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

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Russell W. Brown, Jr.

King, Brown & Murdaugh, LLC

Merrillville, Indiana

ATTORNEY FOR APPELLEE

Tyler G. Banks

Supervising Deputy Attorney 

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Terrease Nesbitt,

Appellant-Petitioner,

v.

State of Indiana,

Appellee-Respondent.

May 20, 2020

Court of Appeals Case No.

19A-PC-2515

Appeal from the St. Joseph 

Superior Court

The Honorable Elizabeth C. 

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 2 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 
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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convictions in an unpublished memorandum decision and sua 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.
Court of Appeals of Indiana | Memorandum Decision 19A-PC-2515 | May 20, 2020 Page 6 of 9

Discussion and Decision

Standard of Review

[7] Nesbitt appeals the post-conviction court’s denial of his petition for postconviction 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 postconviction 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 postconviction 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.