State v. Tam Thanh Le

• Decision Date: 11 April 2017
• Docket Number: DA 16-0386
• Citation: 392 P.3d 607,387 Mont. 224
• Parties: STATE of Montana, Plaintiff and Appellee, v. TAM THANH LE, Defendant and Appellant.
• Court: Montana Supreme Court

387 Mont. 224

392 P.3d 607

STATE of Montana, Plaintiff and Appellee,

v.TAM THANH LE, Defendant and Appellant.

DA 16-0386

Supreme Court of Montana.

Submitted on Briefs: March 8, 2017

Decided: April 11, 2017

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 Olivia Rieger, Dawson County Attorney, Glendive, Montana

Justice Jim Rice delivered the Opinion of the Court.

¶1 Defendant, Tam Thanh Le (Le), appeals from the sentence imposed by the Seventh Judicial District Court, Dawson County, for his conviction of Criminal Possession of Dangerous Drugs, which included a $15,000 fine imposed pursuant to § 45-9-130, MCA. We affirm and address the following issue:

Did the District Court err by imposing an illegal sentence?

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On July 12, 2015, Highway Patrolman Barry Kilpela stopped Le's vehicle for speeding on Interstate 94 in Dawson County, Montana. During the stop, Officer Kilpela formed a suspicion that Le was involved in illegal narcotics activity and, after issuing a warning for speeding, asked Le if he would open the back hatch of the vehicle. Le consented and opened the hatch, revealing a "large blocky shaped bag." When Kilpela asked what was in the bag, Le stated, "Um, some sort of stuff." Le opened the bag and Kilpela observed several vacuum-sealed bags of what he believed to be marijuana. Officer Kilpela placed Le under arrest and seized Le's vehicle. Law enforcement executed a search warrant on the vehicle, discovering 30 vacuum-sealed bags of marijuana weighing a total of 23 pounds.

¶3 Le was charged with Criminal Distribution of Dangerous Drugs with Intent to Distribute, a felony, in violation of § 45-9-103, MCA. Le conducted plea negotiations with the State, resulting in a plea agreement. Pursuant to the agreement, the State moved to amend the charge to Criminal Possession of Dangerous Drugs, a felony, in violation of § 45-9-102, MCA. The Amended Information advised that Le could face five years of imprisonment in the state prison, be fined up to $50,000, or both, but did not mention the imposition of a fine under § 45-9-130, MCA, based upon the market value of the marijuana he possessed.

¶4 At the change of plea hearing, Le filed an Acknowledgment of Waiver of Rights, acknowledging the charged offense and possible penalty. Prior to Le entering a plea, the District Court informed Le that "[t]he maximum penalty for that charge is up to five years in prison and a $50,000 fine plus a penalty of 35 percent of the market value of the drugs." Le stated that he understood the possible maximum penalties and entered a plea of guilty to the charged offense.¹

¶5 Prior to the sentencing hearing, Le filed an objection to imposition of a fine under § 45-9-130, MCA, on the grounds, relevant to the appeal, that the fine violated the "Apprendi doctrine," based on Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and § 46-1-401, MCA, Montana's statutory counterpart to the Apprendi decision, and that it constituted an excessive penalty prohibited by the Montana and U.S. Constitutions.²

¶6 At the sentencing hearing, the District Court denied Le's sentencing objections and heard testimony regarding the value of the marijuana Le was convicted of possessing. The court imposed a six-year deferred sentence, with a $1,500 fine to be paid to the Eastern Montana Drug Task Force, and a $15,000 fine pursuant to § 45-9-130, MCA. Le appeals the imposition of the $15,000 fine.

STANDARD OF REVIEW

¶7 Criminal sentences are reviewed for legality. State v. Patterson , 2016 MT 289, ¶ 9, 385 Mont. 334, 384 P.3d 92 (citing State v. Simpson , 2014 MT 175, ¶ 8, 375 Mont. 393, 328 P.3d 1144 ). Our review for legality is generally confined to determining whether the sentencing court had statutory authority to impose the sentence, whether the sentence falls within the parameters set by the applicable sentencing statutes, and whether the court adhered to the affirmative mandates of the applicable sentencing statutes. State v. Himes , 2015 MT 91, ¶ 22, 378 Mont. 419, 345 P.3d 297 (citing State v. Breeding , 2008 MT 162, ¶ 10, 343 Mont. 323, 184 P.3d 313 ). A claim that a sentence violates the constitution is a matter of law that we review de novo . State v. Garrymore , 2006 MT 245, ¶ 9, 334 Mont. 1, 145 P.3d 946. We review a court's conclusions of law and interpretation of statutes de novo for correctness. State v. Henderson , 2015 MT 56, ¶ 9, 378 Mont. 301, 343 P.3d 566 (citing State v. Petersen , 2011 MT 22, ¶ 8, 359 Mont. 200, 247 P.3d 731 ).

