State v. Brown

377 Mont. 3

• Court: Montana Supreme Court
• Decided: March 31, 2014
• Docket: CAUSE NO. DC-12-165
• Status: Published

Opinion

On July 3, 2013, the Defendant was sentenced for Count I: Assault On A Peace Officer, a felony, in violation of Section 45-5-210, MCA to Montana State Prison for Ten (10) years with Five (5) years suspended; Count H: Assault On A Peace Officer, a felony, in violation of Section 45-5-210, MCA to Montana State Prison for Ten (10) years with Five (5) years suspended; Count 1H: Assault On A Peace Officer, a felony, in violation of Section 45-5-210, MCA, to Montana State Prison for Ten (10) years with Five (5) years suspended; Count IV: Assault With A Weapon, a felony, in violation of Section 45-5-213, MCA to Montana State Prison for Ten (10) years with all that time suspended; and Count V: Criminal Endangerment, a felony, in violation of Section 45-5-207, MCA to Montana State Prison for Ten (10) years with Five (5) years suspended for a total of Fifty (50) years with Thirty (30) years suspended; Counts I, H, HI, IV and V shall run consecutive to each other; receive credit for time served of 171 days; Court recommends the NEXUS program or other mental health programs available; and other terms and conditions given in the Judgment on July 3,2013.

On February 28,2014, the Defendant’s Application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court (hereafter “the Division”).

The Defendant was present and was represented by Ed Sheehy, Jr., Montana Office of Public Defender. Mr. Sheehy appeared by Vision Net from his office in Missoula, Montana, due to severe weather and traveling conditions. The State was not represented.

Before hearing the Application, the Defendant was advised that the Division has the authority not only to reduce the sentence or affirm it, but also increase it. The Defendant was further advised that there is no appeal from a decision of the Division. The Defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 12, Rules of the Sentence Review Division of the Supreme Court of Montana, provides that, “The sentence imposed by the District Court is presumed correct. The sentence shall not be reduced or increased unless it is clearly inadequate or clearly excessive.” (Section 46-18-904(3), MCA).

The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is clearly inadequate or clearly excessive.

DATED this 31st day of March, 2014.

Therefore, it is the unanimous decision of the Division that the sentence shall be AFFIRMED.

Done in open Court this 28th day of February, 2014.

Chairperson, Hon. Brad Newman, Member Hon. Kathy Seeley and Member Hon. Brenda Gilbert.