Attorneys for Appellant Attorney for Appellee
Janice L. Stevens Steve Carter
Indianapolis, Indiana Attorney General of
Indiana
Cynthia L. Ploughe
Deputy Attorney General
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__
In the
Indiana Supreme Court
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No. 49S05-0503-CR-125
Arturo Aguilar
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
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Appeal from the Marion Superior Court, Criminal Division 6, No. 49G06-0101-
CF-21909,
The Honorable Jane Magnus-Stinson, Judge
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On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0307-
CR-370
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May 11, 2005
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 resentencing.
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 § 35-50-2-3.
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,
124 S. Ct. 2531 (2004). On January 18, 2005, the Court of Appeals granted
his Petition For Rehearing and remanded to the trial court for
resentencing. 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.E.2d
476. The judgment of the trial court is affirmed.
All justices concur.