Massa, J.
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.
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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. Ind. Code § 35-34-1-4(a)(4)–(5). We first find the trial court abused its discretion in dismissing Counts II and III because the charging information states both offenses with sufficient certainty, and the facts stated constitute offenses in Indiana. We also hold the trial court erred in declaring Indiana Code section 1-1-2-4(b)(3) unconstitutionally vague and, accordingly, dismissing Count III. As Count III does not implicate subsection (b)(3), we do not consider its constitutionality here.
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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 Indiana Code section 35-47-2-1.5, aligning with the elements therein.
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.
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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.
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 misapplication of Indiana Code section 1-1-2-4 lies at the heart of this case. Whenever the predicate offense statute makes a reference to a conviction for an Indiana criminal offense, it becomes subject to Indiana Code section 1-1-2-4, “the reference statute.” Because the handgun statute, Gomez’s predicate offense statute, refers to a prior felony conviction, it is subject to the reference statute. But before we examine the Title 1 provisions, we first summarize the essential elements of the handgun statute at issue.
Gomez was charged under Indiana Code section 35-47-2-1.5…
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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 section 1-1-2-4, entitled “Reference to a conviction for an Indiana criminal offense.” Its dense language reads, in relevant part:
(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 section 1-1-2-4(a)(1) as a section that defines “reference to a conviction for an Indiana criminal offense,” which 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.”
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 section 1-1-2-4(a)(1) in a vacuum, but we must remember that the reference statute is an interpretive statute that must be read with the predicate offense statute. It does not make sense on its own. The crime is the underlying predicate offense, and the categories listed in subsection (a)(1) apply to out-of-state convictions allowing the legislature to cast a wide net for any statute that refers to a general class or type of criminal offense. When the predicate offense statute only makes a general reference to a conviction for a class or type of criminal offense we only need to read as far as subsection (b).
We see this when applied to Gomez. Here, for Count III, the predicate offense statute is the handgun statute, which allows for a misdemeanor charge to be enhanced to a level 5 felony if the person “has been convicted of a felony within fifteen (15) years before the date of the offense.” Ind. Code § 35-47-2-1.5(e)(2)(B). As the handgun statute only refers to a general type or class of offense, i.e., a “felony,” the State need only allege that Gomez has been convicted of a prior felony within 15 years. Unlike our dissenting colleagues, we don’t think section 1-1-2-4(b)(3) is implicated as applied to Gomez. Subsection (b)(3) would be for defendants charged under a predicate offense statute that makes a reference to a specific Indiana offense. Say, for example, a defendant was charged with unlawful possession of a firearm by a domestic batterer, the charging information would refer to a specific Indiana offense, domestic battery under Indiana Code section 35-42-2-1.3, as the predicate offense. A foreign conviction for domestic battery would have to be “substantially similar” in order to suffice as a predicate under Indiana Code section 1-1-2-4(b)(3). The law requires an examination of the respective elements in those circumstances.
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.”
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If, on the other hand (as is the case here), a defendant is charged with unlawful possession of a firearm by a felon, a charge which does not make a specific reference to an Indiana crime but rather a general reference to a category of crime, a court would read subsection 1-1-2-4(b), see the phrase “reference to a conviction for an Indiana criminal offense,” then read the definition from subsection 4(a)(1) and end the analysis there because the handgun statute only refers to a felony. Had the trial court done so, it would not have strayed into constitutional scrutiny.
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).
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Indiana Code section 1-1-2-4 establishes interpretive rules for references to Indiana offenses throughout the Indiana Criminal Code, particularly addressing how conviction references should be understood following changes to Indiana’s criminal code classification system. The statute became effective July 1, 2020, and controls over conflicting provisions elsewhere in the Indiana Code. By defining “reference to a conviction for an Indiana criminal offense” to include both general and specific offenses, the legislature ensured the statute applies comprehensively across various statutory contexts whenever a criminal conviction has been referenced. We read the statute as an interpretative tool that must be read with the predicate offense statute that makes the reference itself.
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. Ala. Code 1975 § 13A-11-72. The statute does not require that the out-of-state felony be substantially similar to an Alabama felony; any felony conviction, regardless of the jurisdiction or the specific elements of the offense, is sufficient to trigger the prohibition.
