Altice, J.
The State seeks rehearing and asks that we delete footnote three [below] of our opinion. In that footnote, we erroneously concluded that Ind. Code § 35-50-2-9 contains a technical error. We agree that rehearing is appropriate and therefore grant rehearing to delete the second paragraph of footnote three. In all other respects the original opinion is affirmed.
[FN 3 fom Ison v. State, No. 24A04-1607-PC-1618, __ N.E.3d __(Ind. Ct. App., March 14, 2017):
Ison claims that counsel made him feel as though he was automatically eligible for the death penalty and LWOP. According to Ison, he was not aware that Ind. Code § 35-50-2-9 sets out aggravators and mitigators to be considered by the judge or jury when determining whether to impose such sentences. Ison asserts that he was under the influence of drugs at the time of the murders and has a history of mental illness, both of which are potential mitigating circumstances.
Additionally, Ison makes a novel argument that he was not eligible for the death penalty or LWOP because the aggravators alleged by the State did not fall under I.C. § 35-50-2-9(b)(1). Indeed, the alleged aggravators were that Ison committed multiple murders and did so while he was on probation for a prior felony. I.C. § 35-50-2-9(b)(8) and (9)(C). Ison’s argument takes advantage of a clear error in the statute. In subsections (d), (e), and (g), the statute indicates that the judge or jury (whichever is applicable) must find at least one of the aggravators “described in subsection (1).” The reference should be to subsection (b), as subsection (1) is only one of the statute’s many listed aggravators. This is an obvious technical error in the statute. See Woerner v. City of Indianapolis, 177 N.E.2d 34, 37 (Ind. 1961) (“Legislative enactments are not more than any other writings to be defeated on account of mistakes, errors or omissions, provided the intention of the legislature can be collected from the whole statute.”). The General Assembly should promptly address this.]]
Riley, J. and Crone, J., concur.