State of Indiana v. Augustine Armando Gomez Jr.
Supreme Court Case No. 25S-CR-14
Indiana Supreme Court
June 30, 2026
Massa, Justice
Argued: October 2, 2025 | Direct Appeal from the Tippecanoe Superior Court, No. 79D01-2310-F5-000214, The Honorable Randy J. Williams, Judge
Opinion by Justice Massa
Justice Slaughter concurs.
Justice Molter concurs in result.
Chief Justice Rush concurs in result in part and dissents in part with separate opinion in which Justice Goff joins.
Our law is clear: a person with a prior felony conviction may not carry a handgun in Indiana. The prohibition applies whether the prior felony conviction occurred in Indiana or a sister state. If such felons are caught in possession they can be charged with a misdemeanor, or a level 5 felony if their conviction occurred within the last 15 years. Here, a defendant with a recent prior Illinois felony conviction was alleged to have possessed a handgun in Indiana. In reviewing the State‘s charging information and probable cause affidavit, the trial court applied the wrong section of our reference statute, struck down the statute as being unconstitutional and speculated that our precedent in State v. Hancock, 65 N.E.3d 585 (Ind. 2016), was wrongly decided, thereby urging its reconsideration.
Finding Hancock inapplicable to the case at hand, we decline the invitation to revisit it. Instead, we apply the correct statutory provision and interpretation to reverse and reinstate the charges.1
Facts and Procedural History
Defendant Augustine Armando Gomez Jr., was arrested for domestic violence in Tippecanoe County. His wife told police at the scene he had a gun in his backpack and a felony conviction in his background. The State charged Gomez with three crimes: Felony Domestic Battery in Count I (not the subject of this appeal), Misdemeanor Unlawful Carrying of a Handgun in Count II (in essence, carrying with a prior felony conviction at any time) and Count III, Felony Unlawful Carrying (carrying with a prior felony conviction within the past 15 years). Counts II and III were specifically alleged as follows.
Count II: On or about August 25, 2023, in Tippecanoe County, State of Indiana, Augustine Armando Gomez Jr., did knowingly or intentionally carry a handgun, while being a person convicted of a federal or state offense punishable by a term of imprisonment exceeding one (1) year; All of which is contrary to the form of the statute in such cases made and provided, to wit:
I.C. 35-47-2-1.5(b) andI.C. 35-47-2-1.5(e) , and against the peace and dignity of the State of Indiana.
App. Vol. II at 15.
Count III: On or about August 25, 2023, in Tippecanoe County, State of Indiana, Augustine Armando Gomez Jr., did knowingly or intentionally carry a handgun while being a person convicted of a federal or state offense punishable by a term of imprisonment exceeding one (1) year, while having a prior felony conviction in the previous fifteen years, to wit: on August 22, 2016, Augustine Gomez was convicted of Aggravated Unlawful Use of a Weapon/Vehicle, a Felony, in the Circuit Court of Cook County, State of Illinois, under cause number 2015CR138920; All of which is contrary to the form of the statute in such cases made and provided, to wit:
I.C. 35-47-2-1.5(b) andI.C. 35-47-2-1.5(e)(2)(B) , and against the peace and dignity of the State of Indiana.
Id. at 16. Moreover, the probable cause affidavit, which can be referenced in assessing whether a defendant has sufficient notice of the crime he must defend, stated: “Affiant is familiar with prior court records which show on August 22, 2016, Augustine Gomez was convicted of Aggravated Unlawful Use of a Weapon/Vehicle, a Felony, in the Circuit Court of Cook County, State of Illinois, under cause number 2015CR138920.” App. Vol. II at 17 (emphasis added).
Notwithstanding the evident clarity of the charges and affidavit, Gomez moved to dismiss Counts II and III, asserting that the offenses were not sufficiently pled, did not constitute an offense, and were
Standard of Review
“We review a trial court‘s ruling on a motion to dismiss a charging information for an abuse of discretion.” A.-H.Y v. State, 975 N.E.2d 1273, 1276 (Ind. 2012). “‘An abuse of discretion occurs when the trial court‘s decision is clearly against the logic and effect of the facts and circumstances before it.‘” Id. (quoting Hoglund v. State, 962 N.E.2d 1230, 1237 (Ind. 2012)). “A trial court also abuses its discretion when it misinterprets the law.” Id. (citing State v. Econ. Freedom Fund, 959 N.E.2d 794, 800 (Ind. 2011)). Generally, “courts have the inherent authority to dismiss criminal charges where the prosecution of such charges would violate a defendant‘s constitutional rights.” State v. Davis, 898 N.E.2d 281, 285 (Ind. 2008) (citation omitted).
