                                                                                      FILED
      OPINION ON REHEARING                                                       Dec 11 2017, 10:27 am

                                                                                      CLERK
                                                                                  Indiana Supreme Court
                                                                                     Court of Appeals
                                                                                       and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Matthew J. McGovern                                       Curtis T. Hill, Jr.
      Anderson, Indiana                                         Attorney General of Indiana

                                                                Justin F. Roebel
                                                                Supervising Deputy Attorney
                                                                General
                                                                Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Marquell M. Jackson,                                      December 11, 2017
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                82A04-1609-CR-2074
              v.                                                Appeal from the Vanderburgh
                                                                Circuit Court
      State of Indiana,                                         The Honorable Kelli E. Fink,
      Appellee-Plaintiff.                                       Magistrate
                                                                Trial Court Cause No.
                                                                82C01-1510-F1-6686



      Najam, Judge.


[1]   Marquell Jackson and the State each petition for rehearing following our

      opinion in Jackson v. State, ___ N.E.3d ___, No. 82A04-1609-CR-2074, 2017

      WL 4414200 (Ind. Ct. App. Oct. 5, 2017) (“Jackson I”). In Jackson I, we held, in

      relevant part, that the trial court committed fundamental error when it

      Court of Appeals of Indiana | Opinion on Rehearing 82A04-1609-CR-2074 | December 11, 2017           Page 1 of 9
      permitted the State to amend its charging information on an alleged criminal

      gang enhancement such that the amended charge no longer stated an offense

      under Indiana law. Id. at *4-6. Thus, we “reverse[d] Jackson’s enhancement

      and remand[ed] with instructions that the trial court vacate the enhancement

      and the sentence imposed on it.” Id. at *6. We grant the petitions for

      rehearing, decline to reconsider our opinion in Jackson I, and clarify our remand

      instructions.


                                                        Jackson I

[2]   On rehearing, we first address the State’s argument that we should reconsider

      our opinion in Jackson I because, according to the State, the amendment to the

      charge for the criminal gang enhancement was merely “an unintentional

      typographical or copying error.” State’s Pet. for Reh’g at 7. The State further

      contends that the amendment was made at the behest of the trial court and was

      “not an intentional bait-and-switch or misdirection.” Id. And the State argues

      that Jackson’s “arguments at trial show he was not confused by the State’s

      typographic mistake but instead attempted to benefit from it.” 1 Id.


[3]   We decline to reconsider Jackson I. We ascribe no ill intent to the State in the

      erroneously worded amendment to the charging information. But, regardless of



      1
        In its petition, the State also clarifies an ambiguity in the record with respect to the preliminary and final
      jury instructions. We agree with the State that our references to the four jury instructions in paragraphs 13
      and 23 of Jackson I refer to preliminary instructions. However, the State disregards that final instruction
      number one directed the jury to “keep . . . in mind . . . all of the previous instructions,” which thus
      incorporated the four preliminary instructions into the final instructions. Appellant’s App. Vol. III at 59.
      This clarification does not materially affect our opinion in Jackson I.

      Court of Appeals of Indiana | Opinion on Rehearing 82A04-1609-CR-2074 | December 11, 2017              Page 2 of 9
      whether the mistake was intentional, the following conclusions remain true as a

      consequence of the State’s amended information:


          1. The amended information omitted all references to an essential element
             of the correct offense, namely, the mens rea.
          2. The amended information included as an element of the offense that
             Jackson was “a known member” of a gang, an act that is not within the
             statute.
          3. The State had no discretion to charge the act alleged as if it were a
             criminal offense.
          4. Because the amended charge stated a nonexistent offense, Jackson had
             no notice at the time of the offense that the act alleged would have been
             an offense.
          5. A conviction for the incorrect and confusing amended charge does not
             protect Jackson from double jeopardy.
          6. Jackson’s counsel expressly and substantially relied on the erroneous
             language of the amended charge in presenting Jackson’s defense.
          7. Even if the charge were valid as amended, the State presented no
             evidence, let alone sufficient evidence, to support the offense as charged.

      In its petition for rehearing, the State does not suggest that any of those seven

      conclusions was erroneous. Neither does the State suggest that the authorities

      on which we relied for each of those conclusions are not applicable here.


[4]   Further, with respect to the State’s argument that Jackson’s counsel used the

      erroneous language of the amended charge to Jackson’s benefit at trial, the

      State’s position seems to be that Jackson’s counsel had no right to rely on and

      contest the amended information as written. The State’s argument is directly

      contrary to our Supreme Court’s reasoning and holding in Young v. State, on

      which we relied in Jackson I. See Jackson I, ___ N.E.3d at ___, 2017 WL



      Court of Appeals of Indiana | Opinion on Rehearing 82A04-1609-CR-2074 | December 11, 2017   Page 3 of 9
      4414200, at *6 (citing Young v. State, 30 N.E.3d 719, 726-28 (Ind. 2015)). As the

      Young Court stated with respect to the facts before it:


              The error here . . . placed Defendants in an unworkable Catch-
              22. When the State specifically relied on shooting as the “means
              used” to support the murder charge, Defendants relied on it—as
              they had the right to do—to frame their defense solely in terms of
              a shooting, to the exclusion of any other means.


