Justices OK resentencing after gang enhancement vacated

An Evansville trial court may resentence a would-be robber for his eight convictions after the Indiana Supreme Court ruled that vacating the defendant’s criminal gang enhancement did not rid the trial court of its resentencing authority.

The case of Marquell M. Jackson v. State of Indiana, 18S-CR-113, began in October 2015, when Marquell Jackson and a group of friends decided to rob Logan Orth, who sold marijuana out of his Evansville apartment. When the group of would-be robbers entered the apartment, they found Orth and a nine other people inside smoking.

A gunfight ensued, and Orth and others were injured in the gunfire. Jackson’s group fled but he was later arrested while visiting a wounded friend in the hospital.

Jackson was eventually convicted of eight burglary and robbery counts, as well as a criminal gang enhancement. He was sentenced to an aggregate 60 years — 30 years for the charges and 30 years for the criminal gang enhancement. But the criminal gang enhancement was vacated on appeal after the Indiana Court of Appeals determined the Vanderburgh Circuit Court erred by allowing the state to amend the enhancement charging language to the point where it no longer tracked applicable statutory language.

The appellate court upheld that decision on rehearing and ruled as a matter of first impression that the trial court did not have the authority to resentence Jackson in light of the vacated enhancement, because sentences imposed on criminal gang enhancements run consecutively to other sentences and do not attach to an underlying conviction. That portion of the COA’s decision was the subject of a Supreme Court oral argument in March, when the state argued the appellate ruling would allow Jackson to serve a sentence that was inappropriately light considering the nature of his crimes.

Specifically, the state argued that adhering to the COA’s ruling would only require Jackson to serve 30 years of an original 60-year sentence. Instead, the state said trial courts should be allowed to view sentences as a package, similar to the federal sentencing scheme.

Though the Supreme Court justices in a footnote declined to accept the state’s invitation to evaluate the applicability of the sentencing package doctrine in Jackson’s case, it did agree with the state’s argument regarding the trial court’s resentencing authority on remand from a vacated criminal gang enhancement. Relying on the general inquiry between an enhancement and underlying offenses laid out in Coble v. State II, 523 N.E.2d 228 (Ind. 1998), Justice Christopher Goff wrote Friday that “a criminal gang enhancement increases the punishment for all the underlying felonies the jury or court finds the defendant committed in connection with a criminal gang.”

“Effectively, the legislature has provided a system that groups the felonies underlying a criminal gang enhancement and increases the punishment of that group,” Goff wrote. “Thus, because the criminal gang enhancement increases the punishment for all the underlying felonies, a trial court’s authority on remand after a reversal of such an enhancement extends to resentencing on each underlying felony.”

In Jackson’s case, the jury found the criminal gang enhancement applied to each felony he was charged with, Goff continued. Thus, because the decision to vacate the enhancement affected the sentence imposed on each of those felonies, the trial court on remand “must resentence Jackson on each underlying felony,” he said.

The justices instructed the trial court on remand to follow the portions of the COA’s ruling that were summarily affirmed — including an order to reverse two of Jackson’s convictions that violated double jeopardy protections — and to resentence him on each of the felonies underlying the criminal gang enhancement. All justices concurred.