation” without first obtaining leave of the court. We
treat the court’s current order as denying Kovalevich leave of court to file new
documents. Orders denying leave to file are not appealable. We dismiss
Kovalevich’s appeal.
I
[¶2] In October 2013, a jury found Kovalevich guilty of two counts of gross
sexual imposition and one count of corruption of a minor. The district court
sentenced Kovalevich to 30 years in prison with 10 years of supervised
probation. We affirmed the conviction on appeal. State v. Kovalevich, 2015 ND
11, 858 N.W.2d 625.
[¶3] In November 2015 and April 2017, Kovalevich filed post-conviction relief
applications. The district court denied the applications, which we affirmed on
appeal. Kovalevich v. State, 2017 ND 40, 891 N.W.2d 778; Kovalevich v. State,
2018 ND 184, 915 N.W.2d 644. In September 2018, Kovalevich filed a motion
for relief under N.D.R.Civ.P. 60(b), relating to the denial of his April 2017
application, and filed another post-conviction relief application in November
2018, arguing grounds of newly discovered evidence. The court treated his Rule
60(b) motion as an application for post-conviction relief attempting to relitigate
issues raised in earlier proceedings, and summarily dismissed both the
September 2018 motion and November 2018 application. Kovalevich v. State,
2019 ND 210, ¶ 6, 932 N.W.2d 354. We affirmed on appeal. Id. at ¶¶ 1, 26.
[¶4] In August 2019, the district court declared Kovalevich a vexatious
litigant under N.D. Sup. Ct. Admin. R. 58, and prohibited him from filing any
new litigation or any new documents in existing litigation without first
obtaining leave of the court. The pre-filing order states, in relevant part:
1
Sean Michael Kovalevich is prohibited from filing any new
litigation or any new documents in existing litigation in the courts
of this state as a self-represented party without first obtaining
leave of a judge of the court in the district where the litigation is
proposed to be filed, unless he first files an application with the
court requesting leave to file and the court approves such filing. A
judge may permit the filing of new litigation or any documents in
existing litigation only if it appears the litigation or document has
merit and has not been filed for the purpose of harassment or delay.
If Sean Michael Kovalevich fails to obtain prior written permission
before filing new litigation or any documents in existing litigation,
the Court may dismiss the action and impose punishment as
contempt of court.
(Emphasis added.) See also N.D. Sup. Ct. Admin. R. 58(8)(b) (“A court may
permit the filing of a document in existing litigation by a vexatious litigant
subject to a pre-filing order only if it appears that the document has merit and
has not been filed for the purpose of harassment or delay.”).
[¶5] In January 2023, without obtaining prior written permission, Kovalevich
filed in the district court a motion to correct illegal sentence under
N.D.R.Crim.P. 35(a), in addition to filing a brief supporting the motion and a
request for a hearing. The State filed a response opposing the motion.
[¶6] In March 2023, the district court held a hearing. Kovalevich represented
himself at the hearing. At the outset of the hearing, the court acknowledged
Kovalevich failed to obtain “prior written permission” before filing his motion.
The following exchange occurred:
THE COURT: Okay. This is a Rule 35 motion. Mr.
Kovalevich, you are on a pre-filing order requirement. I did not see
any pre-filing request with the court to file your motion. Did you,
in fact, file such a request through the district court?
MR. KOVALEVICH: I did not. I filed this in the criminal file,
Your Honor.
THE COURT: Right. But did you ask the presiding judge,
being me, that you could actually file a case in this court?
MR. KOVALEVICH: I did not. My understanding was that
that only applied to civil matters.
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THE COURT: It applies to all matters. I’ve reviewed your
request, I’m going to hear it, but in the future you’re going to have
to follow that vexatious litigant requirement.
MR. KOVALEVICH: Certainly, Your Honor.
(Emphasis added.)
[¶7] The district court subsequently denied Kovalevich’s motion, stating his
arguments the sentence was “illegal” or “imposed in an illegal manner” are
“without merit[.]” The court further wrote, “The Court finds Kovalevich’s
sentences are within the statutory range, and the sentencing court did not
substantially rely on an impermissible factor.”
II
[¶8] Kovalevich is subject to a vexatious litigant pre-filing order issued under
N.D. Sup. Ct. Admin. R. 58. It is undisputed Kovalevich did not comply with
the pre-filing order before filing his motion. We must determine whether the
pre-filing order applies to Kovalevich’s motion to correct illegal sentence and,
if it does, the impact of his failure to comply with the pre-filing order.
