State v. Toole

377 Mont. 98

• Court: Montana Supreme Court
• Decided: September 8, 2014
• Docket: CAUSE NO. ADC-12-349
• Status: Published

Opinion

On February 28,2014, the Defendant was sentenced for Count I: Sexual Intercourse Without Consent, a felony, in violation of Section 45-5-503 (2011), MCA to Thirty (30) years to the Montana State Prison, with Fifteen (15) years suspended. The Court designates the Defendant as a Tier 1 sex offender; Defendant given credit for One (1) day for time already served; and other terms and conditions given in the Judgment on February 28, 2014.

On August 7,2014, 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 Travis A Cushman, Attorney at Law. 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 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 shall be AFFIRMED.

Done in open Court this 7th day of August 2014.

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