This Court reviews constitutional questions de novo. Horner v. Curry, 125 N.E.3d 584, 588 (Ind. 2019). However, “we generally avoid addressing constitutional questions if a case can be resolved on other grounds.” Girl Scouts of S. Ill. v. Vincennes Ind. Girls, Inc., 988 N.E.2d 250, 254 (Ind. 2013).
A trial court may, upon motion of the defendant, dismiss a charging information for a number of statutory reasons, including failure to state facts constituting an offense or failure to state the offense with sufficient certainty.
I. Count II is Sufficiently Certain and Constitutes an Offense
“The purpose of a charging information is to provide a defendant with notice of the crime of which he is charged so that he is able to prepare a defense.” State v. Katz, 179 N.E.3d 431, 441 (Ind. 2022) (citation omitted). To sufficiently provide notice, an information “generally need[ ] only contain a statement of the essential facts constituting the offense charged, as well as the statutory citation, the time and place of the commission of the offense, [and] the identity of the victim.” Pavlovich v. State, 6 N.E.3d 969, 975 (Ind. Ct. App. 2014) (internal quotation marks omitted), trans. denied. While we do require a level of specificity, “[T]he State is not required to include detailed factual allegations in a charging information.” Laney v. State, 868 N.E.2d 561, 567 (Ind. Ct. App. 2007), trans. denied. Moreover, “where a charging [information] may lack appropriate factual detail, additional materials such as the probable cause affidavit supporting the charging instrument may be taken into account in assessing whether a defendant has been apprised of the charges against him.” State v. Laker, 939 N.E.2d 1111, 1113 (Ind. Ct. App. 2010), trans. denied. “[S]ince the charging information and probable-cause affidavit are filed together, they should be viewed in tandem to determine if they satisfy the goal of putting the defendant on notice of the crimes with
As our law permits reading the probable cause affidavit together with the charging information, we find no deficiencies. Gomez was sufficiently put on notice of the Illinois felony conviction elemental to the State‘s charge. Id.
In addition to notice requirements, a charging information that fails to state facts that constitute an offense may also be dismissed. The charging information would be considered facially deficient if the factual allegations do not align with the elements of a criminal statute. Hernandez v. State, 220 N.E.3d 68, 71 (Ind. Ct. App. 2023). Here, there are no such defects in the charge as alleged because the facts alleged constitute an offense under
The trial court also dismissed Count II for a failure to state a criminal offense. The standard for determining if the information states an offense is if, taking the facts alleged in the information as true, the information failed to allege the defendant committed a criminal offense. See State v. Dickens, 261 N.E.3d 778, 781 (Ind. Ct. App. 2025), trans. denied. Even though Count II did not specify the exact Illinois statute under which Gomez was convicted, he was put on notice through the probable cause affidavit. Such an alleged deficiency in the charging information could not have misled Gomez or failed to give him notice of the charge filed against him. See Gordon v. State, 645 N.E.2d 25, 27 (Ind. Ct. App. 1995), trans. denied.
Gomez was thus provided sufficient notice that he was being charged with a misdemeanor count (and felony count) of unlawful possession with the correct Indiana Code cites, with specific reference to the underlying predicate felony conviction, when and where it was entered, and under what cause number. He was entitled to no more.
The trial court also dismissed Count III because it found the charging information was not “sufficiently certain” and did not state facts that “constitute an offense.” On both points, the trial court erred.
Like Count II, we find that Count III is sufficiently certain and constitutes an offense. The charging information names Gomez‘s Illinois conviction, specifies that it was a felony and includes the conviction date which was within fifteen years of the Indiana offense.
Even though the charging information did not provide an Illinois statutory cite for his prior offense, when read with the probable cause affidavit, we find that Gomez was sufficiently put on notice by reference to the title of his offense, its cause number and date of conviction. The information also states that the Illinois conviction was a “felony,” which was punishable by more than one (1) year of imprisonment, the common and statutory definition of the term. See e.g.,
We also find the charging information states facts that constitute an offense in Indiana. For Count III, the State can charge Gomez with a level 5 felony for unlawful carrying of a handgun under
The State appropriately enhanced this charge to a level 5 felony because the information states that Gomez has a prior felony conviction from August 22, 2016, of Aggravated Unlawful Use of a Weapon/Vehicle in Illinois. As this was a prior felony committed within fifteen years of the Indiana offense, Count III survives. The charging information states allegations that align with the elements of a criminal statute; therefore, it is not facially deficient. Hernandez, 220 N.E.3d at 71.
