State v. Newbary

386 Mont. 51

• Court: Montana Supreme Court
• Decided: May 6, 2016
• Docket: CAUSE NO. DC-14-530
• Status: Published

Opinion

DECISION

On December 3, 2015, the Defendant was sentenced to: Count I: Twenty (20) years to the Montana State Prison, with twelve (12) years suspended, for the offense of Aggravated Assault - Bodily Injury, a Felony, in violation of §45-5-202, MCA; and Count II: Twenty (20) years to the Montana State Prison, with twelve (12) years suspended, to run concurrent to Count I, for the offense of Sexual Intercourse Without Consent, a Felony, in violation of §45-5-503, MCA. The Court imposed a parole restriction of four (4) years. The Court recommended Boot Camp upon completion of the MSP sentence. The Defendant was granted credit for time served in the amount of 26 days at the rate of $100.00 credit per day toward Defendant’s fine. However, the amount of credit given could not exceed the total amount due. The Defendant was ordered to pay Court-ordered restitution of $13,801.19.

On May 6, 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 was present and was represented by Peter Lacny of Datsopoulos, McDonald & Lind, P.C. The State was not represented. Judge John Larson was present and testified. The Defendant’s parents, Ben and Jamie Newbary, and his grandparents, Alan and Judy Zachariasen, were present.

Done in open Court this 6th day of May, 2016. DATED this 10th day of June, 2016.

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.

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