Attorneys for Appellant Attorney for Appellee
Janice L. Stevens Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Cynthia L. Ploughe
Deputy Attorney General
Indiana Supreme Court
Appellant (Defendant below),
State of Indiana,
Appellee (Plaintiff below).
Appeal from the Marion Superior Court, Criminal Division 6, No. 49G06-0101-CF-21909,
The Honorable Jane Magnus-Stinson, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 49A05-0307-CR-370
May 11, 2005
The Indiana Court of Appeals affirmed Aguilars conviction for murder but granted Aguilars
Petition For Rehearing and remanded to the trial court for resentencing.
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
On appeal, Aguilars 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.
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.
We summarily affirm, see App. R. 58(A)(2), the Court of Appeals principal opinion
affirming Aguilars conviction, see Aguilar, 811 N.E.2d 476. The judgment of the
trial court is affirmed.
All justices concur.