For all these reasons, we find the trial court abused its discretion when it dismissed Count III.
III. Count III was Incorrectly Dismissed for Constitutional Reasons
As for the constitutional claim, the controversy finds its roots in Title 1 of the Indiana Code, a corner we rarely visit, as the substance of our criminal law is contained in Title 35. We begin by analyzing the relevant statutes then explaining why Hancock is not applicable.
A. The Trial Court Misapplied the Reference Statute
A misapplication of
Gomez was charged under
(b) Except as provided in subsections (c) and (d), the following persons may not knowingly or intentionally carry a handgun:
- (1) A person convicted of a federal or state offense punishable by a term of imprisonment exceeding one (1) year.
…
(e) A person who violates this section commits unlawful carrying of a handgun, a Class A misdemeanor. However, the offense is a Level 5 felony if:
- (2) the person:
- (B) has been convicted of a felony within fifteen (15) years before the date of the offense.
Subsection (b) defines the basic elements of the offense, while subsection (e) defines and determines its seriousness. A prior felony conviction is an essential element of the offense requiring little interpretation or construction. But at the outset of the Code, the General Assembly in recent years has also given us
(a) As used in this section, “reference to a conviction for an Indiana criminal offense” means both a specific reference to a conviction for a criminal offense in Indiana (with or without an Indiana Code citation reference) and a general reference to a conviction for a class or type of criminal offense, such as:
- (1) a felony;
- (2) a misdemeanor; . . .
(b) . . . a reference to a conviction for an Indiana criminal offense appearing within the Indiana Code also includes a conviction for any of the following:
- (1) An attempt to commit the offense . . .
- (2) A conspiracy to commit the offense
- (3) A substantially similar offense committed in another jurisdiction … even if the reference to the conviction for the Indiana criminal offense specifically refers to an
“Indiana conviction” or a conviction “in Indiana” or under “Indiana law” or “laws of this state.”
This reference statute was adopted in 2020. Since then, our Court has never been asked to review its application—until today. The reference statute provides that references to convictions can either be “general” or “specific.” If a statute references a specific Indiana crime, it covers foreign convictions if they are “substantially similar.” However, if the statute merely references a general category of crime, no such comparison is necessary.
We read
Subsection (b) begins with “reference to a conviction for an Indiana criminal offense also includes a conviction for any of the following.” (Emphasis added). As subsection (a)(1) defines “reference to a conviction for an Indiana criminal offense,” we read subsection (b)(1), (2) and (3) as an expansion of that definition. We agree with the dissent that subsection (b) expands subsection (a) by broadening the scope of convictions that may satisfy either a specific or general reference to a conviction for an Indiana offense.
Our dissenting colleagues read
We see this when applied to Gomez. Here, for Count III, the predicate offense statute is the handgun statute, which allows for a misdemeanor
Subsection (b)(3) is not supposed to be a qualifier that must be applied to any reference to a general or specific out-of-state prior conviction, but rather, it exists separately as another way the legislature broadened the meaning of “reference to a conviction for an Indiana criminal offense.” Respectfully, we view our dissenting colleagues’ interpretation as an inappropriate restriction on who falls under the statute. Under the dissent‘s interpretation, when applied to the unlawful carry statute, any person with a prior felony from a different state not deemed to be “substantially similar” to one in Indiana could be free to carry a firearm in Indiana without risk of felony conviction. This puts a restriction on the general type or classes of offenses.
Moreover, out-of-state prior convictions are not bound by subsection (b)(3). The dissent suggests that subsection (b)(3) encapsulates all out-of-state prior convictions. However, in subsection (a)(1), the words “criminal offense in Indiana” only follow the words “specific reference” but not “a general reference” which leads us to believe that general references are not limited to Indiana offenses only and can include out-of-state convictions. Therefore, we reject the dissent‘s view that all out-of-state convictions must fall under subsection (b)(3).
The dissent also draws attention to subsection (c)(2) of the reference statute which excludes an offense described in subsection (b)(3) when the covered reference adds a qualifier “to the offense committed in another jurisdiction.”