      30 N.E.3d at 726 (citation omitted). Likewise here, when the State amended

      the charge for the criminal gang enhancement to allege that Jackson was “a

      known member” of a gang and omitted the correct statutory language, Jackson

      relied on it, which he had the right to do, to frame his defense solely in terms of

      whether he was a known member of a gang and to the exclusion of the correct

      statutory language.


[5]   In its petition for rehearing, the State cites no authority for its contention that

      the erroneously amended charge can be justified and excused merely because

      the State’s misstatement of the elements in the charging information was

      unintentional. Indeed, under the State’s apparent argument, the authorities we

      relied on in our holding in Jackson I—and the substantial rights those authorities

      protect—would be readily circumvented whenever the State simply contends on

      appeal that the erroneously worded charge was an honest mistake. We reject

      the State’s apparent position that the actual language used in a charging

      information and the consequences that flow from that language are insignificant

      so long as any mistakes in the drafting of the charge were unintentional, and we

      decline to reconsider Jackson I.

      Court of Appeals of Indiana | Opinion on Rehearing 82A04-1609-CR-2074 | December 11, 2017   Page 4 of 9
                                            Remand Instructions

[6]   We next turn to our remand instructions with respect to the vacated criminal

      gang enhancement. Again, in Jackson I, we instructed the trial court on remand

      to “vacate the enhancement and the sentence imposed on it.” ___ N.E.3d at

      ___, 2017 WL 4414200, at *6. In its petition for rehearing, the State contends

      that we should instruct the trial court on remand that it now has the discretion

      to resentence Jackson on each of his underlying convictions. Jackson, in turn,

      contends that we should instruct the court on remand that the sentences

      imposed on the underlying convictions are not available for reconsideration.

      On this issue of first impression, we agree with Jackson.


[7]   The State’s argument on this issue is that a sentence imposed on a criminal

      gang enhancement is “equivalent” to a sentence imposed on a habitual offender

      enhancement. State’s Pet. for Reh’g at 5. The State is incorrect. The Indiana

      Code unambiguously describes the two enhancements in fundamentally

      different ways.


[8]   At the time Jackson committed his offenses, Indiana Code Section 35-50-2-8(j)

      (2015) explained habitual offender enhancements as follows:


              Habitual offender is a status that results in an enhanced sentence.
              It is not a separate crime and does not result in a consecutive sentence.
              The court shall attach the habitual offender enhancement to the felony
              conviction with the highest sentence imposed and specify which felony
              count is being enhanced. . . .




      Court of Appeals of Indiana | Opinion on Rehearing 82A04-1609-CR-2074 | December 11, 2017   Page 5 of 9
       (Emphasis added.) In contrast, for criminal gang enhancements Indiana Code

       Section 35-50-2-15(e) stated that the “sentence imposed” on the enhancement

       “shall run consecutively [sic] to the underlying sentence.” (Emphasis added.) And—

       consistent with the statute’s direction to have the sentence imposed on the

       criminal gang enhancement “run consecutively [sic] to the underlying

       sentence”—there is no provision in Section 35-50-2-15 that attaches the

       criminal gang enhancement to any of the felonies on which the underlying

       sentence has been imposed. See generally I.C. § 35-50-2-15.


[9]    Thus, a sentence imposed on a criminal gang enhancement is fundamentally

       different from a sentence imposed on a habitual offender enhancement in two

       critical respects. First, unlike with a habitual offender enhancement, a sentence

       imposed on a criminal gang enhancement is consecutive to the aggregate,

       underlying sentence that has been imposed on the convictions. Second, unlike

       with a habitual offender enhancement, there is no direction in the statute that a

       criminal gang enhancement “attach” to any particular conviction. That is, a

       sentence imposed on a habitual offender enhancement increases the sentencing

       range of the felony to which that enhancement is attached. See I.C. § 35-50-2-

       8(j). A sentence imposed on a criminal gang enhancement, on the other hand,

       is an additional term of imprisonment that is consecutive to the aggregate

       sentence imposed on the convictions and is not connected to any one

       conviction. See I.C. § 35-50-2-15(e).


[10]   Further, because of their obvious textual differences a criminal gang

       enhancement may be imposed together with a habitual offender enhancement.

