State v. Duong

March 3 2015
DA 13-0751
Case Number: DA 13-0751
IN THE SUPREME COURT OF THE STATE OF MONTANA
2015 MT 70
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MICHAEL DUONG,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventh Judicial District,
In and For the County of Dawson, Cause No. DC 12-084
Honorable Richard A. Simonton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Wade Zolynski, Chief Appellate Defender, Koan Mercer, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Katie F. Schulz, Assistant
Attorney General, Helena, Montana
Olivia Norlin-Rieger, Dawson County Attorney, Marvin L. Howe, Deputy
County Attorney, Glendive, Montana
Submitted on Briefs: January 28, 2015
Decided: March 3, 2015
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.
¶1 Michael Duong (Duong) pled no contest to the charge of possession of dangerous
drugs with intent to distribute and reserved his right to appeal. He appeals from an order
of the Seventh Judicial District, Dawson County, denying his motion to suppress and
from the final judgment ordering Duong to pay the cost of his interpreter and imposing a
ten-percent administration fee. We affirm in part, reverse in part and remand.
¶2 Michael Duong presents the following issues for review:
¶3 Issue One: Whether the District Court correctly determined that Trooper Muri had
particularized suspicion to stop Duong’s vehicle.
¶4 Issue Two: Whether the District Court erred by ordering Duong to pay the costs
of his interpreter.
¶5 Issue Three: Whether the District Court erred when it imposed a ten-percent
administration fee on Duong.
PROCEDURAL AND FACTUAL BACKGROUND
¶6 On October 16, 2012, Highway Patrol Trooper Troy Muri was patrolling on
Interstate 94 near Glendive, Montana. Drug Enforcement Agent Richard Smith was also
present in the vehicle, as Trooper Muri was familiarizing Agent Smith with the area. The
patrol car was stationary alongside the interstate when Duong’s vehicle drove past around
9:30 p.m. Trooper Muri pulled onto the road and initially traveled at a high speed before
reaching Duong’s vehicle and slowing down. Trooper Muri followed the vehicle for
nearly two miles and observed Duong’s vehicle drive to the right, cross the fog line, and
drive onto the rumble strip. Trooper Muri then drove into the passing lane and remained
there for approximately twenty seconds before returning to the right-hand lane. While
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the patrol car was in the passing lane, Duong again crossed the fog line and drove onto
the rumble strip. After observing Duong’s driving, Trooper Muri activated his
emergency lights and stopped Duong.
¶7 Trooper Muri issued a warning citation to Duong. After discussing his travel
plans and other recent stops by law enforcement, Trooper Muri asked Duong if he had
anything illegal in the vehicle and Duong replied that Muri could “check it out.” Duong
then consented to a search of a cardboard box in the vehicle and Muri found fourteen
pounds of marijuana inside. Duong was arrested and charged with possession of
dangerous drugs with intent to distribute.
¶8 Duong was born in Vietnam, but has lived in the United States since 1985. He
speaks English as a second language and requested the assistance of an interpreter during
his criminal case. In January 2013, Duong moved to suppress the evidence obtained
during the search, arguing that Trooper Muri did not have sufficient particularized
suspicion to stop the vehicle, as well as other issues not raised in this appeal. On April 18
and 19, 2013, the District Court held an evidentiary hearing and heard from numerous
witnesses including Trooper Muri. A patrol car video recording of Duong’s activities
prior to the stop was also submitted as evidence. Trooper Muri testified that Duong’s car
was weaving, that he crossed the fog line, and also drove onto the rumble strip. Based on
these observations, Trooper Muri believed the driver might be falling asleep,
experiencing a medical condition, preoccupied, distracted, or possibly impaired. He also
described the recent increase in intoxicated drivers and fatal crashes in the area.
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¶9 The District Court denied the motion to suppress and Duong pled no contest to the
charges. Judge Simonton sentenced Duong to a six-year deferred sentence and ordered
him to pay a number of fees including $800 for his public defender, $325 for his
interpreter, and a ten-percent administration fee for fee collection costs.