Our interpretation of the reference statute when applied to the handgun statute is not without support. Multiple states do not require that a person‘s prior out-of-state felony conviction be “substantially similar” before prohibiting that person from possessing a firearm. For example, under Alabama law, a person may not own or possess a firearm if they have been convicted “in this state or elsewhere of any kind of felony offense within the previous five years,” or if they have been convicted “in this state or elsewhere of three or more felony offenses of any kind at any time,” among other disqualifications.
Likewise, in Kentucky, a person is guilty of possession of a firearm by a convicted felon if they possess, manufacture, or transport a firearm after having been convicted of a felony “as defined by the laws of the jurisdiction in which he was convicted,” in any state or federal court. The statute does not require any comparison of the out-of-state felony to Kentucky law or a finding of substantial similarity.
In Arkansas, the statute prohibits firearm possession by any person who has been “convicted of a felony,” and defines “felony” as “any state or federal felony,” with certain exceptions for business-related offenses.
We also find support for our approach from the federal system. The federal prohibition against a person with a prior felony conviction from a state possessing a handgun is codified in
When we read the dissent‘s approach as applied to the predicate statute in this case, we find that it narrows the scope of the handgun statute by requiring the defendant‘s out-of-state conviction to be substantially similar to the elements of an Indiana felony. The result of this is that some defendants with out-of-state convictions would not have substantially similar convictions. This would be difficult for any person with an out-of-state conviction to be put on notice on whether they can or cannot carry a firearm in Indiana. It could also result in subjective outcomes depending on whether a trial court judge found the out-of-state felony is substantially similar to an Indiana offense or not.
While some other states do have the “substantially similar” language in their statutes, we see their purpose as broadening the scope. They ensure that if a defendant from another state has a conviction that the home state does not explicitly criminalize, their statutes allow consideration of
For all these reasons, we find the State properly enhanced this charge to a level 5 felony because Gomez has a prior felony conviction for Aggravated Unlawful Use of a Weapon/Vehicle in Illinois, entered in 2016. As he was convicted of a felony in another state within fifteen years of his Indiana offense, therefore, he may not carry a handgun in Indiana. The State lawfully charged Gomez under
B. Hancock and Firearm Statutes
We now consider the trial court‘s invitation to reconsider our Hancock precedent.
Hoosiers value their constitutional rights to bear arms. Indeed, our State Constitution recognizes the right even more explicitly than the Second Amendment: “The people shall have a right to bear arms, for the defense of themselves and the State.”
Hancock concerned the first of these three gun possession restrictions (the Serious Violent Felon law); the case before us concerns the latter two. In Hancock, the defendant was charged with possession of a firearm by a Serious Violent Felon, with the State alleging that Hancock had previously been convicted of burglary in Ohio. Burglary was one of 27 enumerated predicate felonies that could support an SVF charge at the time Hancock was decided. The SVF statute at that time specifically allowed the use of foreign predicate convictions if “the elements of the crime for which the conviction was entered [were] substantially similar to the elements” of an Indiana predicate offense.
Importantly, in Hancock, no constitutional challenge was brought alleging that “substantially similar” was unconstitutionally vague, though the trial court in the case before us today believes it is and largely relies on that conclusion to dismiss the felony gun charge. In essence, the trial court here engaged in a Hancock-like analysis of the predicate foreign felony, searching the Indiana code for “a comparing Indiana statute,” found none, App. Vol. II at 129, then declared our law unconstitutional. Id.
But the statute in question here operates differently than the old SVF statute and requires no such comparative analysis to find the predicate crime “substantially similar” to one in the Indiana Code, whether that phrase is unconstitutionally vague or not (a question we ultimately avoid, though it provides the basis for our exclusive appellate jurisdiction in this case).5 The law plainly criminalizes gun possession by felons. Any felons. Regardless of where they were convicted. Regardless of the specifics of their prior crime, other than its felony status. The State here simply and clearly alleges the defendant has a felony conviction in Illinois and that he possessed a handgun in Indiana.
Moreover, at the time Hancock was decided, the SVF statute explicitly allowed the use of foreign predicate convictions if they were “substantially similar” to specific Indiana crimes. However, that language no longer appears in the SVF statute. Yet, if we were presented with Hancock today, we would reach the same result but by application of the reference statute. Because the SVF statute references specific Indiana predicate offenses–including burglary– following our analysis above, we would compare the elements of Ohio‘s and Indiana‘s burglary statutes by operation of
Conclusion
For all the ink spilled and hours spent arguing this case, the issue and answer boils down to one word and one concept fundamental to our law: notice. Was the defendant given enough notice of what he must defend to satisfy due process? Clearly, he was. And more fundamentally, does the statute itself provide notice to felons that they cannot carry handguns in Indiana?6 Again, clearly it does, regardless of where those felony convictions were entered. If we are wrong in our interpretation of the relevant statutes, the General Assembly can amend accordingly.
