PETITIONER APPEARING PRO SE: ATTORNEYS FOR RESPONDENT:
MARVIN L. SECOR STEVE CARTER
Carlisle, IN ATTORNEY GENERAL OF INDIANA
DAVID A. ARTHUR
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
MARVIN L. SECOR, )
v. ) Cause No. 49T10-9905-TA-126
INDIANA DEPARTMENT OF STATE REVENUE )
and THOMAS G. FISHER, Judge, )
RULING ON MOTION FOR RELIEF FROM JUDGMENT
NOT FOR PUBLICATION
April 18, 2002
MCMAHON, Special J.
Marvin L. Secor (Secor) has moved for relief from this Courts judgment affirming
the Department of State Revenues (Department) finding that he owes controlled substance excise
tax (CSET). Secor has requested that the Court provide counsel to represent
The request for appointment of counsel and the motion for relief from judgment
FACTS AND PROCEDURAL HISTORY
The initial history of this case is summarized in Judge Fishers June 13,
2002 opinion on Secors appeal of the CSET:
The facts appear to be undisputed. [Footnote omitted.] On September 27,
1993, Secor was criminally charged with the crime of cultivation of marijuana before
the Washington Circuit Court. Secor pled guilty to the above charge on
December 15, 1994 and was sentenced on April 19, 1995, to a term
of two years in prison. See id. at 16. One year
prior to Secors plea of guilty, on December 15, 1993, the Department issued
a Jeopardy Finding, Jeopardy Assessment and Notice Demand along with tax warrants that
were issued to the Sheriff and Clerk of Washington County, Indiana. (Respt
Answer to Amended petition at ¶1(a).) The CSET assessment was based upon
Secors possession of approximately 707 grams of marijuana and 0.4 grams of a
Schedule II controlled substance. [Footnote omitted.] The Department assessed Secor a
total of $59,592.00, which includes a statutory penalty, for possessing the controlled substances.
See id. at ¶1(b). On December 29, 1993, Secor timely filed
a protest of the CSET assessment with the Department. The Department granted
a hearing, which was conducted on February 12, 1999. On February 17,
1999, the Department issued its Letter of Findings regarding Secors CSET assessment.
The Department denied Secors protest. Unsatisfied with the Departments findings, Secor filed
an original tax appeal in this Court on May 19, 1999. On
January 24, 2000, with all parties present, this Court held a trial on
the matter. . . .
Secor v. Department of State Revenue, Slip Opinion at 2-3 (June 13, 2000)
(hereafter CSET Opinion).
ANALYSIS AND OPINION
Following Judge Fishers CSET Opinion, Secor filed a motion for rehearing which Judge
Fisher denied July 7, 2000. Secors petition for review by the Indiana
Supreme Court was denied January 11, 2001. Secors petition for writ of
certiorari from the United States Supreme Court was denied April 24, 2001.
On October 10, 2001, Secor filed the motion now at issue, titled as
Motion Pursuant to Rule 59(E) Alter or Amend a Judgment and Rule 60(b)(4)
Relief for Other Reason Void Judgment. On October 30, 2001, Secor
moved for an evidentiary hearing and for transportation from the Indiana Department of
Corrections Wabash Valley Correctional Facility. On November 6, 2001, Secor filed a
motion for the appointment of counsel in which he invoked as authority the
Sixth Amendment of the United States Constitution and the statutory right to counsel
in Indiana Code §§ 34-10-1-1 and 2. To this motion for appointment
of counsel Secor attached a sworn statement by a Wabash Valley Correctional Facility
Counselor that Secor has had an average monthly deposit of $10.00 in his
Offender Trust Account.
Motion Is for Trial Rule 60(B) Relief
Secor invokes Federal Trial Rule 59(E) for altering or amending a judgment as
one remedial basis for his motion. The Federal Trial Rules do not
apply in Indiana state courts. Consequently, Federal Trial Rule 59 is no
basis for relief from the judgment on Secors CSET appeal.