STANDARD OF REVIEW
¶10 We review the denial of a motion to suppress to determine whether the district
court’s findings were clearly erroneous and whether the court correctly applied the
findings as a matter of law. State v. Flynn, 2011 MT 48, ¶ 6, 359 Mont. 376, 251 P.3d
143 (citations omitted). “Findings of fact are clearly erroneous if they are not supported
by substantial credible evidence, if they are based upon misapprehension of the evidence
or if review of the record convinces the Court that a mistake has been made.” Flynn, ¶ 6
(citations omitted).
¶11 Generally, this Court reviews a criminal sentence for legality; that is, whether the
sentence falls within the statutory parameters. State v. Webb, 2005 MT 5, ¶ 8, 325 Mont.
317, 106 P.3d 521 (citations omitted). “A trial court’s statutory interpretation is a
question of law, which we review to determine whether it is correct.” Webb, ¶ 8
(citations omitted).
DISCUSSION
¶12 Issue One: Whether the District Court correctly determined that Trooper Muri
had particularized suspicion to stop Duong’s vehicle.
¶13 The Fourth Amendment of the United States Constitution and Article II, Section
11 of the Montana Constitution protect against unreasonable searches and seizures.
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Flynn, ¶ 7. Under Montana law, an officer “may stop any person or vehicle that is
observed in circumstances that create a particularized suspicion that the person or
occupant of the vehicle has committed, is committing, or is about to commit an offense.”
Section 46-5-401(1), MCA; State v. Larson, 2010 MT 236, ¶ 19, 358 Mont. 156, 243
P.3d 1130. To establish particularized suspicion, the State must show that the officer had
“objective data from which an officer can make certain inferences, and a resulting
particularized suspicion that the occupant of the motor vehicle is or has been engaged in
wrongdoing or was a witness to criminal activity.” Flynn, ¶ 7 (citations omitted). The
focus of the inquiry is not whether the driving itself was illegal but rather, “whether the
officer could point to specific and articulable facts which, taken together with rational
inferences from those facts, reasonably warrant the intrusion.” Weer v. State, 2010 MT
232, ¶ 10, 358 Mont. 130, 244 P.3d 311 (citations omitted). Whether the officer had
particularized suspicion is evaluated using the totality of the circumstances available at
the time. Larson, ¶ 19 (citations omitted).
¶14 In Flynn, this Court rejected the notion that the particularized suspicion analysis
can rely on a defendant’s after-the-fact explanation of the event. Rather, the focus is
entirely on what facts were available to the officer. Flynn, ¶ 12. Specifically, the Court
rejected the flawed analysis used in State v. Lafferty, 1998 MT 247, 291 Mont. 157, 967
P.2d 363, where the court improperly relied on the defendant’s after-the-fact explanation
that she “crossed the fog line as she observed [the officer’s] patrol car come up behind
her.” Flynn, ¶ 10 (quoting Lafferty, ¶ 17). Instead, we stated that “[a]n officer in the
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field need not consider every possible innocent explanation or legal exception before
concluding that particularized suspicion exists.” Flynn, ¶ 11.
¶15 Duong argues that the State has not provided sufficient, objective data to support
the traffic stop. Duong further maintains that the reasonable inference should have been
that he was alert and concerned when he crossed the fog line in response to the trooper’s
driving and fast approach from the rear.
¶16 After listening to witnesses and reviewing the video, the District Court concluded
that Trooper Muri had particularized suspicion to stop Duong’s car. The District Court
specifically found that Trooper Muri observed the vehicle cross the fog line three times
and drive on the rumble strip twice, as well as weaving in his own lane of traffic.
Trooper Muri testified that drivers do not typically drive on the rumble strip for no reason
and the behavior signaled that the driver was not attentive and could overcorrect the
vehicle. The District Court noted Trooper Muri’s observation that he was concerned that
the driver was impaired, falling asleep, distracted, or experiencing a medical problem.