The trial court‘s order dismissing Counts II and III is reversed. We remand for further proceedings.
Slaughter, J., concurs.
Molter, J., concurs in result.
Rush, C.J., concurs in result in part and dissents in part with separate opinion in which Goff, J., joins.
ATTORNEYS FOR APPELLANT
Theodore E. Rokita
Indiana Attorney General
Jesse R. Drum
Supervising Deputy Attorney General, Criminal Appeals
ATTORNEY FOR APPELLEE
Shay J. Hughes
Lafayette, Indiana
I agree with the lead opinion that Count II may proceed, but I part ways on Count III. Count II alleges Gomez committed unlawful carrying of a handgun as a Class A misdemeanor because he had been convicted of a ”federal or state offense punishable by a term of imprisonment exceeding one (1) year.”
The Class A misdemeanor‘s prior-conviction element expressly reaches convictions from Indiana and elsewhere through a broad, punishment-based rule. But the Level 5 felony‘s prior-conviction element does not. It instead uses the general phrase “a felony,” which
The lead opinion‘s contrary analysis departs from this statutory sequence in three ways. First, after recognizing that Subsection (a) of the Reference Statute treats “a felony” as a reference to a conviction for an Indiana criminal offense, the opinion declines to apply Subsection (b)(3)‘s rule for convictions from other jurisdictions. Second, it uses a definition of “felony” that is not a “statutory definition of the term,” ante, at 7, and does not comport with Subsection (b)(3), which expressly controls how to read the term when it appears in the Indiana Code. And third, it collapses the unlawful-carrying statute‘s two distinct prior-conviction formulations into one. Its notice analysis then compounds those errors by treating notice of Gomez‘s Illinois conviction as if it were notice of the Indiana felony comparator required by the Reference Statute for Count III.
For these reasons, and those that follow, I concur in the result as to Section I and respectfully dissent from Sections II and III.
The Reference Statute prescribes a three-step sequence that the lead opinion does not follow. Subsection (a) defines the statute’s triggering phrase—“reference to a conviction for an Indiana criminal offense“—to include “both” specific references and general references such as “a felony.”
Applied here, the Class A misdemeanor unlawful-carrying offense charged in Count II does not trigger the Reference Statute because that offense’s prior-conviction element uses a punishment-based rule that explicitly applies to both federal and state offenses. But the Level 5 felony charged in Count III does trigger the Reference Statute because that offense’s prior-conviction element rests on the general Indiana-offense reference to “a felony.” And under Subsection (b)(3), Gomez’s Illinois conviction can satisfy that reference only if the underlying Illinois offense is substantially similar to an Indiana felony.
A. Subsection (a) identifies the references the Reference Statute covers; Subsection (b) specifies the additional convictions those references include.
For years, many Indiana criminal statutes addressed convictions from other jurisdictions piecemeal. For example, a statute defined “violent offense,” in part, as “[a] crime under the laws of another jurisdiction” that was “substantially similar to any of” a list of Indiana offenses.
This statute-by-statute approach changed on July 1, 2020, when Public Law 142-2020 took effect. In that law, the General Assembly removed nearly all the statute-specific “substantially similar” provisions and replaced them with a new, generally applicable rule in the Reference Statute. Pub. L. No. 142-2020, § 2, 2020 Ind. Acts 1310, 1312‒13. That statute’s first two subsections perform distinct functions.
Subsection (a) defines the statute’s triggering phrase: “reference to a conviction for an Indiana criminal offense.”
Subsection (b) then specifies the additional convictions a covered reference includes. It provides that “a reference to a conviction for an Indiana criminal offense appearing within the Indiana Code also includes” convictions for attempts, conspiracies, and “[a] substantially similar offense committed in another jurisdiction.”
