State v. Umphrey

386 Mont. 93

• Court: Montana Supreme Court
• Decided: October 7, 2016
• Docket: CAUSE NO. DC-13-089
• Status: Published

Opinion

DECISION

On February 10, 2016, the Court sentenced the Defendant for violation of the conditions of probation as follows: Count I: A commitment to the Department of Corrections for a term of fifteen (15) years with ten (10) years suspended, for the offense of Criminal Possession with Intent to Distribute (methamphetamine), a felony, in violation of §45-9-103, MCA; and Count II: A commitment to the Department of Corrections for a term of fifteen (15) years with ten (10) years suspended, for the offense of Criminal Possession with Intent to Distribute (marijuana), a felony, in violation of §45-9-103, MCA. Count II was ordered to run consecutive to Count I. Defendant received credit for time served on the revocation of 369 days to be applied to unsuspended time. She did not receive credit for any other elapsed probationary time due to her violations of probation. The Court recommended that the Defendant be screened for Elkhorn and Pre-Release programs if deemed appropriate by the Department of Corrections. Conditions previously imposed in the July 8, 2014 Judgment were re-imposed.

On April 8, 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 via videoconference from the Elkhorn Treatment Center and was represented by Peter Ohman, of the Office of the State Public Defender. 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 she understood this and stated that she 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).

Done in open Court this 7th day of October, 2016. DATED this 28th day of October, 2016.

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.