Fassinger v. State
| Decision Date | 23 October 1995 |
| Docket Number | No. 64A04-9503-CR-107,64A04-9503-CR-107 |
| Citation | 656 N.E.2d 1163 |
| Parties | James A. FASSINGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Defendant-Appellant, James Fassinger ("Fassinger"), appeals from the denial of his motion to dismiss. We affirm.
The question presented to us is whether Article 1 § 14 of the Indiana Constitution and/or the 5th Amendment to the U.S. Constitution bar criminal prosecution under I.C. 35-48-4-10 when a tax liability under I.C. 6-7-3 has been assessed and partially paid.
Fassinger was charged by Information with three counts of Delivery of Marijuana, class D felonies. Before trial, Fassinger filed a motion to dismiss, contending further criminal prosecution was barred on double jeopardy grounds under Article 1 § 14 of the Indiana Constitution and the 5th Amendment of the U.S. Constitution. Fassinger claimed the Indiana Department of State Revenue ("Dept. of Revenue"), acting under the Controlled Substances Excise Tax ("CSET"), had assessed and he had partially paid, the tax imposed on the controlled substances referenced in the criminal information filed against him. The trial court denied his motion to dismiss the Delivery of Marijuana charges, and certified his question for interlocutory appeal.
The issue before us today is whether double jeopardy bars criminal conviction for possession of the controlled substance when a defendant has voluntarily agreed to pay the tax assessed against him under the CSET. We confine our analysis to the specific facts before us today. Fassinger argues that prosecution for Delivery of Marijuana violates concepts of double jeopardy because he agreed to pay the tax assessed under the CSET. It is Fassinger's position that the assessment constituted a first jeopardy for purposes of double jeopardy. Our Tax Court held that the CSET was a "punishment" for purposes of double jeopardy, and therefore CSET could not be collected unless it was imposed during the first prosecution of the person in possession. Clifft v. Indiana Dept. of State Revenue (1994), Ind.Tax, 641 N.E.2d 682, trans. granted (see also Hall v. Indiana Dept. of State Revenue (1994), Ind.Tax, 641 N.E.2d 694, trans. granted; Bailey v. Indiana Dept. of State Revenue (1994), Ind.Tax, 641 N.E.2d 695, trans. granted; Hayse v. Indiana Dept. of State Revenue (1994), Ind.Tax, 641 N.E.2d 698, trans. granted ). 1 The Indiana Tax Court arrived at this determination in comparing the CSET to a similar statute examined by the U.S. Supreme Court in Department of Rev. v. Kurth Ranch (1994), 511 U.S. 767, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767.
The threshold issue is the determination of when jeopardy first attached in Fassinger's tax case, because without a first jeopardy, there can be no second. In Kurth Ranch, the first time the U.S. Supreme Court held a tax statute was subject to double jeopardy analysis, no guidance was provided to determine when jeopardy attaches in a tax case. As our Tax Court noted in Clifft, however, the date of assessment is not controlling. In both Kurth Ranch and Clifft, the chronology of relevant official actions was: (1) arrest; (2) assessment; (3) guilty plea on the underlying possession charge with all, or virtually all, tax liability still outstanding. There has been no guilty plea or conviction on Fassinger's underlying drug charges, nor has Fassinger been criminally charged with failure to pay the CSET. The chronology of relevant official actions in Fassinger's situation is: (1) arrest; (2) assessment; (3) voluntary partial or token payment towards assessment, with most of the tax liability still outstanding. The facts presented by Fassinger were not applied in Clifft or in Kurth Ranch. Our Tax Court was careful to note, Such are the facts as presented by Fassinger today.
Fassinger argues that assessment of the tax alone triggers a jeopardy attachment. The relevant case law cannot be applied directly to Fassinger's situation because the facts differ significantly. The cases relied upon by Fassinger, with the exception of Clifft, contain facts wherein the defendants have failed to pay the CSET and they have been charged with failure to pay CSET, a class D felony. I.C. 6-7-3-11(b). In Whitt v. State (1995), Ind.App., 645 N.E.2d 677, trans. granted, and Charley v. State (1995), Ind.App., 651 N.E.2d 300, the defendants failed to pay the CSET and were prosecuted for failure to pay contemporaneously to being prosecuted for the possession offense. We held that double jeopardy was thus not violated. However, under similar facts in Collins v. State (1995), Ind.App., 645 N.E.2d 1089, 2 we held that double jeopardy was violated with the contemporaneous prosecution of failure to pay CSET and possession of cocaine. The holdings in these cases are inconsistent.
