PETITIONER APPEARS PRO SE: ATTORNEYS FOR RESPONDENT:
MARVIN L. SECOR JEFFREY A. MODISETT
Wabash Valley Correctional Facility ATTORNEY GENERAL OF INDIANA
DAVID A. ARTHUR
DEPUTY ATTORNEY GENERAL
INDIANA TAX COURT
MARVIN L. SECOR, )
v. )Cause No. 49T10-9905-TA-00126
DEPARTMENT OF STATE REVENUE, )
ON APPEAL FROM A FINAL DETERMINATION OF
THE DEPARTMENT OF STATE REVENUE
June 13, 2000
NOT FOR PUBLICATION
The petitioner, Marvin L. Secor (Secor), challenges the Department of State Revenues (Department)
finding that Secor owes controlled substance excise tax (CSET). Secor raises several
issues for this Courts review, all of which relate to double jeopardy.
As a result, the Court restates and consolidates the issues into one:
Whether the Double Jeopardy Clause bars the collection of the CSET penalty imposed
by the Department.
FACTS and PROCEDURAL HISTORY
The facts appear to be undisputed.
(Trial Tr. at 6.) 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.
The Department assessed Secor
a total of $56,592.00, 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. Additional facts will be supplied where necessary.
ANALYSIS and OPINION
Standard of Review
This court reviews final determinations of the Department de novo and
is bound neither by the evidence nor the issues raised at the administrative
level. See Ind. Code Ann. § 6-8.1-5-1(h) (West 2000); Tri-States Double Cola
Bottling Co. v. Department of State Revenue, 706 N.E.2d 282, 283 (Ind. Tax
Ct. 1999). See also Hurst v. Department of State Revenue, 721 N.E.2d
370, 372 (Ind. Tax Ct. 1999);
Secor argues that collection of the CSET assessment by the Department would constitute
a Double Jeopardy, which is prohibited by both the United States and Indiana
Constitutions. The Department argues that because of the timing of the jeopardy
assessment, the Double Jeopardy Clause does not apply and its Letter of Finding
should be affirmed. Ind. Code Ann. § 6-7-3-5 (West 2000) is the
controlling statute with respect to the CSET. According to the statute, a
CSET is imposed on controlled substances that are:
in Indiana in violation of IC 35-48-4 or 21 U.S.C. 841 through 21
U.S.C. 852. The tax does not apply to a controlled substance that
is distributed, manufactured, or dispensed by a person registered under IC 35-48-3.
Under these facts, Secor was charged with possession of a controlled substance.
Secor does not dispute the accuracy or the circumstances under which the CSET
was assessed. Rather, Secor believes that collection under the CSET statute is
The Double Jeopardy Clause provides that no person shall be subject for the
same offense to be twice put in jeopardy of life or limb. Bryant
v. State, 660 N.E.2d 290, 295 (Ind. 1995) (quoting U.S. Const. Amend. V.),
cert. denied, 519 U.S. 926, 117 S. Ct. 293, 136 L. Ed. 2d
213 (1996). The Double Jeopardy Clause is applicable to Indiana through the
Fourteenth Amendment. See id. (citing Benton v. Maryland, 395 U.S. 784, 89
S. Ct. 2056, 23 L. Ed. 2d 707 (1969)). The purpose of
the Double Jeopardy Clause is to protect citizens from suffering a second prosecution
for the same offense after acquittal, a second prosecution for the same offense
after conviction and multiple punishments for the same offense. See id. (citing
North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct 2072, L. Ed.
2d 656 (1969)).
Bryant court, besides defining the Double Jeopardy Clause, discussed in great
detail whether imposition of the CSET is a jeopardy. See Bryant, 660
N.E.2d at 295-97. Without rehashing the relevant analysis, the Indiana Supreme Court
in the Bryant case determined that civil fines and financial exactions can be
jeopardies. See id. (citing Montana Dept of Revenue v. Kurth Ranch, 511
U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994)). Finding that
the CSET is in fact a jeopardy, the Court concluded that jeopardy attaches
when the risk of a determination of guilt exists and, as in this
case, the Department serves a taxpayer with a Record of Jeopardy Findings and
Jeopardy Assessment Notice and Demand, which it did in this case on December
15, 1993. See id. at 299. Bryant also held that the
first attachment of jeopardy is the one that controls. See id.
Secor was served with a Record of Jeopardy Assessment and Notice and
Demand (the first jeopardy) one year prior to his admission of guilt
in criminal court (the second jeopardy).
The CSET assessment was the
first jeopardy, therefore the Court finds for the Department.
Based on the foregoing, this Court AFFIRMS the Departments finding imposing a CSET
assessment on Secor.
At the beginning of the trial, petitioner, via oral motion, requested that
the Court appoint an attorney as a result of the petitioner claiming indigency.
(Trial Tr. at 4-6.) The Sixth Amendment of the United
States Constitution (applicable to Indiana through the Fourteenth Amendment) allows indigent
defendants the right to assistance by legal counsel. However, because this case
is borne out of a civil proceeding, it is not subject to the
same constitutional requirements. Thus, the threshold determination of indigency is discretionary.
Pursuant to review of Ind. Code Ann. §§ 34-10-1-1 & 34-10-1-2 (West 1999)
and the facts provided in the record, the petitioners indigency has not been
sufficiently established. See Holmes v. Jones, 719 N.E.2d 843, 846 (Ind. Ct.
App. 1999). As such, the Court DENIES petitioners motion to appoint counsel.
Throughout the pleadings the facts are either incoherently stated or incompletely stated.
However, at oral argument, both parties never contested the facts leading to
the arrest and subsequent assessment of the CSET. As a result, the
Court will state the facts as they appear in the pleadings.
Footnote: Although the record does not identify the controlled substance,
Ind. Code Ann.
§ 35-48-2-6 (West 1998 & Supp. 1999) lists the controlled substances that are
classified under Schedule II.
Moreover Secors argument is restrained by the fact that the application of
Bryant is not retroactive. See Elvers v. State, 697 N.E.2d 942 (Ind.
1998) (reversing the Court of Appeals on double jeopardy grounds and holding that
the rule announce in Bryant is not retroactive). This would relate to
Secors criminal conviction, which is beyond the purview of this Court.