State v. Steward

308 Mont. 23

• Court: Montana Supreme Court
• Decided: February 27, 2001
• Docket: No. DC-99-03
• Status: Published

Opinion

Decision

On May 25,1999, the defendant was sentenced to thirty (30) years in the Montana State Prison, with ten (10) years suspended.

On February 8, 2001, 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 Greg Jackson. The state was represented by Robert Zimmerman.

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.

It is the majority decision of the Sentence Review Division that this sentence shall be amended to thirty (30) years in the Montana State Prison, with twenty (20) years suspended. The defendant is ineligible for parole until he completes Phase I of the Sex Offender Treatment Program at the Montana State Prison. The Board also includes the additional condition of parole/probation that the defendant immediately enroll in, and complete, an outpatient sex offender treatment program.

The reasons for the amendment are that the sentence was excessive, as far as the jail time portion; the sentence appeared disproportionate to other sentences in the same category; the sentence exceeded the recommendation of the Pre-Sentence Investigation Report, as far as the recommended jail time; and the Board took into consideration the fact that the sex offender evaluation designated the defendant a Level 1 risk to re-offend.

Member, Hon. David Cybulski and Member, Hon. Katherine R. Curtis The Honorable Jeffrey H. Langton dissents.

It is Judge Langton's opinion that the sentence should be affirmed, as it is not clearly excessive, especially in light of the plea agreement which dismissed another felony sexual offense against a younger child. The sentence is appropriate in that it would allow the defendant time to complete both Phase I and Phase II of the Sex Offender Treatment Program at the Montana State Prison.

Chairman, Hon. Jeffrey H. Langton.