The U.S. Supreme Court held in Kurth Ranch that Montana's Dangerous Drug Tax (DDT) was "a second punishment within the contemplation of [the Fifth Amendment]...." Id. The plaintiffs in Kurth and Clifft pleaded guilty to the controlled substances crimes before any challenge to the tax assessment occurred. It was held in Kurth Ranch that Montana could collect the tax either contemporaneous with, or in lieu of, the criminal punishment. Id., 114 S.Ct. at 1945. The tax in Kurth Ranch was unconstitutional as applied to the Kurths only because it was a second punishment, and not contemporaneously imposed. Id., 114 S.Ct. at 1948. We subsequently held in Anderson v. State (1995), Ind.App., 649 N.E.2d 1060, that:
[t]he general assembly meant the CSET and underlying drug offenses to work independently. This is evidenced in several provisions of the act. First, an arrest or criminal conviction is not needed for the tax to become due. I.C. § 6-7-3-8; Clifft, supra. Second, the tax raises revenue for drug abuse prevention programs. I.C. § 6-7-3-16. Third, paying the tax does not confer immunity from criminal prosecution. I.C. § 6-7-3-7. Forth, safeguards protect the identity of the payor and ensure that information gained from payment does not lead to a criminal prosecution. I.C. § 6-7-3-8, -9.
We, therefore, conclude the legislature intended to impose the tax in addition to the punishment for the underlying drug offense. It follows, then, that the State can prosecute for failure to pay the tax without foregoing contemporaneous prosecution for the underlying offense. We construe statutes to prevent absurdity and to give effect to the legislature's probable intent. Baker v. State (1985), Ind.App., 483 N.E.2d 772, 774, trans. denied. The legislature did not intend the State to chose between enforcing the CSET or the criminal drug laws. If this were so, enforcing the CSET would reduce the sanction for some drug offenders. This is an absurd construction of legislative intent as, whatever else might be said about it, the CSET is clearly not meant to reduce the penalty for drug crimes. Thus, contemporaneous punishment for failing to pay the CSET and the underlying drug offense does not violate double jeopardy. See Clifft, supra; Kurth Ranch, supra.
Id. at 1063; see also Whitt, 645 N.E.2d 677; Charley, 651 N.E.2d 300).
The question becomes, then, whether an unchallenged assessment constitutes a punishment for the purpose of determining that the first jeopardy has attached in a double jeopardy analysis. 3 Fassinger has made payments toward the tax due and has failed to protest the imposition of the CSET. Fassinger is entitled to the full protection of due process regarding the assessment. He is entitled to either not pay the tax and suffer criminal penalty, or to seek injunctive relief from the tax imposed. Clifft, 641 N.E.2d at 691. He chose instead to voluntarily partially comply with the tax assessment. He has committed no crime with regard to the CSET. To that extent, he has not been subjected criminally as a result of the CSET. Because he has chosen to pay the tax, he can assert that defense in the event he were to be charged criminally under the CSET. See, e.g., Collins, 645 N.E.2d at 1094. The Dept. of Revenue has made no attempt to collect the assessed tax, beyond accepting Fassinger's voluntary payments toward the assessment. To that extent, there has been no first jeopardy.
In order for first jeopardy to attach, Fassinger must have suffered a punishment in the truest sense. The State, relying on Malone v. State (1913), 179 Ind. 184, 100 N.E. 567, argues that because a de novo review of the assessment is available, jeopardy has not attached. Indeed, any review by the Indiana tax court is de novo. I.C. § 6-8.1-9-1(d). While it is true that Fassinger failed to protest the assessment under Indiana Code § 6-8.1-5, he is not without the opportunity to seek de novo review in the Tax Court. His choice not to protest the assessment does not render the fact that an assessment has been issued a "jeopardy" for double jeopardy purposes. Rather, not until the challenge to the validity of the assessment has been rejected does the first jeopardy attach. Fassinger has suffered no punishment as a result of the assessment until he loses the opportunity to be refunded or the opportunity to escape liability via a tax protest.
In other words, "collection" for purposes of jeopardy attachment has not commenced until its challenge has been denied. Voluntary compliance with the CSET does not trigger jeopardy. Such a rule would lead to the absurd result that a criminal defen...
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