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Indiana Supreme Court Announces Trial Court Must Resentence on All Underlying Felonies After Gang Enhancement Sentence Reversed on Appeal

by Derek Gilna

The Supreme Court of Indiana ruled that following the reversal of a gang enhancement sentence under Ind. Code § 35-50-2-15 the trial court on remand is required to resentence the defendant on all remaining underlying convictions.  

Marquell M. Jackson had been convicted of several criminal offenses and, pursuant to the Indiana gang enhancement statute, had his sentence enhanced by 30 years for gang affiliation. The Court of Appeals reversed the enhancement and instructed “the underlying sentence imposed by the trial court on Jackson’s convictions is not subject to change on remand.”

As noted by the Indiana high court in its opinion, “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.”

The Indiana criminal gang enhancement provision provides for increased penalties for “committing one or more felony offenses in connection with a criminal gang. See generally I.C. § 35-50-2-15.”  If the State establishes an underlying felony conviction, “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).”

The Court explained 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.” The Court further instructed that the trial court’s “authority likewise extends to its determination as to whether the sentences for the underlying felonies should be concurrent or consecutive.” 

Accordingly, the Court remanded to the trial court with instructions to resentence Jackson on each underlying felony. See: Jackson v. State, 105 N.E.3d 1081 (Ind. 2018). 

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