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State v. Travis

Court of Appeals of Louisiana, Fourth Circuit

February 13, 2019

STATE OF LOUISIANA
v.
GARY TRAVIS

          APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 528-705, SECTION "K" Honorable Arthur Hunter, Judge

          Jeff Landry Louisiana Attorney General Colin A. Clark Assistant Solicitor General and Chief of Criminal Appeals Section Pamela S. Moran Assistant Attorney General LOUISIANA DEPARTMENT OF JUSTICE COUNSEL FOR STATE OF LOUISIANA THROUGH THE LOUISIANA STATE ATTORNEY GENERAL'S OFFICE/APPELLANT

          Rachel S. Shur ORLEANS PUBLIC DEFENDER'S COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dale N. Atkins

          DALE N. ATKINS JUDGE

         In this criminal matter, the State of Louisiana appeals the district court's judgment declaring the sentencing statute in effect at the time of the alleged crime, La. R.S. 40:966(F)(1), unconstitutional as applied to defendant Gary Travis. For the reasons that follow, we reverse the judgment, vacate defendant's sentence, and remand for re-sentencing.

         BACKGROUND

         Gary Travis was charged in April 2016 with one count of possession with intent to distribute marijuana, a violation of La. R.S. 40:966(A)(1).[1] He pled not guilty at his arraignment, and after several continuances, the State amended the bill of information to charge defendant with one count of possession of marijuana between two and one-half pounds or more, but less than sixty pounds, in violation of La. R.S. 40:966(F)(1) (2015).[2] Trial was set for January 8, 2018. Defendant pled guilty and was sentenced to five years in the Department of Corrections, with five years suspended, plus two years and nine months of active probation. The trial court recognized the mandatory $10, 000 fine imposed by La. R.S. 40:966(F)(1) (2015), but counsel for defendant asked the court to hear testimony from Mr. Travis so that the court could downward depart from the $10, 000 fine in accordance with Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).

         The trial court heard testimony from defendant, who stated that he worked for FEMA for three months ending in October or November 2017, but he had not worked for approximately five years before that time due to a car accident that resulted in major back surgery. He lived with his fiancée but did not know how much she earned in her position as a Bridge Field Counselor for the State. Defendant explained that he did not have health insurance but saw a physician every two months as a result of his back surgery and paid $500 for each visit, plus additional money for medication. Defendant was also responsible for child support payments for his five children who do not live with him. His fiancée helped support the two children who lived with them; the fiancée also paid their eleven hundred dollars monthly rent.

         After hearing defendant's testimony, the trial court issued a Judgment with Reasons on February 2, 2018, finding that the mandatory fine imposed by La. R.S. 40:966(F)(1) (2015) was unconstitutional as applied to Mr. Travis, but holding that the remaining sentence would be effective. The court indicated that the Attorney General should be notified of the court's ruling. See La. R.S. 49:257 (C).[3]

         On February 28, 2018, the Attorney General filed a motion to vacate the trial court's February 2, 2018 ruling finding La. R.S. 40:966(F)(1) (2015) unconstitutional. The State also filed a motion to appeal the court's February 2 decision to the Louisiana Supreme Court.

         On March 8, 2018, defendant filed a Motion to Declare Mandatory Fine Unconstitutional. In the Motion, defendant argued that the fine mandated by La. R.S. 40:966(F)(1) (2015) violated his procedural due process rights, citing Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976), [4] and argued that the fine was a "grossly disproportionate" penalty considering his indigent status.

         The State and the Attorney General jointly opposed defendant's Motion. On March 27, 2018, the trial court vacated its February 2, 2018 ruling so that the Attorney General would have an opportunity to be heard.

         After a hearing involving defendant, the State, and the Attorney General, the trial court issued a ruling on April 18, 2018, again finding that La. R.S. 40:966(F)(1) (2015) violated defendant's due process rights and was unconstitutional. The district court nevertheless recognized that this Court "has consistently remanded sentences in which a judge fails to impose a mandatory fine in which the defendant is indigent." (Citing State v. Lewis, 2013-1588, p. 23 (La.App. 4 Cir. 8/27/14), 147 So.3d 1251, 1264; State v. Williams, 2003-0302, pp. 3-4 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, 753; and State v. Hall, 2002-1098, p. 6 (La.App. 4 Cir. 3/19/03), 843 So.2d 488, 494). The district court also determined that defendant presented a "persuasive argument" that his due process rights were being violated under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Finally, the court noted that even though the fine was a "future injury," the injury was "real, immediate, and direct." (citing Davis v. Fed. Election Comm'n, 554 U.S. 724, 734, 128 S.Ct. 2759, 2769, 171 L.Ed.2d 737 (2008)).

         On April 23, 2018, the Attorney General and the State timely filed a joint motion to appeal the district court's ruling.

         JU ...


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