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.




Court of Appeals of Indiana | Memorandum Decision 19A-PC-2515 | May 20, 2020                  Page 1 of 9
                                       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

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2515 | May 20, 2020   Page 2 of 9
              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.



      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2515 | May 20, 2020   Page 3 of 9
[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
      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2515 | May 20, 2020      Page 4 of 9
        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.



Court of Appeals of Indiana | Memorandum Decision 19A-PC-2515 | May 20, 2020    Page 5 of 9
                                     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

      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2515 | May 20, 2020   Page 6 of 9
              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).




      Court of Appeals of Indiana | Memorandum Decision 19A-PC-2515 | May 20, 2020          Page 7 of 9
[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


       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2515 | May 20, 2020   Page 8 of 9
       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.



       Court of Appeals of Indiana | Memorandum Decision 19A-PC-2515 | May 20, 2020         Page 9 of 9