The District Court found that Trooper Muri’s observations, together with his concerns
due to increased traffic accidents in the area, were factors to reasonably justify the
investigatory stop.
¶17 After our review of the record, we cannot conclude that the District Court’s
findings of fact were clearly erroneous. They are supported by substantial evidence that
the District Court determined to be credible and are not based on a misapprehension of
the evidence.
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¶18 Issue Two: Whether the District Court erred by ordering Duong to pay the costs
of his interpreter.
¶19 On September 16, 2013, the District Court sentenced Duong. In addition to the
six-year deferred sentence, the court ordered Duong to pay a number of fees including
$800 for his public defense attorney and $325 for the costs of the interpreter. Duong
argues, and the State agrees, that the District Court exceeded its authority by ordering
Duong to pay the interpreter fees. A “district court’s authority to sentence a criminal
defendant is both defined and constrained by statute.” State v. Krum, 2007 MT 229, ¶ 11,
339 Mont. 154, 168 P.3d 658. Montana law provides that the Office of the State Public
Defender is responsible for interpreter fees incurred at the request of the public defender.
Section 47-1-201(5)(a), MCA; Alkire v. Mun. Court, City of Missoula, 2008 MT 223,
¶ 14, 344 Mont. 260, 186 P.3d 1288. The District Court erred when it imposed the cost
of the interpreter’s services on Duong. The Office of State Public Defender is
responsible for that expense, not the defendant.
¶20 Issue Three: Whether the District Court erred when it imposed a ten-percent
administration fee.
¶21 Duong also argues that the District Court erred when it imposed a ten-percent
administration fee. The State agrees. In the District Court’s written judgment, the court
imposed a ten-percent administration fee that was not pronounced during the oral
sentencing. Section 46-18-116, MCA, provides that a written judgment must comport
with the court’s oral pronouncement of sentence. “[I]n the event of a conflict between
the oral pronouncement of sentence and the written judgment and sentence, the oral
pronouncement of sentence controls.” State v. Kroll, 2004 MT 203, ¶ 15, 322 Mont. 294,
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95 P.3d 717 (citations omitted). Here, the oral pronouncement did not include the
ten-percent administration fee, but the written sentence did. Therefore, the written
sentence must be reformed to match the oral pronouncement of sentence.
¶22 Moreover, the District Court did not have authority to impose such a fee. In
addition to the fine for the underlying crime, a court may order a defendant to pay a
number of fees and costs including, but not limited to: a fee of ten percent of the amount
of restitution ordered for the cost of supervising the payment of restitution (§ 46-18-241,
MCA); a surcharge for each felony charged and any additional misdemeanors
(§ 46-18-236(1)(b), (c), MCA); a surcharge for court information technology (§ 3-1-317,
MCA); and the costs of assigned counsel (§ 46-8-113, MCA).
¶23 Here, the District Court’s written sentence imposed a ten-percent administration
fee for the collection of all fees. There was no restitution ordered in this case, thus not
implicating § 46-18-245, MCA. No Montana statute permits this type of administration
fee and the District Court exceeded its statutory authority by imposing it.
¶24 Although the remedy for an illegal sentence varies, in the past we have remanded
with instructions to strike when the offending portion affects only a condition of the
sentence. Krum, ¶ 23. Here, the illegal part of the sentence is only two of several fees
imposed on Duong and we remand to strike those provisions. Duong must serve his
six-year deferred sentence and is still required to pay the costs of his public defender and
other legal fees imposed by the District Court.
¶25 For the foregoing reasons, we conclude that the District Court did not err when it
found that Trooper Muri had sufficient facts to form particularized suspicion and legally
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stopped Duong. The District Court erred when it sentenced Duong to pay the costs of his
interpreter and a ten-percent administration fee.
¶26 Therefore, we affirm in part and reverse in part and remand to strike the illegal
portions of the sentence.
/S/ MIKE McGRATH
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ JIM RICE
/S/ BETH BAKER
/S/ PATRICIA COTTER
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