State v. Emery

373 Mont. 88

• Court: Montana Supreme Court
• Decided: December 11, 2013
• Docket: CAUSE NO. DC-12-0766
• Status: Published

Opinion

On June 7, 2013, the Defendant was sentenced for Count II: Partner or Family Member Assault, a felony, in violation of Section 45-5-206(l)(a), MCA, commitment to the Department of Corrections for Five (5) years; will receive credit for time spent in pre-trail incarceration from 12/12/2012 thru 6/7/2013; pay $1,000 fine; and other terms and conditions given in the Judgment on June 7, 2013.

On November 7, 2013, 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., Attorney for the Montana Office of Public Defender. 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 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.” (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 inadequate or excessive.

DATED this 11th day of December, 2013.

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

Done in open Court this 7th day of November, 2013.

Chairperson, Hon. Loren Tucker, Member Hon. Brad Newman and Member Hon. Kathy Seeley.