Attorneys for Appellant Attorney for Appellee
Gregory Paul Kauffman Steve Carter
Indianapolis, Indiana Attorney General of
Indiana
Monika Prekopa Talbot
Deputy Attorney General
____________________________________________________________________________
__
In the
Indiana Supreme Court
_________________________________
No. 71S05-0503-CR-130
Terrease Nesbitt,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
_________________________________
Appeal from the St. Joseph Superior Court, No. 71D08-0304-MR-13,
The Honorable Roland W. Chamblee, Jr., Judge
_________________________________
On Petition To Transfer from the Indiana Court of Appeals, No. 71A05-0404-
CR-200
_________________________________
May 11, 2005
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.[1] 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of Appeals affirmed his convictions in an unpublished memorandum decision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, 124 S. Ct. 2531
(2004). Nesbitt v. State of Indiana, No. 71A05-04004-CR-200, slip op.
(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 Nov. 24, 2004) (unpublished).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, 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. Nesbitt did not appeal 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 convictions for murder and
attempted murder. The judgment of the trial court is affirmed.
All justices concur.
-----------------------
[1] Nesbitt did not file a Reply Brief.