                                                               FILED
                                                          Aug 24 2018, 2:26 pm

                                                               CLERK
                                                           Indiana Supreme Court
                                                              Court of Appeals
                                                                and Tax Court

                            IN THE

     Indiana Supreme Court
             Supreme Court Case No. 18S-CR-00113

                   Marquell M. Jackson,
                       Appellant (Defendant),

                                 –v–

                       State of Indiana,
                         Appellee (Plaintiff).


         Argued: March 22, 2018 | Decided: August 24, 2018

Appeal from the Vanderburgh Circuit Court, No. 82C01-1510-F1-006686
               The Honorable Kelli E. Fink, Magistrate

      On Petition to Transfer from the Indiana Court of Appeals,
                      No. 82A04-1609-CR-02074



                      Opinion by Justice Goff
 Chief Justice Rush and Justices David, Massa, and Slaughter concur.
Goff, Justice.

   A jury found that Defendant Marquell M. Jackson committed several
criminal offenses in connection with a criminal gang. As a result, the trial
court increased his overall sentence by thirty years according to the
criminal gang enhancement statute. Jackson appealed, and the Court of
Appeals reversed the enhancement. Jackson and the State now dispute
the extent of the trial court’s sentencing authority on remand. This appeal
requires us to determine what, if any, ability a trial court has to resentence
a criminal defendant on the felonies that underlie a criminal gang
enhancement when an appellate court has reversed that enhancement and
remanded to the trial court. Guided by a general inquiry into the
relationship between an enhancement and its underlying offenses, we find
that the criminal gang enhancement statute unambiguously increases the
punishment for all the felonies that underlie the enhancement, and
vacating such an enhancement disturbs the punishment originally
imposed. As such, after an appellate court reverses a criminal gang
enhancement, the trial court on remand must resentence a defendant on
all surviving underlying felonies.


Factual and Procedural History
   On October 26, 2015, Jackson and four friends decided to rob a person
they thought had marijuana. Armed with two guns, they drove to the
person’s apartment building. Four members of the group, including
Jackson, entered the building, made their way to the apartment, and
encountered a group of about ten people smoking marijuana. A gunfight
broke out, and the would-be thieves fled. All told, three of the intruders,
one of the occupants of the apartment, and a neighbor’s brother were
injured in the shooting.

   The State ultimately charged Jackson with nine offenses: two counts of
burglary, as Level 1 felonies (Counts 1 and 2); one count of attempted
robbery resulting in serious bodily injury, as a Level 2 felony (Count 3);
four counts of attempted armed robbery, as Level 3 felonies (Counts 4, 5,
6, and 7); and two counts of aggravated battery, as Level 3 felonies



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(Counts 8 and 9). The State also sought to have Jackson’s potential
sentence enhanced under the criminal gang enhancement statute. See Ind.
Code § 35-50-2-15 (2014 Repl.). 1 After a bifurcated trial, the jury found
Jackson guilty as charged and that the enhancement applied to each count.
The trial court merged Count 2 with Count 1 but otherwise entered
judgments of conviction on each count and accepted the jury’s finding as
to the enhancement. The court ordered that Jackson serve concurrent
sentences of thirty years for Count 1, seventeen-and-one-half years for
Count 3, and nine years each for Counts 4, 5, 6, 7, 8, and 9. It then applied
the statutory enhancement of thirty years to Jackson’s sentence, which
resulted in a sixty-year overall sentence.

  Jackson appealed and argued, among other things, that the trial court
committed fundamental error when it allowed the State to amend the
information for the criminal gang enhancement. The Court of Appeals
agreed and reversed the enhancement. Jackson v. State, 84 N.E.3d 706, 711–
14 (Ind. Ct. App.) (“Jackson I”), clarified on reh’g, 88 N.E.3d 1106 (Ind. Ct.
App. 2017) (“Jackson II”). It instructed the trial court on remand to “vacate
the enhancement and the sentence imposed on it.” Id. at 714.