       Court of Appeals of Indiana | Opinion on Rehearing 82A04-1609-CR-2074 | December 11, 2017   Page 6 of 9
       Multiple habitual offender enhancements, by contrast, may not be stacked. See

       Venters v. State, 8 N.E.3d 708, 710-12 (Ind. Ct. App. 2014) (discussing Starks v.

       State, 523 N.E.2d 735 (Ind. 1988)). The State’s request that this Court hold a

       criminal gang enhancement is “equivalent” to a habitual offender enhancement

       would have this Court not only disregard the plain language of the statutes but

       would also, in so doing, call into doubt the authority to impose a criminal gang

       enhancement when the underlying sentence includes a habitual offender

       enhancement.


[11]   In Coble v. State, our Supreme Court held that, when a habitual offender

       enhancement is reversed on appeal, the trial court has no authority on remand

       to resentence the defendant on offenses that were “not directly affected” by the

       reversal of the enhancement. 523 N.E.2d 228, 228 (Ind. 1988). Rather, the trial

       court’s original sentencing judgment with respect to those offenses is a “final

       judgment not subject to change on remand.” Id. The Coble Court further held

       that, given the relationship between a habitual offender enhancement and the

       offense to which that enhancement is attached, the trial court does have the

       authority on remand to resentence the defendant on the attached offense. Id. at

       229.


[12]   Under the plain language of Indiana Code Section 35-50-2-15(e), our reversal of

       the criminal gang enhancement in Jackson I did not affect Jackson’s convictions

       or the underlying sentence imposed on those convictions. Again, Section 35-

       50-2-15(e) expressly directs that the criminal gang enhancement be a separate

       and consecutive sentence to the “underlying sentence” imposed on the

       Court of Appeals of Indiana | Opinion on Rehearing 82A04-1609-CR-2074 | December 11, 2017   Page 7 of 9
       convictions. That is, nothing about the trial court’s imposition of the

       underlying sentence, or the convictions on which the underlying sentence is

       imposed, required that the trial court consider the criminal gang enhancement.

       And, unlike the statutory language for habitual offender enhancements, the

       plain language of the criminal gang enhancement statute does not direct the

       trial court to “attach” the criminal gang enhancement to any particular

       conviction to “enhance” the sentence available for such offenses. I.C. § 35-50-

       2-8(j), -15. Accordingly, the underlying sentence imposed by the trial court on

       Jackson’s convictions is not subject to change on remand.2 Coble, 523 N.E.2d at

       228.


[13]   Still, the State asserts on rehearing that the trial court may have imposed a

       lesser underlying sentence on Jackson in light of the mandatory consecutive

       sentence for the enhancement and, as such, the trial court should have the

       discretion on remand to reconsider the underlying sentence now that we have

       vacated that enhancement. In other words, the State asserts that, given the

       multiplicity of concerns that our trial courts face in crafting a particular

       sentence, any disruption on appeal of those concerns is cause to completely

       reopen sentencing. But the State’s argument is incompatible with our Supreme

       Court’s holding in Coble that the original sentencing judgment with respect to

       the sentences for offenses “not directly affected” by the vacated enhancement is



       2
         However, the trial court shall still correct its judgment of conviction and Jackson’s sentence with respect to
       the convictions we found to be contrary to double jeopardy, as explained in Issue Two of Jackson I. ___
       N.E.3d at ___, 2017 WL 4414200, at *7.

       Court of Appeals of Indiana | Opinion on Rehearing 82A04-1609-CR-2074 | December 11, 2017            Page 8 of 9
       a final judgment not open for reconsideration on remand. 523 N.E.2d at 228.

       The State’s argument is also contrary to Indiana Code Section 35-50-2-15(e),

       which unambiguously directs a trial court to impose a sentence for a criminal

       gang enhancement that is separate and consecutive to the underlying sentence.

       We cannot disregard clear authority of the Indiana Supreme Court or

       unambiguous statutes of the Indiana General Assembly. See Jackson v. State, 50

       N.E.3d 767, 775 (Ind. 2016); Horn v. Hendrickson, 824 N.E.2d 690, 694-95 (Ind.

       Ct. App. 2005).


[14]   The State also notes on rehearing that, contrary to Indiana Code Section 35-50-

       2-15, the trial court here did attach the criminal gang enhancement to Jackson’s

       conviction for burglary, as a Level 1 felony. For the reasons explained above,

       that was erroneous. As a matter of law, the criminal gang enhancement

       imposes a sentence consecutive to the underlying sentence on the convictions

       and is not attached to any of those convictions. We direct the trial court on

       remand to correct its judgment of conviction, sentencing order, abstract of

       judgment, and any other relevant orders accordingly.


[15]   The parties’ petitions for rehearing are granted. We decline to reconsider our

       opinion in Jackson I, and we clarify our remand instructions as stated above.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion on Rehearing 82A04-1609-CR-2074 | December 11, 2017   Page 9 of 9