The lead opinion, however, divides Subsection (b) in a way the text does not permit. Though the opinion correctly acknowledges that Subsection (b) broadens the convictions that may satisfy covered references, ante, at 10, it then confines Subsection (b)(3) to “a predicate offense statute that makes a reference to a specific Indiana offense,” id. at 11. Nothing in the statutory text permits that limitation. As explained
Moreover, the grammatical inference the lead opinion uses to support this limitation misreads the sentence it parses. It reasons that “general references are not limited to Indiana offenses only and can include out-of-state convictions” because the words “criminal offense in Indiana” appear in the specific-reference clause but not in the general-reference clause. Ante, at 12. But that reading detaches the clauses from the statutorily defined phrase. Subsection (a) does not define “specific reference” and “general reference” as freestanding terms. It defines one phrase, “reference to a conviction for an Indiana criminal offense,” and says that phrase “means both” a specific reference and a general reference.
Subsection (c)(2) confirms this reading. It excludes an offense described in Subsection (b)(3) when an Indiana statute “imposes an additional qualifier on the offense committed in another jurisdiction.”
Finally, Subsection (d) confirms, rather than undermines, this reading. It provides that the Reference Statute “controls” if it conflicts with “another provision of the Indiana Code.”
In sum, contrary to the lead opinion’s erroneous interpretation, the General Assembly did not fragment the Reference Statute into one rule for specific references to convictions for Indiana offenses and another for general references. It instead created one generally applicable rule governing both specific and general references that appear in the Indiana Code. That matters here because, as I explain next, proper application of the rule shows why the Reference Statute applies to the Level 5 felony
B. Count II uses a cross-jurisdictional punishment-based prior-conviction rule; Count III uses an Indiana-offense reference that triggers Section 1-1-2-4(b)(3).
The charging information and probable cause affidavit together show that the State relies on Gomez’s 2016 Illinois conviction to satisfy the prior-conviction element in each count. Count II alleges that conviction satisfies the Class A misdemeanor’s element because Gomez had been “convicted of a federal or state offense punishable by a term of imprisonment exceeding one (1) year.”
The critical difference is the language the General Assembly chose to define each prior-conviction element. The lead opinion describes the Class A misdemeanor provision as “in essence” prohibiting “carrying with a prior felony conviction,” ante, at 2; see also id. at 16, but that’s incorrect; the General Assembly was more precise. It used the phrase “federal or state offense punishable by a term of imprisonment exceeding one (1) year,” which expressly reaches convictions from other jurisdictions based on punishment exposure. Because that language supplies its own cross-jurisdictional punishment-based rule, the Class A misdemeanor’s prior-conviction element does not contain a “reference to a conviction for an Indiana criminal offense” under the Reference Statute.
The Level 5 felony enhancement, however, is different. For that enhancement, the General Assembly used the phrase “has been convicted of a felony within fifteen (15) years before the date of the offense,” which does not refer to federal offenses, offenses from other states, or offenses punishable by a specified term of imprisonment. The element instead uses the general phrase “a felony,” which Subsection (a)(1) of the Reference
Simply put, the General Assembly’s choice of language controls. For the Class A misdemeanor, it used broad, punishment-based language. But for the Level 5 felony enhancement, it chose a prior conviction for “a felony.” Had the General Assembly intended the enhancement to reach every recent federal or state offense punishable by more than one year, it knew how to say so.
The unlawful-carrying statute’s structure reinforces the distinction. For the Class A misdemeanor’s prior-conviction element, the General Assembly excluded offenses “pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices” from crimes “punishable by a term of imprisonment exceeding one (1) year.”
In sum, the Class A misdemeanor charged in Count II expressly reaches convictions from other jurisdictions by punishment exposure, but the Level 5 felony enhancement charged in Count III uses the covered Indiana-offense reference to “a felony.” Subsection (b)(3) therefore does not apply to Count II’s prior-conviction element but does apply to Count III’s prior-conviction element. And because Count III relies on Gomez’s Illinois conviction, that element can be satisfied only if the Illinois offense is substantially similar to an Indiana felony. I explain why next.
C. Applying Subsection (b)(3) requires an offense-to-offense comparison; neither punishment exposure nor another jurisdiction’s label suffices.
Because the Reference Statute applies to the Level 5 felony charged in Count III, Subsection (b)(3) supplies the rule for determining whether Gomez’s Illinois conviction satisfies that offense’s prior-conviction
The Reference Statute’s plain text requires an offense-to-offense comparison. Subsection (b)(3) refers to “[a] substantially similar offense committed in another jurisdiction.”