A
[¶9] At the time of the 2019 pre-filing order, N.D. Sup. Ct. Admin. R. 58(3)(a)
provided, “The presiding judge may enter a pre-filing order prohibiting a
vexatious litigant from filing any new litigation or any new documents in
existing litigation in the courts of this state as a self-represented party without
first obtaining leave of a judge of the court in the district where the litigation
is proposed to be filed.” Rule 58(2)(a) provided, and still provides, “Litigation
means any civil or disciplinary action or proceeding, including any appeal from
an administrative agency, any review of a referee order by the district court,
and any appeal to the supreme court.” On its face, Rule 58 does not apply to
criminal actions or documents filed in criminal actions.
[¶10] The Uniform Postconviction Procedure Act is the exclusive remedy for
collaterally challenging a judgment of conviction or sentence, see N.D.C.C. §
29-32.1-01(4), which this Court has repeatedly held, see, e.g., Kremer v. State,
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2021 ND 195, ¶ 8, 965 N.W.2d 866; State v. Jensen, 2021 ND 119, ¶ 7, 962
N.W.2d 393; Kovalevich, 2019 ND 210, ¶ 10; State v. Atkins, 2019 ND 145, ¶
11, 928 N.W.2d 441. Kovalevich filed his present motion under N.D.R.Crim.P.
35(a), which provides “[t]he sentencing court may correct an illegal sentence at
any time. . . .” Section 29-32.1-01(1)(a), N.D.C.C., of the Uniform Postconviction
Procedure Act similarly provides a person who has been convicted of and
sentenced for a crime may apply for post-conviction relief upon the ground that
“the sentence was imposed in violation of the laws . . . of North Dakota.” See
also N.D.C.C. § 29-32.1-01(d) (providing the post-conviction relief ground that
“[t]he sentence is not authorized by law”). In State v. McClary, this Court
discussed the post-conviction remedies under N.D.R.Crim.P. 35(a) and
N.D.C.C. § 29-32.1-01(1)(a):
We have said “these post-conviction remedies co-exist for similar
purposes as to illegal sentences,” these remedies under comparable
provisions of federal law “are often used interchangeably to attack
a sentence illegal on its face,” and have suggested a motion under
the rule or the statute should be “treated as equivalent to a motion
under both provisions.”
2016 ND 31, ¶ 7, 876 N.W.2d 29 (quoting State v. Nace, 371 N.W.2d 129, 131
n.3 (N.D. 1985)); see also State v. Johnson, 571 N.W.2d 372, 374-75 (N.D. 1997)
(holding second Rule 35(a) motion to correct illegal sentence was barred by
misuse of process provision of the Uniform Postconviction Procedure Act);
DeCoteau v. State, 504 N.W.2d 552, 556 (N.D. 1993) (stating Nace’s “holding
about challenging an illegal sentence by post-conviction proceedings is still
sound”).
[¶11] While these post-conviction remedies “co-exist for similar purposes” and
may be used “interchangeably” to attack an illegal sentence, this Court has
also held “a defendant may not avoid the procedures of the Uniform
Postconviction Procedure Act by designating his motion under a rule of
criminal procedure or by filing his motion in his criminal file, rather than filing
as a new [application] for post-conviction relief.” Atkins, 2019 ND 145, ¶ 11
(relying on N.D.C.C. § 29-32.1-01(4), and concluding defendant’s designation of
his pleading as a motion to withdraw his guilty plea did not preclude the
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district court from considering the pleading as a third application for post-
conviction relief); see also Jensen, 2021 ND 119, ¶ 9 (concluding defendant’s
“request to vacate and dismiss the prosecution is properly treated as an
application for post-conviction relief even though the title of the filing indicated
it was a ‘motion’ under N.D.R.Crim.P. 48(b)(4)”). In Kremer, we reiterated,
“[W]hen a defendant has previously filed an application for post-conviction
relief, a subsequent motion filed under the Rules of Criminal Procedure will be
treated as an application for post-conviction relief when the motion ‘seek[s] to
evade the boundaries of post-conviction proceedings.’” 2021 ND 195, ¶ 8
(quoting Jensen, at ¶ 7).
[¶12] This Court is “not bound by a party’s label and may look at the substance
[of a filing] to determine proper classification.” Jensen, 2021 ND 119, ¶ 9
(quoting Tuhy v. Tuhy, 2018 ND 53, ¶ 20, 907 N.W.2d 351). Kovalevich filed
multiple post-conviction relief applications before the district court declared
him a vexatious litigant and he filed his present motion under N.D.R.Crim.P.
