Opinion
No. 47S04-9801-PC-00007.
May 6, 1998.
Indiana 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.
David A. Smith, McIntyre Smith, Bedford, for Appellant.
Jeffrey A. Modisett, Attorney General, Christopher L. LaFuse, Deputy Attorney General, Indianapolis, for Appellee.
ON PETITION TO TRANSFER
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, ___ U.S. ___, 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. In September, 1992, the Indiana Department of Revenue issued Dunn a warrant for assessment and collection of a Controlled Substance Excise Tax ("CSET"). Dunn pled guilty in October 1994 to the charge of possession.
Ind. Code § 35-48-4-11(1) (1988).
Ind. Code §§ 6-7-3-1 to -17 (Supp. 1992).
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.