The only remedial measure available at this point for Secor is Indiana Trial
Rule 60, which he has invoked in his motion. Accordingly, the Court
considers his motion as one for relief from judgment under Indiana Trial Rule
Hearing is Not Required
Oral hearings will be conducted on motions in the discretion of the Court
. . . . Indiana Tax Court Rule 2 (D).
The mandatory provision of 60(D) as to a hearing . . . is
restricted to pertinent evidence. If therefore, there is no evidence which could be
pertinent to the allegations of the motion because such allegations,
even if true,
would not warrant the relief sought, a hearing would be a futile proceeding.
Public Serv. Commn v. Schaller, 157 Ind. App. 125, 299 N.E.2d 625 (1973).
Secor has alleged no newly discovered evidence or issues of fact.
No hearing is required for his motion.
Counsel Request Sixth Amendment
The first authority cited by Secor in support of his request for counsel,
the Sixth Amendment to the United States Constitution, does not apply to a
motion for relief from judgment following a direct appeal. Even if,
for the sake of argument only, the Court assumes that a CSET Tax
Court proceeding could be considered a criminal prosecution,
as that term is used
in the Sixth Amendment, the criminal prosecution does not include a post-appeal collateral
relief remedy such as Secors motion for relief from judgment. Pennsylvania v.
Finley, 481 U.S. 551, 556, 107 S.Ct. 1990, 1993, 95 L.Ed.2d 539,
545-46 (1987) ([w]e have never held that prisoners have a constitutional right to
counsel when mounting collateral attacks upon their convictions, [citation omitted], and we decline
to so hold today).
Counsel Request - Statutory Right
Secor also invokes the Indiana Code §§ 34-10-1-1 and 2 provision for appointment
of counsel for an indigent person. In his motion, he cited the
Court of Appeals opinion in Sholes v. Sholes, 732 N.E.2d 1252 (Ind. Ct.
Since the motion was filed, the Indiana Supreme Court has issued its own
opinion in the Sholes case, vacating the Court of Appeals opinion. Sholes
v. Sholes, 760 N.E.2d 156 (Ind. 2001).
In Sholes, the court made the following holding on Indiana Code §§ 34-10-1-1
We hold: (1) appointment of counsel under the statute is mandatory; (2)
counsel appointed under the statute must be compensated; and (3) Indiana Trial Rule
60.5 gives trial courts the power to order payment of appointed counsel, but
(4) the same considerations governing other court-mandated funding apply in determining whether mandate
is appropriate, and (5) counsel for whom mandate of compensation is not appropriate
under Trial Rule 60.5 cannot constitutionally be appointed under the statute. In sum,
in ruling on an application for appointed counsel in a civil case, the
trial court must determine whether the applicant is indigent, and whether the applicant,
even if indigent, has means to prosecute or defend the case. If those
criteria are met, and there is no funding source or volunteer counsel, the
court must determine whether the mandate of expenditure of public funds is appropriate
in that case.
Id. at 157.
This Court has first considered whether a CSET appeal and a motion for
relief from judgment in such an appeal are an action within the scope
of Indiana Code § 34-10-1-1: An indigent person who does not have
sufficient means to prosecute or defend an action may apply to the court
in which the action is intended to be brought, or is pending, for
leave to prosecute or defend as an indigent person. Ind. Code §
34-10-1-1 (emphasis added).
There does not appear to have been a decision by an Indiana appellate
court as to how the term action in the statute should be construed.
This Court concludes that action as used in the statute was intended to
be broadly read to include any proceeding which is to result in a
judgment. See State ex rel Bradshaw v. Probate Court of Marion County,
73 N.E.2d 769 (Ind. Ct. App. 1947) ([i]t has been frequently decided by
this court that an action is any judicial proceeding which, conducted to a
termination, will result in a judgment). See also Indiana Code § 34-7-4-2
([s]tatutes outside IC 34 providing causes of action or procedures include the following:
(1) IC 4-21.5-5 (Judicial review of administrative agency actions)). Cf. Indiana
Tax Court Rule 2 ([i]n the Indiana Tax Court, there shall be one
form of action in the nature of a civil action to be known
as an original tax appeal).
