Aguilar v. State, 827 N.E.2d 31 (Ind. 2005). · Go Syfert
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Aguilar v. State, 827 N.E.2d 31 (Ind. 2005). Cases Citing This Book View Copy Cite
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Still-good law most often cited alongside it: Blakely (2004)
6 citation events (6 in the last 25 years) across 2 distinct courts.
Top citers, strongest first. 3 distinct citers. How cited ↗
discussed Vacated Kendall v. State (2×)
Ind. Ct. App. · 2008 · confidence high
Once more, in Aguilar v. State, 820 N.E.2d 762, 763 (Ind. Ct.App.2005), decision on reh'g, trans. granted, and opinion vacated by Aguilar v. State, 827 N.E.2d 31 (Ind.2005), cert. denied, 547 U.S. 1058 , 126 S.Ct. 1660 , 164 L.Ed.2d 403 (2006), Aguilar's counsel argued for the first time on rehearing that Aguilar's Sixth Amendment rights, as announced in Blakely , had been violated.
discussed Cited "see" Kenneth Schaefer v. State of Indiana
Ind. Ct. App. · 2013 · signal: see · confidence high
See Aguilar v. State, 811 N.E.2d 476, 479 (Ind. Ct. App. 2004), on reh’g, 820 N.E.2d 762 (Ind. Ct. App. 2005) and trans. granted, opinion vacated on other grounds, 831 N.E.2d 741 (Ind. 2005) and aff’d, 827 N.E.2d 31 (Ind. 2005) (holding that the defendant had time to cool off from an 7 altercation when the defendant killed the victim several hours waited several hours after the altercation); see also Horan v. State, 682 N.E.2d 502, 507 (Ind. 1997) (holding that there was insufficient that defendant acted in sudden heat where sufficient time elapsed affording defendant time for cool reflect…
discussed Cited "see" Kincaid v. State
Ind. · 2005 · signal: see · confidence high
See Aguilar v. State, 827 N.E.2d 31 (Ind.2005) (stating that the Blakely claim was not available because appellant failed to make any challenge to the sentence until after the Court of Appeals had issued a ruling on the merits); Nesbitt v. State, 827 N.E.2d 33 (Ind.2005) (stating that the Blakely claim was not available because appellant failed to make any ' challenge to the sentence whatsoever).
Retrieving the full opinion text from the archive…
Arturo AGUILAR, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below)
49S05-0503-CR-125.
Indiana Supreme Court.
May 11, 2005.
827 N.E.2d 31
Janice L. Stevens, Indianapolis, IN, Attorney for Appellant., Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy At-tornmney General, Attorneys for Appellee.
Per Curiam.
Cited by 4 opinions  |  Published

ON PETITION TO TRANSFER FROM THE INDIANA COURT OF APPEALS, NO. 49A05-0307-CR-370.

PER CURIAM.

The Indiana Court of Appeals affirmed Aguilar's conviction for murder but granted Aguilar's Petition For Rehearing and remanded to the trial court for resentenc-ing.

Background

Arturo Aguilar was convicted of murder and sentenced to the presumptive term of 55 years, plus 10 additional years for aggravating circumstances. See Ind.Code § 35-50-2-8.

On appeal, Aguilar's "Brief Of Defendant/Appellant" and "Reply Brief of Defendant/Appellant" challenged his conviction but made no challenge to his sentence. On July 9, 2004, the Court of Appeals affirmed his conviction. Aguilar v. State, 811 N.E.2d 476, 479 (Ind.Ct.App.2004).

On July 19, 2004, Aguilar filed a Petition For Rehearing contending his sentence should be vacated because it violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). On January 18, 2005, the Court of Appeals granted his Petition For Rehearing and remanded to the trial court for resentenc-ing. Aguilar v. State, 820 N.E.2d 762 (Ind.Ct.App.2005). The State thereafter filed a Petition To Transfer, which we granted on March 24, 2005.

Discussion

In Smylie v. State, 823 N.E.2d 679 (Ind. 2005), we set forth parameters under which an appellant can raise a Blakely claim for the first time on appeal even if the appellant did not preserve such a claim by making an appropriate objection in the trial court. However, we held that "those defendants who did not appeal their sentence at all will have forfeited any Blakely claim." Id. at 691. Aguilar did not appeal his sentence; rather, his only sentencing challenge came after the Court of Appeals issued its decision on the single, non-sentencing issue he raised. Therefore, Aguilar is not entitled to relief under Smylie.

Conclusion

We summarily affirm, see App. R. 58(A)(2), the Court of Appeals' principal opinion affirming Aguilar's conviction, see Aguilar, 811 N.BE2d 476. The judgment of the trial court is affirmed.

All justices concur.

[*33] NESBITT v. STATE Ind. 33 Cite as 827 N.E.2d 33 (Ind. 2005) Terrease NESBITT, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below). No. 71805-0503-CR-130. Supreme Court of Indiana. May 11, 2005. Background: Defendant was convicted in the Superior Court, St. Joseph County, Roland W. Chamblee, Jr., J., of murder, two counts of attempted murder, rape, and criminal deviate conduct, for which he was sentenced to aggregate term of 175 years' imprisonment. The Court of Appeals affirmed conviction, but sua sponte remanded to trial court for resentencing, finding that sentence violated Blakely v. Washington. Transfer was granted. Holding: The Supreme Court held that defendant who did not appeal his sentence forfeited right to Blakely claim. Affirmed. Criminal Law Defendant who did not object to his murder sentence at trial or raise any issue regarding his sentence on appeal forfeited right to Blakely claim. Gregory Paul Kauffman, Indianapolis, IN, Attorney for Appellant. Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Attorneys for Appellee. 1. - Nesbitt did not file a Reply Brief. PER CURIAM. The Indiana Court of Appeals affirmed Terrease Nesbitt's convictions for murder and two counts of Class A felony attempted murder, but remanded his case to the trial court for resentencing. Background Terrease Nesbitt was convicted of murder, two counts of attempted murder, rape, and criminal deviate conduct. The trial court imposed an aggregate sentence of 175 years (55 years for murder, 30 years for one of the attempted murder counts, 50 years for the other attempted murder count, 20 years for rape, and 20 years for criminal deviate conduct). On appeal, Nesbitt's Appellant's Brief challenged his convictions for murder and attempted murder (he did not challenge his other convictions), but made no challenge to his sentence.. On November 24, 2004, the Court of Appeals affirmed his convictions in an unpublished memorandum decision and sua sponte remanded to the trial court for resentencing because, it held, Nesbitt's sentence violated Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 408 (2004). Nesbitt v. State of Indiana, - No. 71A05-0404-CR-200, slip op., 819 N.E.2d 548 (Ind.Ct.App. Nov. 24, 2004) (unpublished). The State filed a Petition To Transfer, which we granted on March 31, 2005. Discussion In Smylie v. State, 828 N.E.2d 679 (Ind. 2005), we set forth parameters under which an appellant can raise a Blakely claim for the first time on appeal even if the appellant did not preserve such a claim by making an appropriate objection in the trial court. However, we held that "those defendants who did not appeal their sentence at all will have forfeited any Blakely claim." Id. at 691. Nesbitt did not appeal

[*34] his sentence at all. Therefore, he is not entitled to relief under Smylie.

Conclusion

We summarily affirm, see App. R. 58(A)(2), that portion of the Court of Appeals' opinion affirming Nesbitt's convie-tions for murder and attempted murder. The judgment of the trial court is affirmed.

All justices concur.