State v. Cooper

340 Mont. 45

Opinion

On July 11, 2006, the defendant was sentenced to a commitment to the Department of Corrections for a term of five (5) years, for violation of the conditions of a suspended sentence for the offense of Fraudulently Obtaining Dangerous Drugs, a felony.

On May 3, 2007, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by Eric Olson. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review 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 Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that “the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (§46-18-904(3), MCA).

Done in open Court this 3rd day of May, 2007. DATED this 22nd day of May, 2007.

The Division finds that the reasons advanced for modification are sufficient to hold that the sentence imposed by the District Court is excessive due to the fact that the judge’s sentence did not purport with the recommendation of the pre-sentence investigation writer as was indicated in the reasons of the judge’s sentence. Furthermore, for this particular defendant, the sentence does not consider rehabilitative aspects as required by statute.

Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be modified to a commitment to the Department of Corrections for a term of five (5) years, with two (2) years suspended. The terms and conditions shall remain as imposed in the Judgment of July 11,2006, with an added recommendation that the defendant be screened for Connections Corrections.

Chairperson, Hon. Randal I. Spaulding, Member, Hon. Katherine Irigoin and Member, Hon. Stewart Stadler.