Thus the Court considers a CSET appeal proceeding to
be an action within the scope of the statute, and further assumes that
a motion for relief from judgment is also properly considered as an extension
of that action. Cf. Sholes, supra (applies § 34-10-1-2 to Sholes motion
for relief from judgment).
See also Koehler v. State, 499 N.E.2d 196
(Ind. 1986) (discretion of court to allow criminal defendant who elected to proceed
pro se at trial to have counsel in habitual offender proceeding).
Procedure under Indiana Code § 34-10-1-2 requires that (1) the litigant is to
apply to the trial court for leave to proceed as an indigent person;
and (2) if the trial court finds that the applicant is both indigent
and without sufficient means to prosecute or defend the action, the trial court
shall appoint counsel for the applicant. Sholes, 760 N.E.2d at 160.
Section 34-10-1-1 places the burden upon the party seeking to proceed as an
indigent person to demonstrate that he or she is indigent and without sufficient
means. However, section 34-10-1-2 does not require the applicant to make an
independent, formal request for appointed counsel. Rather, once the trial court finds
that the applicant is indigent and without sufficient means to prosecute or defend
the action, it must sua sponte appoint counsel.
Id. at 160-61.
This portion of Sholes appears to require that the Court make some affirmative
effort to determine whether Secor is indigent; it is not enough with Secors
initial request for counsel, the Court concludes, to simply say that Secor has
failed to present sufficient evidence, by affidavit or otherwise, to demonstrate indigency.
The Court does find that the affidavit of the Wabash Valley Correctional Facility
counselor, coupled with Secors conclusory statement in his request for counsel that he
is indigent and without means, do not suffice themselves to demonstrate indigency.
The insufficiency of the counselors affidavit to establish indigence would require the Court
either to hold a hearing at which Secor could be questioned about his
or, as an alternative, a questionnaire from the Court to Secor requiring
answers under oath which would permit a proper assessment of indigence. But,
because the Court concludes that the judiciarys self-imposed limitations on its mandate power
will not permit the appointment of counsel, resolution of Secors claim of indigency
is not required.
The Court assumes that Secor does not have sufficient means to prosecute the
A motion for relief from judgment is not the sort of
matter often handled, at least adequately, by persons of means without counsel.
Id. at 161.
Sholes concludes that counsel appointed under Indiana Code § 34-10-1-2 must be compensated
and, as there is no funding provided for the compensation, a court must
decide whether use of its inherent power to mandate funds is appropriate in
a case in which the § 34-10-1-2 right obtains. Trial Rule 60.5,
the mandate authority considered in Sholes applies to courts with operations funded by
the county; it hence does not apply to the Tax Court, which is
entirely funded by the state. But the considerations in Trial Rule 60.5
for deciding whether to invoke the inherent power to mandate funds apply to
all courts, including those such as the Tax Court to which Trial Rule
60.5 does not directly apply.
The basic inquiry under this mandate aspect of the Sholes holding is whether
Secor has a colorable bona fide dispute over issues warranting the expense of
counsel. Id. at 166. If Secor does, then if no pro
bono service provider is available, [this Court] would have to consider whether it
has the power, under Trial Rule 60.5 [principles], to order payment of counsel,
or whether the statutory mandate of section 34-10-1-2 fails in light of overriding
considerations that would prevent expenditure of public funds for appointed counsel. Id.
The analysis required by Sholes is new and there have been no appellate
cases yet to suggest how this Court is now to determine whether the
motion for relief from judgment raises a colorable bona fide dispute over issues
warranting the expense of counsel.
But, whatever the standard turns out to be, the Court concludes that Secors
motion itself does not meet it. It is not appropriate to appoint
counsel, and also not required that the Court attempt to find pro bono
counsel, to assist with this motion for relief from judgment which, as is
elaborated on hereafter, does no more than disagree with the original decision and
the determination on direct appeal not to disturb it, makes assertions of law
which are in plain conflict with existing Indiana decisions, and raises other arguments
which simply have no merit.
