State v. Klemp

386 Mont. 48

• Court: Montana Supreme Court
• Decided: May 5, 2016
• Docket: CAUSE NO. DC-15-385
• Status: Published

Opinion

DECISION

On December 31, 2015, the Defendant was sentenced to a ten (10) year commitment to the Montana State Prison for the offense of Count I: Tampering with Witnesses and Informants, a Felony, in violation of §45-7-206, MCA. The sentence was ordered to run concurrent with the sentence imposed in DC-15-299. Count II was dismissed by the Court. The terms and conditions of probation are the same of those in Defendant’s Cause No. DC-15-299.

On May 5, 2016, 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 appeared by video conferencing from the Great Falls Regional Prison and was represented by Jennifer Streano of the Office of the State Public Defender. The Missoula County Deputy Attorney, Jordan Kilby, submitted a written statement with attachments but was not present.

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.

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

At the hearing, Defense Counsel raised an objection to the County Attorney’s written submission since it included police reports which were presumed not before the judge at the time of sentencing. Defendant was sentenced per a plea agreement. The Division sustained the objection and the statement and police reports were not considered.

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