                                                                                               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

                                             8
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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