The Motion Presents No Basis for Rule 60(B) Relief
Secor seeks relief under Rule 69(B)(1)s mistake, surprise, or excusable neglect provision, but
he cannot prevail on that basis. Secor made no mistake, was not
surprised, and did not neglect any matter raised by his CSET appeal.
He may have failed to raise some matters due to his lack of
legal acumen, but that is not what Rule 60(B)(1) considers an appropriate source
of mistake, surprise, or excusable neglect, whether the litigant was pro se or
was represented by counsel who simply turned in a poor performance.
Secor also asserts that Rule 60(B)(6)s provision for relief from a void judgment.
Clearly no relief can obtain on this basis. This Courts judgment
in the appeal is not void as used in Trial Rule 60(B)(6).
There is no question that the Court had jurisdiction over both the subject
matter and Secors person.
None of the substantive bases in the motion warrant relief under the Rule.
Paragraphs 4, 5, and 7 of the Motion simply repeat the arguments
presented to Judge Fisher and in the appeal to the Indiana Supreme Court
that the procedure by which the CSET was assessed and imposed violates the
Fifth Amendment protection against Double Jeopardy, because jeopardy can attach only after an
administrative hearing or alternative procedures are compleated [sic] and convened and the factfinder
has began [sic] to take evidence. This is simply an argument that
jeopardy should not be held to attach when the jeopardy finding, jeopardy assessment
and notice demand are served. But the Indiana Supreme Court has
held in Bryant v. State, 660 N.E.2d 290 (Ind. 1995), that jeopardy
does attach at that point. Secors motion takes the position argued for
by Justice Sullivan in his dissent in Bryant, a position which a majority
of the Indiana Supreme Court did not accept.
In paragraph 6 of the motion, Secor also argues that it violates his
Double Jeopardy Clause protection for the State to have imposed both a criminal
sentence and punishment for possession of marijuana and the CSET. But, as
held in the Courts Opinion on Appeal, the CSET assessment was the first
jeopardy, and hence its assessment does not violate the Clause.
Finally, paragraph 8 of the motion argues that the Court failed to comply
with Indiana Code §§ 34-10-1-1 and 2 when it did not appoint counsel
for him during the CSET appeal process. The Court held that Secor
had failed to prove his indigence, Appeal Opinion at 2, footnote 1,
apparently for the same reasons this opinion found his affidavit from the Wabash
Valley Correctional Facility counselor does not demonstrate indigence. See supra. This
matter has been ruled upon in the CSET Opinion, with review denied by
the Indiana Supreme Court, and Secor asserts no facts outside the record which
were unavailable on this issue at the time of the appeal to the
Indiana Supreme Court. This is not a basis for relief under Rule
The Court notes that Secor did fail in his tax appeal to raise
the only arguments which Indiana decisions had not clearly foreclosed against him.
These arguments are that the CSET assessed against him violated the protections against
excessive fines in the federal Constitutions Eighth Amendment
and the Indiana Constitutions Article
I, § 16.
These excessive fines issues were before the Indiana Supreme
Court in Bryant v. State, supra, but were not addressed due to Bryants
Double Jeopardy holding. Id. at 295, n. 9.
These excessive fines claims may well have sufficed to afford a basis for
relief for Secor had they been raised in the CSET proceeding. Had
Secor been represented by counsel, it is perhaps likely that they would have
been raised, given that they were expressly mentioned in Bryant. But there
is no convincing basis this Court can find to allow Secor to raise
them at this point. They were not hidden at the time Secors
CSET appeal was filed Bryant which noted them was decided a year
before his CSET proceeding commenced. And it appears to this Court that
the only excuse for their not having been raised in the CSET proceeding
for Judge Fisher to rule on was Secors lack of representation by counsel.
And Secor asserted the statutory right to counsel he had, but Judge
Fisher held expressly that Secor had failed to establish his entitlement, and the
Indiana Supreme Court refused to review Secors assertion in his petition to that
Court that Judge Fisher had erred in not providing counsel. Under these
circumstances, this Judge concludes that there is no apparent basis on which his
waiver of the excessive fines issues can be excused.
