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State v. Yang

Supreme Court of Montana

November 12, 2019

STATE OF MONTANA, Plaintiff and Appellee,
v.
BER LEE YANG, Defendant and Appellant.

          Submitted on Briefs: May 15, 2019

          District Court of the Seventh Judicial District, In and For the County of Dawson, Cause No. DC-16-128 Honorable David Cybulski, Presiding Judge.

          For Appellant: Penelope S. Strong, Attorney at Law, Billings, Montana

          For Appellee: Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant Attorney General, Helena, Montana

          Brett Irigoin, Dawson County Attorney, Glendive, Montana

          OPINION

          Laurie McKinnon, Justice.

         ¶1 Ber Lee Yang (Yang) appeals from a criminal sentence imposed by the Montana Seventh Judicial District Court, Dawson County. Yang pleaded guilty to possessing 144 pounds of marijuana, and the District Court fined her $75, 600-35% of the drugs' market value-pursuant to § 45-9-130(1), MCA. Yang appeals. We address the following restated and dispositive issue:

         Is § 45-9-130(1), MCA, which requires a district court to impose a mandatory 35%-market-value fine in drug possession convictions, facially unconstitutional?

         We conclude § 45-9-130(1), MCA, is facially unconstitutional because it mandates imposition of a 35%-market-value fine and does not allow a court to consider-before imposing the fine-the nature of the crime committed, the offender's financial resources, or the nature of the burden the mandatory fine would impose on the offender. We remand this case to the District Court for recalculation of Yang's fine consistent with this Opinion.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶2 In December 2016, a Montana Highway Patrol Trooper stopped a speeding vehicle in which Yang was a passenger. Yang's ex-husband, Cher Thai Yang, was the driver of the vehicle, which was a rental car. Based on his interactions with the Yangs, the Trooper deployed a drug-sniffing dog and the dog made multiple alerts. Law enforcement eventually recovered over 144 pounds of marijuana from the vehicle's rear cargo area and backseat. Yang and her ex-husband were arrested and charged with felony drug offenses.

         ¶3 Yang was charged with one count of felony criminal possession of dangerous drugs with intent to distribute and one count of misdemeanor criminal possession of drug paraphernalia. The Information notified Yang that a person convicted of felony criminal possession of dangerous drugs could be imprisoned for not more than twenty years and fined an amount not to exceed $50, 000. The Information also cited § 45-9-130, MCA, and stated, "In addition, the Defendant will be required to pay an assessment in the amount of 35% of the market value of the drugs . . . ." The District Court appointed a public defender to represent Yang, as she qualified for public defense assistance as an indigent defendant.

         ¶4 A jury trial commenced on October 24, 2017, but Yang entered into a plea agreement on October 30, 2017. In the plea agreement, the State and Yang agreed to jointly recommend a five-year sentence with all time suspended. Regarding Yang's fines, the State and Yang agreed to "leave the assessment for 35% of the market value of the drugs seized in this matter" to the District Court's discretion. Yang also agreed to pay all court costs, including the interpreter's fees and other costs.

         ¶5 As the underlying proceedings were resolved by plea agreement and the District Court made no inquiry of Yang's ability to pay fines and costs, our understanding of the facts relevant to disposition of the restated issue come from averments in Yang's pleadings on appeal and our review of the Presentence Investigative (PSI) report. Yang represents that she is disabled and her only source of income are monthly payments of $721 in Social Security Income and $172 in food stamps. Yang has no formal education, does not speak English, and required a Hmong interpreter throughout these proceedings. Yang represented that she arrived in Sacramento and took a ride with her ex-husband back to Minnesota. Yang indicated that she did not discover the marijuana in the vehicle until she had already accepted the ride and was in the vehicle.

         ¶6 The District Court sentenced Yang a few months later. At Yang's sentencing hearing, the court noted that Yang was a non-violent, first-time offender who had a minimal risk of re-offending. The court therefore accepted the parties' suggestion and sentenced Yang to the Montana Department of Corrections for five years, with all time suspended. Regarding Yang's fines, the State represented its position that the drugs' fair market value equaled $250 per ounce, for a total of $576, 000. The District Court inquired of Yang's counsel: "I'm going to guess you estimate lower than that?" To which counsel replied, "Yes, Your Honor. . . . Although we are asking the Court to consider not imposing the fee in this case, the value per pound of marijuana at the distribution level ranges between $1, 000 to $2, 000. Same as everything; if you buy in bulk, it gets less expensive." The District Court noted it was "required" to impose the 35%-market-value fine and determined the drugs' fair market value was $216, 000-a value in between the State's and Yang's estimations. Therefore, the court ordered Yang to pay 35% of $216, 000, or $75, 600. The District Court also ordered Yang to pay various other court costs and $3, 830 for interpreter fees.

         ¶7 We take judicial notice of the Judgment and Order Suspending Sentence in State v. Cher Thai Yang, Montana Seventh Judicial District Court, Dawson County, Cause No. DC-16-126. See M. R. Evid. 202. Yang's ex-husband, the driver of the rental car, received a $4, 000 fine.

         STANDARD OF REVIEW

         ¶8 We review criminal sentences for legality. State v. Coleman, 2018 MT 290, ¶ 4, 393 Mont. 375, 431 P.3d 26. We review a claim that a sentence violates a constitutional provision de novo. State v. Tam Thanh Le, 2017 MT 82, ¶ 7, 387 Mont. 224, 392 P.3d 607.

         DISCUSSION

         ¶9 Yang appeals the District Court's sentence, arguing that the mandatory requirement that a 35%-market-value fine be imposed in every drug possession conviction-without consideration of an offender's financial resources, the nature of the crime committed, and the nature of the burden the required fine would have on the offender-violates her constitutional right against excessive fines protected by U.S. Const. amend. VIII and Mont. Const. art. II, § 22. Yang did not object to the fine before the District Court. On appeal, her constitutional challenge is both facial and as-applied.

         ¶10 We differentiate between the types of constitutional challenges that we will address for the first time on appeal. State v. Parkhill, 2018 MT 69, ¶ 16, 391 Mont. 114, 414 P.3d 1244 (citing State v. Robertson, 2015 MT 266, ¶ 12, 381 Mont. 75, 364 P.3d 580). "[A] claim that a statute authorizing a sentence is unconstitutional on its face may be raised for the first time on ...


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