v.

GUY A. MOHLER,
    Appellee (Defendant below).

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)    Supreme Court No.
)    87S01-9709-PC-497
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)    Court of Appeals No.
)    87A01-9605-PC-163
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been assessed. However, this new rule is not retroactive under Daniels v. State, 561 N.E.2d 487 (Ind. 1990), and so does not entitle Guy A. Mohler to post-conviction relief.

    Mohler did not appeal his convictions or sentence. In January, 1996, Mohler filed a petition for post-conviction relief based on this Court's holding in Bryant v. State, 660 N.E.2d 290 (because CSET is punishment, the Double Jeopardy Clause bars drug

prosecution after tax has been assessed), which the trial court granted. The Court of Appeals affirmed the trial court's grant of post-conviction relief, and held that the rule announced in Bryant applied retroactively to Mohler and that the post-conviction court properly vacated Mohler's convictions for possessing and dealing in marijuana. State v. Mohler, 679 N.E.2d 170, 173 (Ind. Ct. App. 1997).

    Upon the State's petition, this Court granted transfer on September 12, 1997. Ind.Appellate Rule 11(B)(3).

either an acquittal or a conviction, and against multiple punishments for the same offense. U.S. Const. amend. V; Ind. Const. art. I, § 14; Bryant, 660 N.E.2d at 295 (citing North Carolina v. Pearce, 395 U.S. 711 (1969)).

    The CSET is imposed upon the delivery, possession, or manufacture of a controlled substance. Ind. Code § 6-7-3-5 (Supp. 1992). Although the CSET is denominated a civil penalty, we held that it was a punishment that creates a risk of determination of guilt upon which jeopardy attaches. Bryant, 660 N.E.2d at 297, 299 (deterrent purpose, high rate, and punitive nature make CSET more akin to criminal punishment). Therefore, we concluded that assessing a defendant with a CSET and subsequently prosecuting him or her with the underlying crime (relating to delivery, possession or manufacture or a controlled substance) violated double jeopardy. Id. at 300.

announced.

is made available. Daniels, 561 N.E.2d at 489.

    In Teague, a plurality of the Supreme Court held that new rules of law do not apply retroactively to cases on collateral review unless they fall within one of two very narrow exceptions. 489 U.S. 288. The first exception permits retroactive application of new rules that place "'certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Teague, 489 U.S. at 307 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971) (Harlan, J., concurring in judgments in part and dissenting in part)). The Supreme Court has extended this exception to include "substantive

categorical guarantees accorded by the Constitution," such as a rule prohibiting a particular punishment for a class of defendants due to their status or offense. Penry, 492 U.S. at 329- 30.

    The second exception provides for retroactive application of new rules that "require[] the observance of those procedures that . . . are implicit in the concept of ordered liberty." Teague, 489 U.S. at 307 (citations and internal quotation marks omitted). The Supreme Court limited this exception to "watershed rules of criminal procedure" that implicate the fundamental fairness of criminal proceedings and are "central to an accurate determination of innocence or guilt." Id. at 311, 313.

    The principle Daniels extracted from Teague, therefore, is that new rules of criminal procedure do not apply retroactively to cases that became final before the new rule was announced, unless the new rule (a)(1) places certain "primary, private individual conduct beyond the power of the criminal law-making authority to proscribe;" or (a)(2) prohibits a particular punishment for a class of defendants based on their status or offense; or (b) is a "watershed rule[] of criminal procedure . . . central to an accurate determination of innocence or guilt." Penry, 492 U.S. at 330; Teague, 489 U.S. at 307, 311, 313. Accordingly, to ascertain whether Mohler may benefit from the rule announced in Bryant, we must apply the three prong test derived from Teague. First, we must determine when Mohler's convictions and sentence became final. Caspari, 510 U.S. at 390. Next, we must determine whether

Bryant announced a new rule of criminal procedure or whether its result was dictated by precedent existing at the time Mohler's convictions and sentence became final. Id. Finally, if we determine that Bryant announced a new rule of criminal procedure, we must decide if the new rule falls within one of the two narrow exceptions to the general rule of nonretroactivity. Id.

    Bryant announced a new rule of criminal procedure: Its result was not dictated by existing precedent and was subject to debate at the time Mohler's convictions and sentence became final. In deciding Bryant, this Court relied heavily on the Supreme Court's decision in Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. 767 (1994). However, Kurth Ranch did not compel the result in Bryant because "[t]he CSET is not identical to the Kurth tax in every respect, [and] the factors outlined in Kurth do not create a bright line." Bryant, 660

N.E.2d at 297. Likewise, the result reached in Bryant was subject to debate at that time, as illustrated by the fact that some other states with controlled substance excise taxes did not find mere assessment of the tax to constitute jeopardy. See, e.g., Desimone v. State, 904 P.2d 1 (Nev. 1995) (dismissing criminal charges because controlled substance tax, although a punishment, had not been reduced to judgment or paid), cert. granted by 116 S.Ct. 2576 (vacating judgment in light of United States v. Ursery, 518 U.S. 267 (1996));See footnote 5 People v. Litchfield, 902 P.2d 921 (Colo. Ct. App. 1995) (assessment of controlled substance tax is not jeopardy without final administrative determination of obligation to pay), aff'd on other grounds and remanded by 918 P.2d 1099 (Colo. 1996).