The issues raised in the motion were expressly decided against Secor by this
Court in his CSET appeal, were raised by Secor in his petition for
review by the Indiana Supreme Court, and were not accepted by the Indiana
Supreme Court as grounds for reversing this Courts denial of his appeal.
Under caselaw, the motion is plainly subject to denial without any hearing.
The only issue this Court can discern which might have afforded a basis
for Trial Rule 60(B) relief the decision not to appoint counsel for
Secor in the CSET proceeding was fully presented in the petition for
review denied by the Indiana Supreme Court. Secor has not alleged any
newly discovered evidence on this issue, and it does not appear to this
Court that there is any evidence of that kind to justify the appointment
of counsel now.
Accordingly, the motion for relief from judgment and the request for counsel on
the motion are DENIED.
By order of the Indiana Supreme Court, Michael J. McMahon was
appointed special judge on November 13, 2001.
See Secor v. Indiana Dept
of State Revenue and Thomas G. Fisher, Judge, No. 49S00-0111-SJ-577 (Ind. Nov. 13,
2001) (order appointing special judge).
Because Secors motion for relief from judgment named Judge Fisher as
a defendant, and because Secor had made a complaint against Judge Fisher to
the Indiana Judicial Nominating Commission (the complaint was found to be without merit),
and because Secor had filed suit against Judge Fisher in the United States
District Court for the Southern District of Indiana (the suit was summarily
dismissed), Judge Fisher was obliged to recuse himself from this case on October
26, 2001. By order of the Indiana Supreme Court, Michael J. McMahon
was appointed special judge November 13, 2001 and qualified as special judge by
oath November 20, 2001 before the Chief Deputy of the Clerk of the
Indiana Supreme Court, who also, pursuant to Indiana Code § 33-3-5-10, is Clerk
of the Tax Court.
Footnote: Secor filed a Motion for Hearing and Order to Transport October
30, 2001. This motion is denied. The Court notes that the
Order to Transport would have been beyond its authority. An Indiana state
court has no jurisdiction over a prisoner after he has been convicted, sentenced
and delivered to prison pursuant to a commitment [citation omitted], and does not
have a right to order his return to court even temporarily except in
connection with matters relating to the case in which he was sentenced.
Hill v. Duckworth, 679 N.E.2d 938, 939-40 (Ind. Ct. App. 1997), following and
quoting Rogers v. Youngblood, 226 Ind. 165, 78 N.E.2d 663, 665 (1948).
Plainly, Indiana does not consider a Tax Court CSET proceeding a
See Judge Fishers conclusion, CSET Opinion, at 2, footnote 1,
that Secor had no Sixth Amendment right to counsel in the appeal, which
was borne out of a civil proceeding and not subject to the same
constitutional requirements as a criminal prosecution. See also the Indiana Supreme Court
holding that the CSET post-deprivation appeal process, which applied to Secors CSET, complies
with Fourteenth Amendment Due Process requirements, Clifft v. Indiana Department of State Revenue,
660 N.E.2d 310 (Ind. 1995).
Effective March 26, 2002, Indiana Code § 34-10-1-2 was amended
by House Enrolled Act 1027, but the Court has not considered the changes
made by the Act as applicable to Secors request for counsel. For
reference, however, the pertinent amendments made by the Act follow (new language is
SECTION 1. IC 34-10-1-2 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec.
2. (a) This section may not be construed to prohibit a court from
participating in a pro bono legal services program or other program that provides
legal services to litigants:
(1) without charge; or
(2) at a reduced fee.
the court is satisfied that a person who makes an application described in
section 1 of this chapter does not have sufficient means to prosecute or
defend the action, the court:
(1) shall admit the applicant to prosecute or
defend as an indigent person; and
(2) may, under exceptional circumstances, assign an attorney
to defend or prosecute the cause.
(c) The factors that a court may consider under subsection (b)(2) include the
(1) The likelihood of the applicant prevailing on the merits of the applicants
claim or defense.
(2) The applicants ability to investigate and present the applicants claims
or defenses without an attorney, given the type and complexity of the facts
and legal issues in the action.