35(a). Post-conviction relief proceedings are civil in nature. Wootan v. State,
2023 ND 151, ¶ 4, 994 N.W.2d 347; Wheeler v. State, 2021 ND 182, ¶ 9, 965
N.W.2d 416. Thus, had Kovalevich sought his relief under the post-conviction
relief statutes, the district court’s leave would have been required to file the
documents under the pre-filing order. Kovalevich’s present motion, therefore,
seeks to evade the boundaries of post-conviction proceedings. As such, the
Uniform Postconviction Procedure Act applies, and we treat his motion as an
application for post-conviction relief despite Kovalevich denominating his
motion as under N.D.R.Crim.P. 35(a).
[¶13] Kovalevich cannot evade the pre-filing order or the procedures of the
Uniform Postconviction Procedure Act by designating his motion as being
under N.D.R.Crim.P. 35(a). Under the facts of this case, we conclude the pre-
filing order applies to Kovalevich’s motion to correct illegal sentence under
N.D.R.Crim.P. 35(a).
B
[¶14] When a pre-filing order is in effect, a district court must make the
required initial determinations whether a particular litigant’s proffered papers
5
will be filed before ruling on the merits of the proposed filing. See Wheeler, 2021
ND 182, ¶¶ 7-9; Everett v. State, 2020 ND 257, ¶ 9, 952 N.W.2d 95; Everett v.
State, 2018 ND 114, ¶ 8, 910 N.W.2d 835. We previously explained:
In Everett, 2020 ND 257, ¶ 9; and Everett, 2018 ND 114, ¶ 8,
despite the order prohibiting new filings without leave of court, the
district court addressed the claims raised in the postconviction
relief application. We held “the court should not have ruled on the
merits of Everett’s postconviction relief claims.” Everett, 2020 ND
257, ¶ 9; Everett, 2018 ND 114, ¶ 8. “If orders limiting abusive
filings are to have credibility with litigants, it is incumbent on
courts to make the required initial determinations whether a
particular litigant’s proffered papers will be filed. Without judicial
adherence to our orders, we have little reason to believe others will
comply.” Everett, 2020 ND 257, ¶ 9; Everett, 2018 ND 114, ¶ 9. We
treated the orders denying Everett’s applications for
postconviction relief as denials of a request for leave to file because
the court concluded Everett’s allegations simply restated
arguments that had been rejected in earlier proceedings. Everett,
2020 ND 257, ¶ 9; Everett, 2018 ND 114, ¶ 10. We dismissed the
appeals because denial of leave to file is not appealable. Everett,
2020 ND 257, ¶ 9; Everett, 2018 ND 114, ¶ 10.
Wheeler, at ¶ 7.
[¶15] Here, the district court did not require Kovalevich to file an application
for leave and obtain prior written permission to file the motion, as specifically
required by the pre-filing order. Rather, the court heard the motion on the
merits without determining on the record if it appears the motion “has merit
and has not been filed for the purpose of harassment or delay.” N.D. Sup. Ct.
Admin. R. 58(8)(b). The court only required Kovalevich comply with the pre-
filing order “in the future.” We conclude the court erred by not requiring
Kovalevich to comply with the pre-filing order.
[¶16] In its order denying the motion, the district court concluded the motion
lacked merit because Kovalevich’s sentences are within the statutory range
and the sentencing court did not substantially rely on an impermissible factor.
Based on the court’s decision the motion lacked merit, we conclude as a matter
6
of law Kovalevich did not meet the meritorious claim requirement in the pre-
filing order. See Wheeler, 2021 ND 182, ¶ 9; Everett, 2018 ND 114, ¶ 10. We
therefore treat the court’s decision denying his motion as a denial of a request
for leave to file. A denial of leave to file is not appealable. Accordingly, we
dismiss Kovalevich’s appeal. See Wheeler, 2021 ND 182, ¶ 9; Everett, 2020 ND
257, ¶ 9; Everett, 2018 ND 114, ¶ 10.
III
[¶17] We treat Kovalevich’s motion to correct illegal sentence as an application
for post-conviction relief, which is civil in nature. Because Kovalevich is
prohibited from filing any new civil litigation or any new documents in existing
civil litigation without leave of the district court, we treat the court’s order
denying the motion as an order denying Kovalevich leave to file new
documents. Orders denying leave to file are not appealable. We dismiss
Kovalevich’s appeal.
[¶18] Jerod E. Tufte, Acting C.J.
Daniel J. Crothers
Lisa Fair McEvers
Douglas A. Bahr
Kari M. Agotness, D.J.
[¶19] The Honorable Kari M. Agotness, D.J., sitting in place of Jensen, C.J.,
disqualified.
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