    Because Bryant announced a new rule of criminal procedure after Mohler's convictions and sentence became final, its holding cannot be applied retroactively to Mohler's convictions unless it falls within an exception to the general rule of nonretroactivity.

    Daniels recognized the two exceptions noted in Teague to the general rule of nonretroactivity: (1) rules which place certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe; and (2) rules which require the observance of procedures that are implicit in the concept of ordered liberty and without which the likelihood of an accurate conviction is seriously diminished. Daniels, 561 N.E.2d at 490 (citing Teague, 489 U.S. at 307, 313). Mohler does not contend that the Bryant rule falls under either of these exceptions and we hold that it does not.See footnote 6

    Daniels also recognized that Penry expanded the first Teague exception set forth in subsection D-1 supra to permit retroactive application for new rules "'prohibiting a certain

category of punishment for a class of defendants because of their status or offense.'" Daniels, 561 N.E.2d at 490 (quoting Penry, 492 U.S. at 330). The Court of Appeals found that the Bryant rule was such a rule and so entitled to retroactive effect. We hold that the new rule announced in Bryant is not entitled to retroactive application under Daniels. To explain why, we look in some detail, first, at the Penry exception to the nonretroactivity rule and, second, at the analysis underlying the Court of Appeals's conclusion.

    As noted several times supra, Teague held that a new rule will apply retroactively if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe." Teague, 489 U.S. at 307. Notwithstanding that Teague focused solely on new rules according constitutional protection to an actor's primary conduct, Teague drew heavily from Justice Harlan's separate opinion in Mackey v. United States, 401 U.S. 667, 675 (Harlan, J., concurring in judgments in part and dissenting in part). In Mackey, Justice Harlan spoke more generally of what the Penry court called "substantive categorical guarantees accorded by the Constitution, regardless of the procedures followed." Penry, 492 U.S. at 329. After Mackey had been decided, the Supreme Court prohibited imposing the death penalty on insane defendants, Ford v. Wainwright, 477 U.S. 399, 410 (1986), and for the crime of rape, Coker v. Georgia, 433 U.S. 584, 592 (1977) (plurality opinion). In Penry, the Court characterized Ford and Coker as holding that the Eighth Amendment, as a substantive matter, prohibited imposing the death penalty on a certain class of defendants because of their status (Ford _ insanity) or because of the nature of their

offense (Coker _ rape). It concluded, "In our view, a new rule placing certain classes of individuals beyond the State's power to punish by death is analogous to a new rule placing certain conduct beyond the State's power to punish at all." Penry, 492 U.S. at 330. For this reason, the Court held that the first Teague exception also covered "rules prohibiting a certain category of punishment for a class of defendants because of their status or offense."See footnote 7 Id. We reaffirm our holding in Daniels that this exception also applies to the Indiana nonretroactivity rule. Daniels, 561 N.E.2d at 490.

    As noted, the Court of Appeals concluded that the Bryant rule (holding that the Double Jeopardy Clause bars drug prosecution if a CSET with respect to the same drug has been assessed previously) applied retroactively under the Penry exception. As authority, the Court of Appeals looked to two federal decisions that also involved the Double Jeopardy Clause.See footnote 8 These decisions held that a new double jeopardy rule announced by the Supreme Court in Grady v. Corbin, 495 U.S. 508 (1990), overruled by United States v. Dixon, 509

U.S. 688 (1993), was entitled to retroactive application under Penry.

    Although these decisions concerned the specific rule enunciated in Grady v. Corbin, we think it is fair to say that they conclude (and that the Court of Appeals concluded in this case as well) that all new rules holding that the Double Jeopardy Clause bars a prosecution are entitled to retroactive effect.See footnote 9 These courts suggest two interrelated reasons for this. First, they observe that the purpose of the Double Jeopardy Clause is to "prevent an unconstitutional trial from taking place at all." Mohler, 679 N.E.2d at 173; Johnson, 963 F.2d at 345 (citing Robinson v. Neil, 409 U.S. 505, 509 (1973)); McIntyre, 938 F.2d at 904 (also citing Robinson). Because a rule concerning double jeopardy bars a prosecution, they continue, it is similar to the rule considered in Penry which barred a punishment. Mohler, 679 N.E.2d at 173; Johnson, 963 F.2d at 345; McIntyre, 938 F.2d at 904. Because of this similarity, they conclude, the double jeopardy rule should be accorded the same retroactive effect. Mohler, 679 N.E.2d at 173; Johnson, 963 F.2d at 345; McIntyre, 938 F.2d at 904.