(d) The court shall deny an application made
under section 1 of this chapter if the court determines any of the
(1) The applicant failed to make a diligent effort to obtain an attorney
before filing the application.
(2)The applicant is unlikely to prevail on the applicants claim
(e) All officers required to prosecute or defend the action shall
do their duty in the case without taking any fee or reward from
the indigent person.
(f) The reasonable attorneys fees and expenses of an attorney
appointed to represent an applicant under section 1 of this chapter shall be
paid from the money appropriated to the court:
(1) appointing the attorney, if the
action was not transferred to another county; or
(2) from which the action was
transferred, if the action was transferred to another county.
SECTION 2. An emergency is declared for this act.
H.E.A. 1027, §§ 1 & 2, 112th Gen. Assem., Second Reg. Sess. (Ind.
2002) (amending Ind. Code § 34-10-1-2).
The Court does not consider the Sholes ruling to be applicable
to the final judgment entered by Judge Fisher in the CSET proceeding.
It is not clear whether Sholess rules for statutory counsel requests are to
be applied to cases in which the request was made and presented in
a direct appeal which was resolved before Sholes was decided. The general
rule is that caselaw changes affecting procedural issues are not to be applied
to cases in which the appeal remedy was exhausted before the case making
the change was decided. See, e.g., Kimberlin v. DeLong, 637 N.E.2d
121 (Ind. 1994). See also Chapin v. Hulse, 599 N.E.2d 217,
220 (Ind. Ct. App. 1992) ([n]either of the above quoted provisions [T.R. 60(B)(2)
and (8)] contemplates a subsequent change in law as grounds for relief
[t]he fact that a subsequent decision in a different case recognizes a similar
legal error merely demonstrates that had the claimant appealed he would have succeeded,
assuming the allegedly identical evidence).
In any event, Judge Fishers decision not to provide counsel to Secor was
not based on the erroneous conclusion either that Secor had no right under
the statute to counsel or that the Court had no authority to provide
funds for counsel, issues which Sholes speaks to. Indeed, Judge Fishers ruling
on these points cited a Court of Appeals case holding that appointment of
counsel for an indigent was mandatory, Holmes v. Jones, 719 N.E.2d 843
(Ind. Ct. App. 1999). CSET Opinion, p. 2, n. 1.
Instead, Judge Fisher determined that Secors indigency was not sufficiently established. Id.
An in-person hearing would be problematic, as this Court would have
to travel to Mr. Secor since, as pointed out in footnote 3 above,
it has no authority to order that Secor be brought to it from
the Department of Correction.
Footnote: The Court notes that Secor has demonstrated some means to prosecute.
He has succeeded in having his Double Jeopardy arguments fully considered by
this Court and took what appears to have been a procedurally adequate appeal
of the Courts judgment to the Indiana Supreme Court. But his inability
to assess legal authorities competently, as demonstrated in his arguments, convinces this Court
that he does not have the means to prosecute.
Footnote: As a general rule, the mistake, surprise or neglect
authorizing relief may not be predicated upon
the neglect of a partys attorney because the attorneys negligence is imputed to
his client and may not be offered by the latter as a basis
for relief. [Citations omitted.] However, excepted from the rule are those
instances where the attorneys neglect is of such extreme degree as to amount
to positive misconduct, and the person seeking relief is relatively free from negligence.
W. Harvey, 4
Ind. Practice § 60.4 (2nd Ed. 1991).
A void judgment is one that, from its inception, is a
complete nullity and without legal effect . . . .
Welchel, 698 N.E.2d 1152, 1154 (Ind. 1998). A void judgment
is one rendered by a court . . . without jurisdiction of a
particular case or the parties[.] Yellow Cab Co. of Bloomington, Inc. v.
Williams, 583 N.E.2d 774, 777 (Ind. Ct. App. 1991).
Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted. U.S. Const., amend. VIII.
