COA grants rehearing, but declines to reconsider October opinion

After a granting petitions for rehearing and clarifying its instructions to the trial court on remand, the Indiana Court of Appeals declined Monday to reconsider its original October opinion in an appeal stemming from a series of eight robbery-related charges.

In an Oct. 5 opinion in the case of Marquell M. Jackson v. State of Indiana, 82A04-1609-CR-2074, a unanimous appellate panel vacated a sentencing enhancement imposed on Marquell Jackson after finding the trial court committed fundamental error by allowing the state to amend charging language for a gang enhancement, resulting in the amended language no longer tracking state statute. Specifically, the amended language required Jackson to be a “known member” of a gang, versus “knowingly or intentionally” being in a gang.

But in a petition for rehearing addressed in a Monday opinion, the state argued the amendment was merely “an unintentional typographical or copying error” made at the behest of the trial court. The state also argued Jackson attempted to benefit from the state’s mistake during trial.

The Indiana Court of Appeals, however, declined to reconsider the original Oct. 5, with Judge Edward Najam writing that regardless of whether the mistake was intentional, “Jackson had no notice…that the act alleged would have been an offense” because the amended charge stated a nonexistent offense. Further, under Young v. State, 30 N.E.3d 719, 726-28 (Ind. 2015), Jackson’s counsel had a right to rely on the amended criminal gang enhancement to frame his defense, Najam wrote.

However, the appellate panel did clarify its instructions to the Vanderburgh Circuit Court on remand, which initially required the court to vacate the criminal gang enhancement and the sentence imposed on that enhancement. The state argued in its rehearing petition the trial court should have the discretion to resentence Jackson on his underlying robbery-related convictions, but the Court of Appeals agreed with Jackson that those sentences are not available for reconsideration.

Specifically, Najam wrote on an issue of first impression that the state incorrectly argued a sentence imposed on a criminal gang enhancement is “equivalent” to a sentence on a habitual offender enhancement. That’s because a criminal gang enhancement runs consecutively to other sentences and does not attach to a specific offense, unlike habitual offender enhancements.

Thus, under the language of Indiana Code section 35-50-2-15(e), the reversal of Jackson’s criminal gang enhancement did not affect his other convictions or underlying sentences on those convictions, Najam said.

“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, a Level 1 felony,” the judge wrote. “For the reasons explained above, that was erroneous. … We direct the trial court on remand to correct its judgment conviction, sentencing order, abstract of judgment, and any other relevant orders accordingly.”

Finally, Najam wrote in a footnote to the Monday opinion that the trial court must still correct its judgment and sentence on two convictions – robbery as a Level 2 felony and aggravated battery as a Level 3 felony – that the court concluded in October violated double jeopardy convictions.

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