Statutory definitions confirm that reading. “[T]he definitions in Article 35-31.5 apply to all statutes relating to penal offenses,”
The lead opinion’s discussion of State v. Hancock, 65 N.E.3d 585, 587–92 (Ind. 2016) confirms the point. As the opinion acknowledges, under the current serious-violent-felon statute, an Ohio burglary conviction would be compared with Indiana burglary “by operation of section 1-1-2-4(b)(3)”
This punishment-based reading is foreclosed by the text of the unlawful-carrying statute. When the General Assembly intended a conviction from another jurisdiction to qualify based on punishment exposure, it said so by using the phrase “federal or state offense punishable by a term of imprisonment exceeding one (1) year.”
The only alternative approach—a label-based reading—fares no better. Here, for example, the probable cause affidavit identifies the conviction the State relies on by name, court, and cause number: “Aggravated Unlawful Use of a Weapon/Vehicle, a Felony, in the Circuit Court of Cook County, State of Illinois, under cause number 2015CR138920.” Even assuming the relevant Illinois offense is 720 Illinois Compiled Statute 5/24-1.6 (2013), much of the firearms-related conduct covered by that statute, including carrying a handgun without a license, has not been illegal in Indiana since July 1, 2022. See Pub. L. No. 175-2022, § 12, 2022 Ind. Acts
The problem is not limited to this case. Consider two defendants in Indiana charged with unlawful carrying of a handgun. One has a six-year-old Arizona conviction for causing $10,000 in ordinary property damage, a Class 4 felony in that state.
Thus, under a label-based reading, felony liability in Indiana would turn not on Indiana’s classification of the prior criminal conduct or even on its relative seriousness, but on the happenstance of the convicting jurisdiction’s label. The defendant with the Maine kidnapping conviction would avoid felony liability for carrying a handgun in Indiana, but the defendant with the Arizona property-damage conviction would not. Such a result is untenable.
This disparity is not an anomaly; it is the predictable result of making criminal liability in Indiana depend on how another jurisdiction punishes or classifies an offense. Under the lead opinion’s approach, the State could use a defendant’s conviction from another jurisdiction to support an Indiana felony enhancement even when the underlying offense does not correspond to any Indiana felony. That result cannot be reconciled with the General Assembly’s command that crimes “shall be defined and punishment therefor fixed by statutes of this state and not otherwise.”
An offense-to-offense comparison avoids these problems. It permits a conviction from another jurisdiction to satisfy the Level 5 felony’s prior-felony-conviction element only when the underlying offense corresponds
The statutes the lead opinion cites from other jurisdictions do not “support” its contrary interpretation of Indiana law. See ante, at 13–14. If anything, they show only how other legislatures write broader rules expressly—by reaching convictions entered “elsewhere,” by tying felony status to the law of the convicting jurisdiction, or by using punishment-based language such as “a crime punishable by imprisonment for a term exceeding one year.” Id. Our General Assembly used comparable punishment-based language in the Class A misdemeanor provision but chose different language for the Level 5 felony provision. And when, as here, an Indiana statute uses the phrase “a felony,” the Reference Statute governs how convictions from other jurisdictions satisfy that reference. Other states’ choices cannot supply language our General Assembly did not enact.
The consequences of the lead opinion’s specific-reference limitation would extend beyond “a felony.” Subsection (a) of the Reference Statute covers other general references, including “a sex offense” and “a crime of domestic violence,” which appear throughout the Indiana Code and increase penalties for several offenses. See, e.g.,
Moreover, administrability concerns do not justify rewriting the Reference Statute. The lead opinion worries that a substantial-similarity inquiry may make it difficult for people with convictions from other
Finally, at a minimum, any genuine ambiguity must be resolved in Gomez’s favor. The Reference Statute determines whether a prior conviction may increase the seriousness of an Indiana offense. So even if the statute could reasonably be read either to require an offense-to-offense comparison or to permit a broader punishment-based or label-based rule, the rule of lenity requires the narrower construction. See Fix v. State, 186 N.E.3d 1134, 1139 (Ind. 2022).
In sum, proper application of the Reference Statute here is straightforward. Because Count II rests on the unlawful-carrying statute’s cross-jurisdictional punishment-based rule, Subsection (b)(3) does not apply. But because Count III rests on the unlawful-carrying statute’s Indiana-offense reference to “a felony,” Subsection (b)(3) does apply. And Gomez’s Illinois conviction can satisfy the prior-felony-conviction element only if the Illinois offense is substantially similar to an Indiana felony. The lead opinion’s contrary analysis errs by carving general references out of Subsection (b)(3), substituting its own definition of “a felony” in disregard of Subsection (b)(3), and collapsing two distinct prior-conviction formulations into one. It also leaves unclear how other general references to convictions for Indiana criminal offenses can include convictions from other jurisdictions without applying Subsection (b)(3)—an approach that creates new questions with no answers.