Almost a year before Secor filed his CSET appeal with this Court, the
United States Supreme Court addressed, for the first time, when a punitive forfeiture
is constitutionally excessive under the Eighth Amendments Excessive Fines Clause. United States
v. Bajakajian, 524 U.S. 321, 334, 118 S.Ct. 2028, 2036, 141 L.Ed.2d 314,
The Court adopted the standard of gross disproportionality articulated
in our Cruel and Unusual Punishments Clause precedents. Id., 524 U.S. at
336, 118 S.Ct. at 2038, 141 L.Ed.2d at 331.
Bajakajian has been criticized as providing little guidance for situations other than the
particular criminal forfeiture it directly addressed. M. Solomon, The Perils of Minimalism:
United States v. Bajakajian in the Wake of the Supreme Courts Double Jeopardy
Excursion, 87 Geo. L.J. 849, 877-78 (1999). There is little more than
the gross disproportionality language itself to apply in other cases
It appears to this Court to be a close question whether the amount
of the CSET imposed on Secor is grossly disproportional. Indiana Code §
6-7-3-6 imposed a CSET on Secor of $40 per gram, with an added
$40 per gram nonpayment penalty, for a total tax, plus penalty, of $80
per gram. Under the United States Sentencing Guidelines half a gram of
marijuana equals one marijuana cigarette. 18 U.S.C.S. Appendix, 2D1.1 (2002). Thus
the total CSET plus penalty on a single marijuana cigarette until 1996 was
$40. This amount is not, to this Court, clearly grossly disproportionate, but
the point is arguable.
Excessive fines shall not be imposed. Ind. Const., Article
I, Section 16.
Under the Indiana Constitutions Excessive Fines Clause, there are few decisions and none
which provide much guidance with a provision like the CSET. There is
a question whether the CSET imposed on Secor is a fine under the
Indiana Constitution. The Court notes the recent decision
Adams v. Indiana Department
of Revenue, 726 N.E.2d 728 (Ind. 2002), in which the majority
considered the importance of the use of the States power to tax as
a factor in concluding that the exclusionary rule should not apply to the
prevent the use in CSET assessments of controlled substance evidence seized by revenue
agents in violation of the Fourth Amendment. This majority position appears consistent
with the CSETs being a tax unaffected by characterization as a fine.
Compare the minoritys position, which emphasizes the punitive nature of the CSET.
If the CSET is a fine under Article I, § 16, then there
is a question as to the extent to which the Indiana excessive fines
provision will differ from the federal grossly disproportionate inquiry in Bajakajian. Bajakajians
federal excessive fines standard was adopted directly from the standard of gross disproportionality
articulated in our Cruel and Unusual Punishments Clause precedents. Bajakajian, supra, 524
U.S. at 336, 118 S.Ct. at 2038, 141 L.Ed.2d at 331 In
this respect, it has been said that Indianas Article I, § 16 cruel
and unusual punishment provision required a more extensive proportionality inquiry in an habitual
criminal offender case than the federal cruel and unusual punishment provision does.
Mills v. State, 512 N.E.2d 846 (Ind. 1987).
This suggests that the Indiana Excessive Fines Clause may require a different and
broader-reaching proportionality inquiry than the Bajakajian gross disproportionality inquiry did. The federal
inquiry in Bajakajian focused entirely on the nature of the federal crime for
which the fine was imposed. Indianas Mills decision concluded that, under Article
I, § 16s cruel and unusual punishment provision, the Article I, § 16
provision [a]ll penalties must be proportioned to the nature of the offense required
looking beyond the particular crime complained of to the penalties for other crimes.
This suggests that the Indiana inquiry may take into account not only
the proportionality of the CSET amounts in relation to the nature of Secors
underlying criminal offense, the cultivation of marijuana, but also the amount of CSET
levied on other substances for which more or less serious criminal punishments are
authorized by our statutes.
If so, then the Indiana inquiry will take into account the fact that
the CSET, as imposed on Secor at the rate authorized prior to 1996,
was the same for marijuana as for cocaine or heroin. And the
taxation of these substances, which are subject to more severe criminal penalties for
possession than the marijuana Secor was prosecuted for, at the same rate as
marijuana may be a basis for concluding the pre-1996 CSET on marijuana was
an excessive fine because it was not proportioned to the offense.