   Both Jackson and the State petitioned the Court of Appeals for
rehearing seeking clarification of the remand order. Jackson sought
clarification instructing the trial court that it could not resentence him on
the offenses underlying the vacated enhancement, and the State, in
relevant part, requested that the clarification explicitly allow the trial court
to resentence on those underlying offenses. The Court of Appeals granted
the petitions and compared the criminal gang enhancement statute with
the habitual offender enhancement statute and Coble v. State, 523 N.E.2d
228 (Ind. 1988), a case involving a vacated habitual offender enhancement.
Jackson II, 88 N.E.3d at 1108–1110. Based on this comparison, it found that
“nothing about the trial court’s imposition of the underlying sentence, or
the convictions on which the underlying sentence is imposed, required



1Effective July 1, 2016, the statute refers to criminal organizations rather than criminal gangs.
See Pub. L. No. 25-2016, § 29, 2016 Ind. Acts 219–221. Because the statute in effect at the time
of Jackson’s offenses referred to criminal gangs, we will use that language here.



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that the trial court consider the criminal gang enhancement.” Id. at 1110.
Therefore, it concluded, “the underlying sentence imposed by the trial
court on Jackson’s convictions is not subject to change on remand.” Id.

   We granted the State’s petition to transfer to address the trial court’s
sentencing authority on remand after vacating the criminal gang
enhancement, thereby vacating the Court of Appeals opinions in part. See
Ind. Appellate Rule 58(A). We summarily affirm the Court of Appeals on
the other issues addressed in Jackson I and Jackson II. See App. R. 58(A)(2).


Standard of Review
   Resolution of this case requires us to interpret the criminal gang
enhancement statute. “Because this presents a matter of statutory
interpretation, it receives de novo review.” Day v. State, 57 N.E.3d 809, 811
(Ind. 2016).


Discussion and Decision
   Generally, trial courts have broad discretion in formulating appropriate
sentences for criminal convictions. Cardwell v. State, 895 N.E.2d 1219, 1222
(Ind. 2008). But this discretion can be limited when the sentencing occurs
on remand. For example, the nuances of a particular sentence
enhancement, as shown by the enhancement statute and related case law,
can limit a trial court’s sentencing discretion on remand. See, e.g., Coble,
523 N.E.2d at 228–29 (discussing the trial court’s sentencing options on
remand after a habitual offender enhancement had been vacated); Greer v.
State, 680 N.E.2d 526, 527–28 (Ind. 1997) (discussing the trial court’s
sentencing options on remand after the felony underlying a habitual
offender enhancement had been vacated). Because the parties here
dispute the extent of the trial court’s sentencing discretion on remand, we
begin with an overview of the criminal gang enhancement statute.

  The criminal gang enhancement statute increases the penal
consequences for committing one or more felony offenses in connection
with a criminal gang. See generally I.C. § 35-50-2-15. The State must



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initially show that the defendant has committed at least one underlying
felony. See I.C. § 35-50-2-15(b)–(d) (referring to “the offense,” “the felony
offense,” “the underlying felony,” and “the underlying felonies”). See also
State v. Davis, 898 N.E.2d 281, 289 (Ind. 2008). If the State carries this
burden, the statute provides for “an additional fixed term of
imprisonment” based on the underlying felony or felonies. I.C. § 35-50-2-
15(b), (d). This enhancement then runs consecutive to the underlying
sentence and cannot be suspended. I.C. § 35-50-2-15(e)–(f). With this
statutory scheme in mind, we turn to the task at hand: determining the
extent of the trial court’s sentencing authority on remand after vacating a
criminal gang enhancement.


I. The general inquiry illustrated by Coble is
   instructive in determining a trial court’s sentencing
   authority on remand after a criminal gang
   enhancement has been reversed.
   Both parties direct us to our prior decision in Coble as a means to
resolve this matter, and the Court of Appeals below heavily relied on the
case. 2 The State argues that Coble and subsequent cases allow a trial court,
on remand from a reversal of a criminal gang enhancement, to resentence
a defendant on the felonies related to the enhancement. Jackson argues
that Coble plainly prohibits a trial court from resentencing on any felonies
underlying a vacated criminal gang enhancement. Both parties’ reliance
on Coble is partially misplaced. Coble dealt with issues specific to habitual



2In addition to their reliance on Coble, both parties offer extensive arguments regarding
whether this Court should adopt the sentencing doctrine known as the “sentencing package
doctrine” or the “aggregate package theory.” We observe that the legislature has shown a
tendency to grant trial courts more sentencing discretion in recent years. See I.C. § 35-32-1-
1(7) (instructing that the criminal code should be construed to “give judges maximum
discretion to impose sentences based on a consideration of all the circumstances related to the
offense”); Cardwell, 895 N.E.2d at 1222 (discussing the additional discretion granted to trial
courts when the legislature moved from presumptive sentences to advisory sentences).
However, considering the legislature’s ongoing criminal code reform, we decline to evaluate
the doctrine’s applicability in Indiana at this time.



