Aguilar v. State , 2005 Ind. LEXIS 439 ( 2005 )

827 N.E.2d 31 (2005)

Arturo AGUILAR, Appellant (Defendant below),
v.
STATE of Indiana, Appellee (Plaintiff below).

No. 49S05-0503-CR-125.

Supreme Court of Indiana.

May 11, 2005. Rehearing Denied August 11, 2005.

Janice L. Stevens, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Cynthia L. Ploughe, Deputy Attorney General, Attorneys for Appellee.

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 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, 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 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.