The opinion
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 20 2020, 8:54 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Russell W. Brown, Jr. Tyler G. Banks
King, Brown & Murdaugh, LLC Supervising Deputy Attorney
Merrillville, Indiana General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terrease Nesbitt, May 20, 2020
Appellant-Petitioner, Court of Appeals Case No.
19A-PC-2515
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Elizabeth C.
Appellee-Respondent. Hurley, Judge
Trial Court Cause No.
71D08-1407-PC-31
Najam, Judge.
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Statement of the Case
[1] Terrease Nesbitt appeals the post-conviction court’s denial of his petition for
post-conviction relief. Nesbitt raises two issues for our review, which we restate
as follows:
1. Whether his appellate counsel rendered ineffective
assistance when he did not challenge the validity of
Indiana’s sentencing scheme under Blakely v. Washington,
542 U.S. 296 (2004), which would have been an issue of
first impression in Indiana at the time of Nesbitt’s direct
appeal.
2. Whether the post-conviction court erred when it
concluded that a witness who purported to recant his trial
testimony was not credible.
[2] We affirm.
Facts and Procedural History
[3] On direct appeal, the Indiana Supreme Court described the procedural history
of Nesbitt’s convictions and appeal as follows:
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
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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convictions in an unpublished memorandum decision and sua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 (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) [(“Nesbitt I”)]. The State filed a Petition [t]o
Transfer, which we granted on March 31, 2005.
Nesbitt v. State, 827 N.E.2d 33, 33 (Ind. 2005) (per curiam) (footnote omitted)
(“Nesbitt II”). After this Court’s decision in Nesbitt I but prior to the grant of
transfer in Nesbitt II, the Indiana Supreme Court decided Smylie v. State, 823
N.E.2d 679 (Ind. 2005). In Smylie, the Court held that Indiana’s sentencing
scheme violated Blakely.
[4] However, in granting the State’s petition to transfer in Nesbitt II, the Indiana
Supreme Court held that relief for Nesbitt under Blakely and Smylie was not
available. As the Court explained:
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.
Nesbitt II, 827 N.E.2d at 33-34.
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[5] Thereafter, Nesbitt filed his petition for post-conviction relief. In that petition,
Nesbitt alleged, in relevant part, that he had received ineffective assistance of
appellate counsel when his counsel failed to preserve a Blakely challenge to
Indiana’s sentence scheme, as applied to Nesbitt. Nesbitt further alleged that he
was entitled to post-conviction relief because a witness from his trial, Antonio
Pettrie, had recanted his original trial testimony that Nesbitt was the person
who had shot the three victims underlying Nesbitt’s convictions for murder and
attempted murder.
[6] Following an evidentiary hearing, the post-conviction court denied Nesbitt’s
petition for post-conviction relief. In relevant part, the post-conviction court
found and concluded as follows:
[Nesbitt] fails to provide any argument as to how Mr. Pettrie’s
testimony is anything other than impeachment of his prior
testimony, as Mr. Pettrie testified to an entirely different set of
facts than he testified to at [Nesbitt’s] original trial.
More importantly, though, the Court finds that Mr. Pettrie’s
evidence is not worthy of credit. [Nesbitt] argues that Mr. Pettrie
had no motive to lie, which makes his testimony credible. The
Court disagrees. Mr. Pettrie clearly expressed his anger at the
State, believing that the State represented to him that he would
be out of prison by the time his daughter was ten years old[] if he
testified truthfully at [Nesbitt’s] trial. Mr. Pettrie is still serving
his sentence and his daughter is at least ten years old, and he was
clearly unhappy about this. The Court finds that Mr. Pettrie had
no motive to tell the truth at the evidentiary hearing. The Court
finds it highly probable that Mr. Pettrie knew if he testified at the
evidentiary hearing that he lied on the stand during [Nesbitt’s]
trial and took the blame for everything that happened back at the
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time of the crime[s], that there could be no significant negative
consequences, and that he would be immune from any further
state action related to those events.
***
[Nesbitt] argues that [his appellate counsel] was ineffective for
failing to challenge his sentence on appeal, thereby waiving his
right to supplement his appeal with argument pursuant to the
United States Supreme Court holding in Blakely . . . . [Nesbitt]
did not call [his appellate counsel] as a witness to explain why he
made the decision he did not to challenge [Nesbitt’s] sentence on
appeal. [Nesbitt] does not argue that the decision, in and of
itself, was a bad decision. The argument is that, in hindsight, it
was a bad decision because it foreclosed his right to make a
Blakely argument.
The Supreme Court did not decide Blakely until three months
after [Nesbitt’s appellate counsel] filed his Notice of Appeal. . . .
The [Indiana] Court of Appeals first interpreted Blakely’s holding
as it pertained to sentencing under Indiana law on October 24,
2004, in Krebs v. State, 816 N.E.2d 469 (Ind. Ct. App. 2004),
approximately two months after [Nesbitt’s appellate counsel had]
filed his appellate brief . . . .
Based upon the information presented at the evidentiary hearing,
and based upon the information known to [Nesbitt’s appellate
counsel] at the time of [Nesbitt’s direct] appeal, the Court does
not find that [Nesbitt’s appellate counsel] failed to present a
significant and obvious issue and that this failure cannot be
explained by any reasonable strategy[.]
Appellant’s App. Vol. 2 at 61-62, 65-66. This appeal ensued.
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Discussion and Decision
Standard of Review
[7] Nesbitt appeals the post-conviction court’s denial of his petition for post-
conviction relief. Our standard of review in such appeals is clear:
“The petitioner in a post-conviction proceeding bears the burden
of establishing grounds for relief by a preponderance of the
evidence.” Campbell v. State, 19 N.E.3d 271, 273-74 (Ind. 2014).