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offender enhancements—not criminal gang enhancements—and cannot be
mechanically applied to disputes outside that context. However, we find
the general inquiry illustrated by Coble instructive here.

   Coble was initially convicted of two counts of burglary and found to be
a habitual offender. Id. at 228. The trial court sentenced him to concurrent
terms of two years on each count. Id. It attached the habitual offender
enhancement to count 2, enhancing it by thirty years. Id. On appeal, this
Court reversed the habitual offender enhancement. Id. After vacating the
enhancement on remand, the trial court sentenced Coble to consecutive
terms of six years on count 1 and eight years on count 2. Id. Coble
appealed again, and this Court reversed the trial court in part. Id. at 228–
29. First, we reversed the change of Coble’s sentence on count 1 because it
“was not directly affected by the habitual offender status.” Id. at 228.
Second, we affirmed the change of the sentence on count 2 because the
attachment of the enhancement to that count increased the punishment for
that burglary offense from two years to thirty-two years. Id. at 229.
Vacating the enhancement thus disturbed the punishment, and we found
it “proper for the trial court to sentence [Coble] on [count 2], and to
impose any sentence permissible under the statute.” Id. (citing Flowers v.
State, 518 N.E.2d 1096 (Ind. 1988)). Finally, we affirmed the trial court’s
change to consecutive sentences finding that the trial court had a duty to
reassess its concurrent/consecutive determination after the initial sentence
for count 2 was set aside. Id.

   Coble provides two takeaways in the context of this appeal. First,
Coble’s narrow holding shows an application of the specific law of habitual
offender enhancements to the two particular offenses Coble committed to
determine the trial court’s sentencing authority on remand. Second, more
broadly, Coble illustrates a general inquiry into how an enhancement
affects the punishment for the offenses the defendant committed to
determine a trial court’s sentencing authority after vacating the
enhancement. We find Coble’s specific application of the habitual offender
enhancement statute unhelpful here, but its general inquiry is instructive
in the context of criminal gang enhancements.




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    A. The specific holdings of Coble are based on nuances of
       the habitual offender enhancement statute and related
       case law—not the criminal gang enhancement statute—
       and do not control here.
   Coble involved a habitual offender enhancement, and its specific
holdings relied on particular aspects of such enhancements. Because this
appeal involves the criminal gang enhancement, which has important
differences from the habitual offender enhancement, Coble’s specific
holdings do not control here.

    A habitual offender enhancement increases punishment based on
recidivism and is not intrinsically related to the underlying offense it
enhances. This enhancement increases the punishment for a current
offense based on the ineffectiveness of past punishment to deter continued
illegal behavior. Funk v. State, 427 N.E.2d 1081, 1086 (Ind. 1981); Hall v.
State, 273 Ind. 507, 515, 405 N.E.2d 530, 535–36 (1980). See generally I.C. §
35-50-2-8 (Supp. 2015). As a result, the habitual offender enhancement is
not intrinsically linked to any particular current offense. See Greer, 680
N.E.2d at 527. Nevertheless, this Court has consistently held that the trial
court must specify to which underlying felony the enhancement applies.
See, e.g., Winn v. State, 748 N.E.2d 352, 360 (Ind. 2001); Johnson v. State, 432
N.E.2d 1358, 1362 (Ind. 1982). See also I.C. § 35-50-2-8(j). 3 This specific
application or “attachment” of the enhancement is necessary to avoid
potential double jeopardy and Eighth Amendment problems. Yager v.
State, 437 N.E.2d 454, 457 (Ind. 1982). Because habitual offender
enhancements do not naturally relate to any particular underlying offense,
the trial court must specifically attach the enhancement to an underlying
offense.

    A criminal gang enhancement, by contrast, is fundamentally related to
its underlying felony or felonies. The enhancement increases punishment



3The legislature recently codified our case law in this regard and supplied a few additional
specific instructions to trial courts. See Pub. L. No. 158-2013, § 661, 2013 Ind. Acts 1605
(adding subsection (j) and specifying the felony to which the enhancement should attach).



