FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 528-705,
SECTION "K" Honorable Arthur Hunter, Judge
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
S. Shur ORLEANS PUBLIC DEFENDER'S COUNSEL FOR
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Dale N. Atkins
N. ATKINS JUDGE
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
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). 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). 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).
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
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
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.
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),  and argued that the fine was a
"grossly disproportionate" penalty considering his
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.
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)).
April 23, 2018, the Attorney General and the State timely
filed a joint motion to appeal the district court's