88 N.E.3d 1106 (Ind.App. 2017), 82A04-1609-CR-2074, Jackson v. State

Docket Nº:Court of Appeals Case 82A04-1609-CR-2074
Citation:88 N.E.3d 1106
Opinion Judge:Najam, Judge.
Party Name:Marquell M. JACKSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
Attorney: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
Judge Panel:Kirsch, J., and Brown, J., concur.
Case Date:December 11, 2017
Court:Court of Appeals of Indiana
 
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Page 1106

88 N.E.3d 1106 (Ind.App. 2017)

Marquell M. JACKSON, Appellant-Defendant,

v.

STATE of Indiana, Appellee-Plaintiff.

Court of Appeals Case No. 82A04-1609-CR-2074

Court of Appeals of Indiana

December 11, 2017

Page 1107

Appeal from the Vanderburgh Circuit Court, The Honorable Kelli E. Fink, Magistrate, Trial Court Cause No. 82C01-1510-F1-6686

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

OPINION ON REHEARING

Najam, Judge.

[¶ 1] Marquell Jackson and the State each petition for rehearing following our opinion in Jackson v. State, 84 N.E.3d 706 (Ind.Ct.App. 2017) (" Jackson I " ). In Jackson I, we held, in relevant part, that the trial court committed fundamental error when it 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 at 711-14. 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 714. 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 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.

Page 1108

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...

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