I now turn to the Court’s conclusions that Counts II and III are sufficiently certain and that the facts alleged in each constitute an offense.
Criminal defendants like Gomez have the right “to clear notice of the charge or charges against which the State summons [them] to defend.” Wright v. State, 658 N.E.2d 563, 565 (Ind. 1995). Thus, when the State files a charging information, it must provide notice of the offense so the defendant may prepare a defense. State v. Katz, 179 N.E.3d 431, 441 (Ind. 2022). To accomplish that purpose, the information must “be a plain, concise, and definite written statement of the essential facts constituting the offense charged,”
Consistent with these requirements, a charging information is subject to dismissal if it “does not state the offense with sufficient certainty” or if “[t]he facts stated do not constitute an offense.”
Under these principles, the trial court abused its discretion in dismissing Count II but not Count III.
Count II is sufficiently certain and states facts constituting the offense. The information alleges Gomez committed a Class A misdemeanor by knowingly or intentionally carrying a handgun while being a person convicted of a federal or state offense punishable by more than one year of
But Count III is different. The prior-felony-conviction element of the Level 5 felony is governed by the Reference Statute because the enhancement uses the covered Indiana-offense reference to “a felony.” Thus, Gomez’s Illinois conviction may satisfy the prior-felony-conviction element only if the Illinois offense is substantially similar to an Indiana felony. Yet neither the charging information nor the probable cause affidavit identifies any Indiana felony that the State contends is substantially similar to the Illinois offense.
The State need not cite the Reference Statute (though doing so would be best practice) or use talismanic language in the charging documents. But when the State relies on a conviction from another jurisdiction to satisfy a covered reference to a prior felony, the charging documents must identify, or at least make reasonably apparent, the Indiana felony comparator. Identifying the Illinois conviction gives Gomez notice of the conviction the State relies on, but not the Indiana felony comparator that makes the conviction legally sufficient to support Count III. Without that comparator, he cannot know which Indiana felony the State claims is substantially similar. And we should not require him to guess which Indiana felony the State will rely on to satisfy the prior-felony-conviction element. Cf. State v. Johnson, 270 N.E.3d 489, 496 (Ind. Ct. App. 2025) (upholding an information that allowed a defendant to infer that his conviction was substantially similar to one of several Indiana offenses involving sex crimes against children), trans. denied.
The lead opinion errs by framing the notice inquiry at too high a level of generality. See ante, at 7–8. The relevant question is not whether Gomez knew that a prior conviction could affect his ability to carry a handgun. Count II alleges that offense and may proceed. Nor is it whether Count III
That defect is fatal to Count III as pleaded. This conclusion does not address whether the State may seek leave to amend or refile a properly pleaded Count III if procedural rules permit. And the defect is not cured by the lead opinion’s observation that the General Assembly may amend the “relevant statutes” if the opinion’s interpretation is “wrong.” Id. at 18. Our role is simply to apply the enacted text, not to broaden the Level 5 felony provision to reach a charge the State did not sufficiently plead.
Ultimately, the consequences of the lead opinion’s flawed analysis could extend far beyond this case. It removes Subsection (b)(3)’s substantially-similar-offense requirement from every general prior-conviction reference in the Indiana Code and treats notice of a non-Indiana conviction as notice of the Indiana offense comparator the Reference Statute requires. The opinion’s failure to explain how other general references to convictions for Indiana offenses expand to include non-Indiana offenses could also leave the law uncertain. And that uncertainty would risk depriving defendants of constitutionally adequate notice of the criminal consequences of their prior convictions. See Tiplick v. State, 43 N.E.3d 1259, 1262 (Ind. 2015). The relevant statutory text does not compel these results; it forecloses them.
For all these reasons, the trial court abused its discretion in dismissing Count II but did not abuse its discretion in dismissing Count III. As pleaded, Count III is insufficiently certain because the charging documents do not identify, or make reasonably apparent, any Indiana felony to which the Illinois offense is allegedly substantially similar. Because Count III is insufficiently certain, there is no need to address whether the facts alleged in that count constitute an offense. And because
Goff, J., joins.