James E. Dunn v. State of Indiana , 694 N.E.2d 723 ( 1998 )

Attorney for Appellant

David A. Smith

McIntyre & Smith

Bedford, Indiana

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Christopher L. LaFuse

Deputy Attorney General

Indianapolis, Indiana

IN THE

INDIANA SUPREME COURT

JAMES E. DUNN,

Appellant (Defendant below),

v.

STATE OF INDIANA,

Appellee (Plaintiff below).

)

) Supreme Court No.

) 47S04-9801-PC-00007

)

) Court of Appeals No.

) 47A04-9701-PC-20

)

)

APPEAL FROM THE LAWRENCE SUPERIOR COURT

The Honorable William G. Sleva, Judge

Cause No. 47E01-9208-CF-848

ON PETITION TO TRANSFER

May 6, 1998

SULLIVAN,  Justice.

In accordance with our decision today in State v. Mohler , No. 87S01-9709-PC-497 (Ind. May 6, 1998), we conclude that the new rule of law announced in Bryant v. State , 660 N.E.2d 290 (Ind. 1995), cert. denied , 117 S. Ct. 293 (1996), is not retroactive under Daniels v. State , 561 N.E.2d 487 (Ind. 1990), and so does not entitle James E. Dunn to post-conviction relief.

In August, 1992, the State charged James E. Dunn (“Dunn”) with possession of more than thirty grams of marijuana, a class D felony. ^{(footnote: 1)}  In September, 1992, the Indiana Department of Revenue issued Dunn a warrant for assessment and collection of a Controlled Substance Excise Tax (“CSET”). ^{(footnote: 2)}  Dunn pled guilty in October 1994 to the charge of possession.

In January, 1996, Dunn filed a petition for post-conviction relief based on this Court’s decision in Bryant , 660 N.E.2d 290 (holding that because CSET is punishment, the Double Jeopardy Clause bars drug prosecution after CSET has been assessed), which the post-conviction court denied.  Dunn appealed.  In a memorandum decision, the Court of Appeals reversed the post-conviction court’s denial of relief, holding that the rule announced in Bryant applied retroactively to Dunn.   Dunn v. State , No. 47A04-9701-PC-20 (Ind. Ct. App. Oct. 21, 1997).

Having granted transfer, we vacate the opinion of the Court of Appeals pursuant to Ind.Appellate Rule 11(B)(3) and affirm the post-conviction court’s denial of relief for the reasons set forth in State v. Mohler , No. 87S01-9709-PC-497 (Ind. May 6, 1998), also decided today.

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

FOOTNOTES

1:

Ind. Code § 35-48-4-11(1) (1988).

2:

Ind. Code §§ 6-7-3-1 to -17 (Supp. 1992).