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based on the manner in which the defendant committed the underlying
felony or felonies. I.C. § 35-50-2-15(b) (2014 Repl.). Additionally, the
increase in the defendant’s sentence depends on the length of the sentence
for the underlying felony or felonies. I.C. § 35-50-2-15(d). Thus, the
criminal gang enhancement is fundamentally tied to the underlying felony
or felonies. Because of this intrinsic connection and the basis for the
enhanced punishment, the criminal gang enhancement does not
experience the same potential constitutional pressures as the habitual
offender enhancement, and there is no need for the trial court to
specifically “attach” the criminal gang enhancement to an underlying
felony.

   Coble addressed issues related to habitual offender enhancements rather
than criminal gang enhancements. While both enhancements increase the
punishment of crimes, they differ in their aims, requirements, and results.
Because of these differences, Coble cannot be mechanically applied to this
case. The specific holdings of Coble providing a trial court’s sentencing
options on remand after vacating a habitual offender enhancement do not
control a trial court’s options after a criminal gang enhancement has been
vacated.


   B. The general inquiry represented by Coble, however, is
      instructive here.
   Coble’s relevance here is not its narrow holding but its general inquiry
into the relationship between an enhancement and the punishment for the
underlying offenses. This general inquiry asks: For what offense(s) does
the enhancement provide an increased punishment? If the enhancement
provides an increased punishment for a particular offense (or multiple
offenses), the sentence for that offense (or those offenses) can be adjusted
on remand after the enhancement is vacated because vacating the
enhancement disturbs the punishment. Viewed in this light, the specific
holdings of Coble can be understood as an application of this general
inquiry in the context of habitual offender enhancements.

   This general inquiry reflects the realities of sentencing. The Court of
Appeals has noted that “[w]hen a[] habitual offender enhancement is to be


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added to a defendant’s sentence, it certainly is a factor in the trial court’s
decision of whether to impose the presumptive sentence for the
underlying felony or to increase or decrease the presumptive sentence due
to aggravating or mitigating circumstances.” Williams v. State, 494 N.E.2d
1001, 1003 (Ind. Ct. App. 1986). This statement, based on the general
understanding that an enhancement will increase a defendant’s sentence,
applies as equally to criminal gang enhancements as to habitual offender
enhancements. The general inquiry into the connection between the
enhancement and the underlying offense(s) that receives an increased
punishment comports with this commonsense understanding of some of a
trial court’s sentencing considerations.

  We find this general inquiry instructive in determining the trial court’s
authority to resentence Jackson on remand.


II. Based on the statutory relationship between the
    criminal gang enhancement and its underlying
    felonies, a trial court on remand after vacating a
    criminal gang enhancement must resentence a
    defendant on the enhancement’s underlying
    felonies.
   We turn to the criminal gang enhancement statute to determine which
underlying felony or felonies receive an increased punishment as a result
of a criminal gang enhancement. We interpret statutes with a primary
goal in mind: “to fulfill the legislature’s intent.” Day, 57 N.E.3d at 812.
“[T]he ‘best evidence’ of that intent is the statute’s language.” Id. If the
legislature has clearly and unambiguously expressed its intent in the
statute, “we put aside various canons of statutory construction and simply
‘require that words and phrases be taken in their plain, ordinary, and
usual sense.’” KS&E Sports v. Runnels, 72 N.E.3d 892, 898–99 (Ind. 2017)
(citation omitted).

   According to the unambiguous language of the criminal gang
enhancement statute, a criminal gang enhancement increases the


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punishment for all the underlying felonies the jury or court finds the
defendant committed in connection with a criminal gang. The statute
contemplates prosecutions in which a single felony alone or multiple
felonies together provide a basis for the enhancement. I.C. § 35-50-2-
15(d)(1)–(2). The statute then provides that “[a] sentence imposed under
this section shall run consecutively to the underlying sentence.” I.C. § 35-
50-2-15(e). 4 In cases with multiple underlying felonies punished together,
the “underlying sentence” will necessarily be the total sentence for those
underlying felonies. In these situations, the additional term of
imprisonment is “equal to the longest sentence imposed for the
underlying felonies.” I.C. § 35-50-2-15(d)(2). The result of this scheme is
that, when multiple felonies provide the basis for the criminal gang
enhancement, the enhancement increases a defendant’s overall
punishment by a term equal to the longest individual, underlying
sentence. Effectively, the legislature has provided a system that groups
the felonies underlying a criminal gang enhancement and increases the
punishment on the group. Thus, because the criminal gang enhancement
increases the punishment for all the underlying felonies, a trial court’s
authority on remand after a reversal of such an enhancement extends to
resentencing on each underlying felony. The trial court’s authority
likewise extends to its determination as to whether the sentences for the
underlying felonies should be concurrent or consecutive. See Flowers, 518
N.E.2d at 1097–99; Gootee v. State, 942 N.E.2d 111, 113–14 (Ind. Ct. App.
2011).




