Wabash Valley Correctional Facility     ATTORNEY GENERAL OF INDIANA
Carlisle, IN     
Indianapolis, IN


    IN THE INDIANA TAX COURT _____________________________________________________________________

MARVIN L. SECOR,                                                      )
Petitioner,                                                                )
v.                                                                         )Cause No. 49T10-9905-TA-00126
DEPARTMENT OF STATE REVENUE,                                               )
Respondent.                                                                )    

June 13, 2000


The petitioner, Marvin L. Secor (Secor), challenges the Department of State Revenue’s (Department) finding that Secor owes controlled substance excise tax (CSET). Secor raises several issues for this Court’s 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.


The facts appear to be undisputed. See footnote (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 Secor’s 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. (Resp’t Answer to Amended Petition at ¶1(a).) The CSET assessment was based upon Secor’s possession of approximately 707 grams of marijuana and 0.4 grams of a Schedule II controlled substance. See footnote 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 Secor’s CSET assessment. The Department denied Secor’s protest. Unsatisfied with the Department’s 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.
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:
possessed; or
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 constitutionally infirm.
    “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)).
    Moreover, the 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 Dep’t 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). See footnote The CSET assessment was the first jeopardy, therefore the Court finds for the Department.

    Based on the foregoing, this Court AFFIRMS the Department’s finding imposing a CSET assessment on Secor.

Footnote: 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 criminal 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 petitioner’s 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 petitioner’s 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.

Footnote: Moreover Secor’s 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 Secor’s criminal conviction, which is beyond the purview of this Court.