State v. Kitchens

373 Mont. 96

• Court: Montana Supreme Court
• Decided: December 12, 2013
• Docket: CAUSE NO. DC-12-46
• Status: Published

Opinion

On October 22,2012, the Defendant was sentenced for Count IV: Criminal Distribution of Dangerous Drugs, a felony, in violation of Section 45-9-101, MCA, sentenced to Montana Department of Corrections for a period of Ten (10) years, with Ten (10) years suspended; Defendant shall receive credit for 73 days time served by reason of prior incarceration as of the date of this Judgment; and other terms and conditions given October 22, 2012, in the Judgment and Sentence.

On June 17,2013, Defendant’s suspended sentence dated October 22,2012, was revoked. Sentenced for Count IV: to the Montana Department of Corrections for a period of Ten (10) years, with Five (5) years suspended; Defendant shall receive credit for 113 days time served by reason of prior incarceration as of the date of this Judgment; Court expressly denies Defendant credit toward his sentence for any elapsed time while Defendant was under his initial probationary sentence, except for the time that Defendant was actually incarcerated on the charge in this case. Court’s reasons for denying credit are Defendant’s repeated violations of terms and conditions of his probation; and other terms and conditions given on June 17, 2013, in the Judgment and Sentence.

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”).

DATED this 12th day of December, 2013.

The Defendant appeared at his request by Telephone Conference Call from the Counselor’s Office at the Great Falls Pre-Release Center in Great Falls, Montana, 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.

Therefore, it is the unanimous decision of the Di-vision that the sentence shall be AFFIRMED.

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

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