State v. Tumlin

386 Mont. 116

• Court: Montana Supreme Court
• Decided: November 18, 2016
• Docket: CAUSE NO. DC-13-323
• Status: Published

Opinion

DECISION

On December 11, 2014, the Court sentenced the Defendant to the Montana State Prison for a term of twenty (20) years, to run consecutive to his sentence from Lewis and Clark County, for the offense of Burglary, a Felony, in violation of §45-6-204(1), MCA. The Defendant was given credit for two hundred thirty one (231) days served in custody pending final disposition in this matter (April 17, 2014 to December 11, 2014). In addition to court ordered costs and fees, the Defendant was ordered to pay a fine of $1,000 and restitution in the amount of $32, 240.21 to Liberty Mutual Insurance and $4, 443.51 to victim Matt Kinsella.

On November 18, 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 Ohman of the Office of the State Public Defender. The State was represented by Flathead County Deputy Attorney Travis Ahner.

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).

It is the unanimous decision of the Division that the Defendant’s sentence be MODIFIED. The District Court departed from the plea agreement without written reasons in the Judgment and imposed the maximum sentence with no time suspended. The recommendation of the parties and the Pre-Sentence Investigation author was that Mr. Tumlin receive 20 years to the Montana State Prison with twelve (12) years suspended. Without a record as to why the suspended time was eliminated, the Division finds the sentence clearly excessive. The Division’s decision is that the Defendant’s new sentence be twenty (20) years to the Montana State Prison with twelve (12) years suspended to run consecutively to his sentence from Lewis and Clark County.

Done in open Court this 18th day of November, 2016. DATED this 8th day of December, 2016.

The remaining terms and conditions of the sentence imposed are not clearly inadequate or clearly excessive and are AFFIRMED.

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