May, J.
The State’s charging information alleged Wilhoite committed “Conspiracy to Commit Attempted Armed Robbery, a Class B felony,” (id. at 15) (capitalization removed), and the sentencing order purports to sentence Wilhoite for that same offense. (Id. at 163.) Wilhoite asserts there is no such crime.
The State notes Wilhoite did not, at any point in the underlying proceedings, raise his concerns about the name of the crime with which he was charged. “[F]ailure to challenge a defective charging information by way of a motion to dismiss before the trial court waives any such challenge on appeal.” Neff v. State, 915 N.E.2d 1026, 1031 (Ind. Ct. App. 2009), reh’g granted on other issue, trans. denied. Because the error Wilhoite now alleges was apparent on the face of the charging information, he waived the error because he did not object. See id.
Nevertheless, it is a due process violation for the State to convict people of crimes that do not exist. See Funk v. State, 714 N.E.2d 746, 749 (Ind. Ct. App. 1999) (discussing decisions vacating as fundamental error convictions based on non-existent crimes), trans. denied. Therefore, we will address the merits of Wilhoite’s argument to determine whether there was fundamental error. . . . .
. . . .
Nevertheless, we agree with Wilhoite that citizens should not be charged with conspiring to attempt a crime. First, colloquially speaking, to “attempt” a crime is to “try,” dictionary.com, http://dictionary.reference.com/browse/attempt?s=ts (last visited March 25, 2014), without actually completing the crime. See also Ind. Code § 35-41-5-1 (“A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime.”). A conspiracy arises not when people agree to fail to commit a crime; rather, they must have the intent to commit the crime. See Ind. Code § 35-41-5-2(a) (“A person conspires to commit a felony when, with intent to commit the felony, he agrees with another person to commit the felony.”) (emphasis added). And see People v. Iniguez, 116 Cal. Rptr. 2d 634, 636-37 (Cal. Ct. App. 2002):
The conduct defendant pleaded to, conspiracy to commit attempted murder, is a conclusive legal falsehood. This is because the crime of attempted murder requires a specific intent to actually commit the murder, while the agreement underlying the conspiracy pleaded to contemplated no more than an ineffectual act. No one can simultaneously intend to do and not do the same act, here the actual commission of a murder. Defendant has pleaded to a nonexistent offense. His commitment to state prison for such conduct must accordingly be reversed.
(footnote omitted). Thus, we agree that the State referenced a non-existent crime when it listed “Conspiracy to Commit Attempted Robbery” on the charging information as the crime committed. [Footnote omitted.] (App. at 15) (capitalization removed).
Nevertheless, Wilhoite has not demonstrated fundamental error. . . . .
. . . .
Despite the erroneous title given to his crime, the information indicated elements for conspiracy to commit armed robbery and the jury instructions informed the jurors of the elements they needed to find Wilhoite guilty of conspiracy to commit armed robbery, including “the intent to commit the crime.” (Id.) Thus, the fact that the erroneous name of the crime listed at the top of the charging information did not amount to fundamental error. See Funk 714 N.E.2d at 749 (holding no fundamental error where the “label applied to the charges may have been facially incorrect, but the substance of the . . . charges was proper”).
BAILEY, J., and BRADFORD, J., concur.