DISCUSSION

¶8 Did the District Court err by imposing an illegal sentence?

¶9 Le first argues that the $15,000 fine imposed pursuant to § 45-9-130, MCA, is a sentence enhancement that violated the requirements of Apprendi and § 46-1-401, MCA, because the State did not allege the enhancement as part of the charge, and Le did not admit to the market value of the marijuana that he pled guilty to possessing.

¶10 In Apprendi , the United States Supreme Court held that "it is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed." Apprendi , 530 U.S. at 490, 120 S.Ct. at 2363 (internal quotations and citations omitted). The Court instructed that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum" must be "proved beyond a reasonable doubt" in order to satisfy the Sixth Amendment's right to jury trial. Apprendi , 530 U.S. at 490, 120 S.Ct. at 2362-63 ; see also State v. Ghostbear , 2014 MT 192, ¶ 7, 376 Mont. 500, 338 P.3d 25. Thus, a "sentence enhancement" is a fact that increases the penalty for a crime "beyond the prescribed statutory maximum." Apprendi , 530 U.S. at 490, 120 S.Ct. at 2363-64. "It is a fact not included in the statutory definition of the elements of the charged offense that allows the judge to increase the penalty provided by statute. Section 46-1-401(3), MCA." Ghostbear , ¶ 8 (emphasis added).

¶11 After the Apprendi decision, the Montana Legislature enacted legislation that codified the principles of Apprendi in statute:

(1) A court may not impose a penalty enhancement specified in Title 45, Title 46, or any other provision of law unless:

(a) the enhancing act, omission, or fact was charged in the information, complaint, or indictment, with a reference to the statute or statutes containing the enhancing act, omission, or fact and the penalty for the enhancing act, omission, or fact;

(b) if the case was tried before a jury, the jury unanimously found in a separate finding that the enhancing act, omission, or fact occurred beyond a reasonable doubt;

(c) if the case was tried to the court without a jury, the court finds beyond a reasonable doubt that the enhancing act, omission, or fact occurred; and

(d) a defendant who knowingly and voluntarily pleaded guilty to an offense also admitted to the enhancing act, omission, or fact.

...

(3) An enhancing act, omission, or fact is an act, omission, or fact , whether stated in the statute defining the charged offense or stated in another statute, that is not included in the statutory definition of the elements of the charged offense and that allows or requires a sentencing court to add to, as provided by statute, a penalty provided by statute for the charged offense or to impose the death penalty instead of a statutory incarceration period provided by statute for the charged offense. Except as provided in subsection (4), the aggravating circumstances contained in 46-18-303 are enhancing acts, omissions, or facts.

Sections 46-1-401(1), (3), MCA (emphasis added).³ Apprendi and this statute require that any fact "not included in the statutory definition of the elements of the charged offense," § 46-1-401(3), MCA, which increases the penalty "beyond the prescribed statutory maximum," Apprendi , 530 U.S. at 490, 120 S.Ct. at 2363-64, must either be found beyond a reasonable doubt by the factfinder at trial or admitted by the defendant.

¶12 The sentencing penalty provision at issue in this case, § 45-9-130, MCA, provides, in pertinent part:

(1) In addition to the punishments and fines set forth in this part, the court shall fine each person found to have possessed or stored dangerous drugs 35% of the market value of the drugs as determined by the court.

This is a mandatory penalty, providing that sentencing courts "shall fine" each defendant "found to have possessed or stored dangerous drugs" an amount equal to 35% of the market value of the drugs he possessed. Section 45-9-130(1), MCA. As such, the penalty is not subject to the discretionary authority provided to courts under the general sentencing statutes. Sections 46-18-201, et seq., MCA ; State v. Mingus , 2004 MT 24, ¶ 15, 319 Mont. 349, 84 P.3d 658 (holding discretionary sentencing statutes do not apply to mandatory fines).

¶13 Le committed the offense of criminal possession of dangerous drugs, a violation of § 45-9-102, MCA, because he was a person who "possess [ed] any dangerous drug, as defined in 50-32-101," here, marijuana. He was convicted by guilty plea, in which he admitted to possessing the marijuana.⁴ By so doing, he admitted "to have possessed or stored dangerous drugs" as required by § 45-9-130, MCA, the mandatory penalty provision. The mandatory penalty did not here require proof of any other fact "not included in the statutory definition of the elements of the charged offense," § 46-1-401(3), MCA, and, therefore, is not a sentencing enhancement for Le's crime. See Ghostbear , ¶ 14 (holding "the jury could not have returned the conviction without determining as a matter of fact" the asserted enhancement fact). By virtue of his plea, including his admission to possessing the marijuana, Le mandatorily became subject to the 35%...