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Jackson v. State

Court of Appeals of Indiana

December 11, 2017

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

         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, ___ 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.

         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.
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 ...

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