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.
Appellant: Penelope S. Strong, Attorney at Law, Billings,
Appellee: Timothy C. Fox, Montana Attorney General, Katie F.
Schulz, Assistant Attorney General, Helena, Montana
Irigoin, Dawson County Attorney, Glendive, Montana
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
§ 45-9-130(1), MCA, which requires a district court to
impose a mandatory 35%-market-value fine in drug possession
convictions, facially unconstitutional?
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
AND PROCEDURAL BACKGROUND
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.
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
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.
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 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.
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.
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.
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
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