“When appealing the denial of post-conviction relief, the
petitioner stands in the position of one appealing from a negative
judgment.” Id. at 274. In order to prevail on an appeal from the
denial of post-conviction relief, a petitioner must show that the
evidence leads unerringly and unmistakably to a conclusion
opposite that reached by the post-conviction court. Weatherford v.
State, 619 N.E.2d 915, 917 (Ind. 1993). Further, the post-
conviction court in this case entered findings of fact and
conclusions of law in accordance with Indiana Post-Conviction
Rule 1(6). Although we do not defer to the post-conviction
court’s legal conclusions, “[a] post-conviction court’s findings
and judgment will be reversed only upon a showing of clear
error—that which leaves us with a definite and firm conviction
that a mistake has been made.” Ben-Yisrayl v. State, 729 N.E.2d
102, 106 (Ind. 2000) (internal quotation omitted).
Humphrey v. State, 73 N.E.3d 677, 681-82 (Ind. 2017).
Issue One: Effective Assistance of Appellate Counsel
[8] On appeal, Nesbitt first asserts that he received ineffective assistance from his
appellate counsel. As our Supreme Court has explained:
When evaluating an ineffective assistance of counsel claim, we
apply the two-part test articulated in Strickland v. Washington, 466
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U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Helton v.
State, 907 N.E.2d 1020, 1023 (Ind. 2009). To satisfy the first
prong, “the defendant must show deficient performance:
representation that fell below an objective standard of
reasonableness, committing errors so serious that the defendant
did not have the ‘counsel’ guaranteed by the Sixth Amendment.”
McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002) (citing
Strickland, 466 U.S. at 687-88, 104 S. Ct. 2052). To satisfy the
second prong, “the defendant must show prejudice: a reasonable
probability (i.e. a probability sufficient to undermine confidence
in the outcome) that, but for counsel’s errors, the result of the
proceeding would have been different.” Id. (citing Strickland, 466
U.S. at 694, 104 S. Ct. 2052).
Id. at 682.
[9] Further, our Supreme Court has stated:
Ineffectiveness is rarely found when the issue is failure to raise a
claim on direct appeal. Bieghler v. State, 690 N.E.2d 188, 193-94
(Ind. 1997). “‘The decision of what issues to raise is one of the
most important strategic decisions to be made by appellate
counsel.’” Id. (quoting Lissa Griffin, The Right to Effective
Assistance of Appellate Counsel, 97 W. Va. L. Rev. 1, 26
(1994)). We give considerable deference to appellate counsel’s strategic
decisions and will not find deficient performance in appellate counsel’s
choice of some issues over others when the choice was reasonable in light
of the facts of the case and the precedent available to counsel at the time
the decision was made. Bieghler, 690 N.E.2d at 194. We review the
totality of appellate counsel’s performance to determine whether
the defendant received constitutionally adequate assistance. Id.
Taylor v. State, 717 N.E.2d 90, 94 (Ind.1999) (emphasis added).
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[10] Nesbitt’s specific argument is that his appellate counsel “failed to raise a
sentencing issue” on direct appeal under Blakely, which, according to Nesbitt,
“was clearly a significant and obvious issue that should have been raised . . . .”
Appellant’s Br. at 11. But Blakely was not “precedent available” to Nesbitt’s
appellate counsel at the time he filed the notice of appeal. See Taylor, 717
N.E.2d at 94. Moreover, at the time Nesbitt’s appellate counsel filed the brief
on appeal, no Indiana case had applied Blakely to our sentencing scheme. The
Indiana Supreme Court would later recognize that, “[b]ecause Blakely
represent[ed] a new rule that was sufficiently novel that it would not have been
generally predicted, much less envisioned to invalidate part of Indiana’s
sentencing structure, requiring . . . counsel to have prognosticated the outcome
of Blakely or of today’s decision would be unjust.” Smylie, 823 N.E.2d at 689.
[11] In other words, Nesbitt’s appellate counsel cannot be said to have acted
unreasonably and to have rendered ineffective assistance when he did not have
the rare vision to see how Blakely might have later been applied to Indiana’s
sentencing scheme. Id. Thus, the post-conviction court did not err when it
declined to find Nesbitt’s appellate counsel’s performance on direct appeal
constitutionally deficient.
Issue Two: Pettrie’s Change in Testimony
[12] Nesbitt next asserts that the post-conviction court erred when it denied his
petition for relief because he has new evidence that would be material to the
outcome of his original trial, namely, Pettrie’s change in testimony. We have
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considered such arguments before, stating that, for such arguments to merit
relief, the petitioner must establish each of the following:
(1) that the evidence was not available at trial; (2) that it is
material and relevant; (3) that it is not cumulative; (4) that it is
not merely impeaching; (5) that it is not privileged or
incompetent; (6) that due diligence was used to discover it in
time for trial; (7) that the evidence is worthy of credit; (8) that it can
be produced upon a retrial of the case; and (9) that it will
probably produce a different result.
Wallace v. State, 836 N.E.2d 985, 1000 (Ind. Ct. App. 2005) (emphasis added),
trans. denied.
[13] Although Nesbitt addresses each of the above nine elements, the post-
conviction court found Pettrie’s new testimony was merely impeaching, and,
more importantly, the court found as a matter of fact that Pettrie’s new
testimony was not worthy of credit. Like the post-conviction court, we are not
persuaded by Nesbitt’s argument that Pettrie’s new testimony is anything other
than an attempt to impeach himself and other witnesses. Moreover, we are in
no position to challenge the court’s assessment of Pettrie’s credibility.
Accordingly, we cannot say the post-conviction court erred when it concluded
that Nesbitt had not met the requisite showing for relief on this issue.
[14] Affirmed.
Kirsch, J., and Brown, J., concur.
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