Marquell M. Jackson, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
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
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 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.
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." Id.
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
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 ...