    Second, they observe that the prohibition on double jeopardy is a "substantive categorical guarantee accorded by the Constitution." Mohler, 679 N.E.2d at 173 (citing McIntyre, 938 F.2d at 904, and Johnson, 963 F.2d at 345). As noted supra, Penry spoke

approvingly of Justice Harlan's reference in Mackey to such guarantees. We infer that the Johnson, McIntyre, and Mohler courts view rules enforcing such guarantees as entitled to retroactive effect.

    We do not find either of these reasons, either alone or together, as supporting the retroactive application of rules applying double jeopardy in general or the Bryant rule in particular. As to the first, Penry does not purport to give retroactive effect to all rules barring punishment but instead to rules barring a specific type of punishment for a specific class of defendants (defined by their status or offense). The double jeopardy rule may be analogous to the rule considered in Penry in the sense that both bar a certain type of government action (double jeopardy rule _ prosecution; Penry _ capital punishment). But we find the analogy is incomplete because the double jeopardy rule does not address itself to a specific class of defendants (defined by their status or offense) and, perhaps, inapt because it does not address itself to a specific punishment.See footnote 10

    Similarly, we reject the implication that any new rule enforcing a "categorical

guarantee accorded by the Constitution" is entitled to retroactive effect under Penry.See footnote 11 To fall under Penry, such guarantees must be coupled with a specific type of punishment for a specific class of defendants (defined by their status or offense).

    The Second Circuit sees this issue the same way we do:

    It seems to us that Penry effects a rather carefully limited expansion of the first "primary conduct" exception, and that McIntyre inappropriately puts Grady into the Penry category. The rule established in Grady does not immunize primary conduct from overall, or any specific, criminal punishment. Manifestly, the offenses for which [the defendants in this case] were convicted remain illegal after Grady. Grady would establish, at most, that their admittedly criminal conduct cannot be prosecuted in separate trials. This, we believe, is a procedural matter properly tested under the second, rather than first, exception to the prohibition against retroactive application of new rules.

United States v. Salerno, 964 F.2d 172, 178 (2d Cir. 1992).

    Turning to Mohler's specific claim, the Court of Appeals said that the Bryant rule falls under Penry and is entitled to retroactive effect because (1) the rule is equivalent to the rule considered in Penry; (2) the rule is a "substantive categorical guarantee accorded by the Constitution;" and (3) the rule "prohibits the prosecution of a specific class of defendants

because of their status or offense, here, those persons who have previously been assessed a CSET for the same drug." Mohler, 679 N.E.2d at 173. On the grounds set forth supra, we reject reasons (1) and (2). To paraphrase the Second Circuit, the rule established in Bryant does not immunize primary conduct from overall, or any specific, criminal punishment. The offense for which Mohler was convicted remained illegal after Bryant. Bryant establishes, at most, that the State cannot prosecute Mohler's admittedly criminal conduct if it previously has assessed a CSET with respect thereto. Cf. Salerno, 964 F.2d at 178.

    As to reason (3) given by the Court of Appeals, we conclude that that court has not defined a specific class of defendants by their status or offense as Penry requires (for example, insanity or mental retardation) but rather by the punishment they received (i.e., "those persons who have previously been assessed as CSET for the same drug"). But if the specific class of defendants under Penry is defined as all those receiving the newly- proscribed punishment, then all those receiving the newly-proscribed punishment are entitled to the benefit of the new rule. This circular approach allows the exception to swallow the general rule, resulting in retroactive application of almost every new rule. Both finality and efficient administration of justice _ the rationale for nonretroactivity _ would be undermined if not destroyed.

    While we continue to recognize the exception adopted in Penry as an exception to our Daniels nonretroactivity rule, we hold that neither new rules enforcing the Double Jeopardy

Clause without more, nor the new rule enunciated in Bryant at issue here, fall within the Penry exception. Accordingly, Mohler is not entitled to the retroactive benefit of the Bryant rule.

SHEPARD, C.J., and DICKSON, SELBY, and BOEHM, JJ., concur.

    Nor does the second exception _ "watershed rules of criminal procedure . . . central to an accurate determination of innocence or guilt" _ permit retroactive application of the rule in Bryant. While most assuredly an important constitutional right, double jeopardy protection is not central to an accurate determination of innocence or guilt. United States v. Salerno, 964 F.2d 172, 179 (2d Cir. 1992).

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