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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 18 U.S.C. § 922(g)(1), which makes it unlawful for a person “who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year” to possess any firearm or ammunition in or affecting commerce. The prohibition extends across states and includes felonies from any state jurisdiction. Id.
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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 whether the home state has one that is substantially similar. When applied, that captures a wider class of defendants, rather than creating a restriction. Under the dissent’s interpretation, in order for defendants’ prior-out-of-state felony conviction to prevent them from carrying a handgun in Indiana, it must be substantially similar to an Indiana felony. We do not identify this as the legislature’s intent because section 1-1-2-4 includes an explicit supremacy clause stating that if there is a conflict between a provision in this section and another provision of the Indiana Code, section 1-1-2-4 controls. This demonstrates the legislature’s intent to establish the reference statute as the governing authority for interpreting criminal conviction references throughout Indiana law, preventing inconsistent application of conviction-related provisions across different statutory chapters and ensuring uniform treatment of individuals with criminal histories regardless of which specific statute they were charged under.
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 Indiana Code section 35-47-2-1.5(e)(2)(B).
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.” Ind. Const. Art. 1, § 32 (emphasis added). At the same time, Indiana has long enforced a public policy of keeping weapons from criminals while protecting the rights of the law abiding. Various statutes further this aim. For instance, the Serious Violent Felon law carries significant prison time for those caught with a gun after having been convicted of enumerated violent crimes. See Ind. Code. § 35-47-4-5(a) (identifying who qualifies as a “serious violent felon”). As we have seen, Indiana also makes it a misdemeanor to possess a handgun if the possessor was previously convicted of a felony at any time and, in turn, enhances that charge to a felony if the prior conviction occurred within 15 years. Ind. Code § 35-47-2-1.5. The predicate felony convictions subjecting handgun possession to criminal sanction need not have been entered by an Indiana court; convictions from other jurisdictions suffice, as well.
Hancock concerned the first of these three gun possession restrictions (the Serious Violent Felon law); the case before us concerns the latter two.
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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). 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 section 1-1-2-4(b)(3) to see if they are “substantially similar.” This is the subsection misapplied by the trial court and the dissent.
Because the trial court applied the wrong subsection of the reference statute to trigger an unnecessary constitutional analysis, we need not address its finding of constitutional infirmity nor revisit Hancock.
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? 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.
Rush, C.J., concurring in result in part and dissenting in part.
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.” Ind. Code § 35-47-2-1.5(b)(1) (emphasis added). Count III alleges he committed that offense as a Level 5 felony because he had been “convicted of a felony” within fifteen years. Id. § -1.5(e)(2)(B) (emphasis added). The distinct formulations the General Assembly used to define these prior-conviction elements resolve this case.
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 Indiana Code section 1-1-2-4 (the “Reference Statute”) treats as a reference to a conviction for an Indiana criminal offense. When, as here, the State relies on a conviction from another jurisdiction to satisfy that reference, Subsection (b)(3) of the Reference Statute requires the non-Indiana offense to be substantially similar to an Indiana felony.
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.
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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.” I.C. § 1-1-2-4(a)(1). Subsection (b) then provides that those references also include, among others, “[a] substantially similar offense committed in another jurisdiction.” Id. § -4(b)(3). And when Subsection (b)(3) applies, it requires an offense-to-offense comparison.
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.
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…[C]ontrary 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 charged in Count III but not to the Class A misdemeanor charged in Count II.
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.” I.C. § 35-47-2-1.5(b)(1). Count III, by contrast, alleges that the same conviction satisfies the Level 5 felony’s element because he had been “convicted of a felony within fifteen (15) years before the date of the offense.” Id. § -1.5(e)(2)(B).
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 Statute expressly identifies as a “reference to a conviction for an Indiana criminal offense.”
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.
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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.
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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,” I.C. § 35-34-1-2(e), set forth “the nature and elements of the offense charged in plain and concise language without unnecessary repetition,” id. § -2(a)(4), and “be of sufficient specificity,” Ind. Crim. Rule 2.1.
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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 his case can be resolved entirely on statutory grounds, the trial court’s constitutional ruling should be vacated.
Goff, J., joins.