4Relying primarily on subsection (e) of the statute, Jackson argues that a criminal gang
enhancement results in a separate sentence such that vacating the enhancement leaves the
sentences on the underlying felonies undisturbed. Response to Pet. to Transfer, p. 6. While
we agree that the subsection contemplates some difference in how the terms of imprisonment
are served, we do not read it as creating sentences so separate as to be unrelated. As
discussed throughout this opinion, the criminal gang enhancement statute provides an
enhancement that is intimately related to its underlying felonies as well as the corresponding
sentences. Despite any separation in the service of the sentences, vacating the enhancement
still disturbs the punishment imposed on the underlying felonies. Finding otherwise would
deny the enhancement’s very nature and contravene the legislature’s intent.



Indiana Supreme Court | Case No. 18S-CR-00113 | August 24, 2018                   Page 10 of 12
   A stated purpose of the criminal code also confirms that our reading of
the statute comports with the legislature’s intent. “In determining
legislative intent, we ‘consider the objects and purposes of the
statute . . . .’” Kitchell v. Franklin, 997 N.E.2d 1020, 1026 (Ind. 2013)
(quoting Bushong v. Williamson, 790 N.E.2d 467, 471 (Ind. 2003)). The
legislature has provided that a purpose of the criminal code is to “give
judges maximum discretion to impose sentences based on a consideration
of all the circumstances related to the offense[.]” I.C. § 35-32-1-1(7). Our
reading of the criminal gang enhancement statute provides trial courts
with the discretion to craft an appropriate sentence without undue
concern for what sentence might be left if an appellate court reverses the
enhancement.

   Here, the jury found the criminal gang enhancement applied to each
felony offense charged. Based on the statutory formula, the trial court
sentenced Jackson to an additional fixed term of imprisonment of thirty
years. Thus, Jackson’s punishment for committing the underlying felonies
(Counts 1, 3, 4, 5, 6, 7, 8, and 9) was increased by thirty years because he
committed each offense in the manner specified by the criminal gang
enhancement statute. When the trial court vacates the criminal gang
enhancement on remand, it will necessarily disturb the punishment
originally imposed for the underlying felonies. With the original
sentences disturbed, the trial court on remand must resentence Jackson on
each underlying felony. 5


Conclusion
   Based on the general inquiry from Coble and the unambiguous
language of the criminal gang enhancement statute, a trial court on
remand from a reversal of a criminal gang enhancement is to resentence




5 The trial court may, in its discretion and subject to generally applicable resentencing
limitations, see, e.g., Alabama v. Smith, 490 U.S. 794, 798–803 (1989) (discussing the prohibition
on vindictive sentences), impose the same sentence as originally pronounced for each
underlying felony conviction or a different sentence allowed by statute.



Indiana Supreme Court | Case No. 18S-CR-00113 | August 24, 2018                       Page 11 of 12
the defendant on all the felonies underlying that enhancement. Thus, we
remand to the trial court with instructions to follow the instructions given
by the Court of Appeals that relate to those portions of Jackson I and
Jackson II we have summarily affirmed, including the instruction to vacate
the criminal gang enhancement. 6 We further instruct the trial court on
remand to resentence Jackson on Counts 1, 3, 4, 5, 6, 7, 8, and 9 in
accordance with this opinion.


Rush, C.J., and David, Massa, and Slaughter, JJ., concur.



ATTORNEY FOR APPELLANT
Matthew J. McGovern
Anderson, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Justin F. Roebel
Supervising Deputy Attorney General
Indianapolis, Indiana




6This includes correcting the judgment of conviction, sentencing order, abstract of judgment,
and any other orders that reflect the erroneous attachment of the criminal gang enhancement
to Count 1.



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