State v. Vogel

377 Mont. 112

• Court: Montana Supreme Court
• Decided: October 17, 2014
• Docket: CAUSE NO. DC-12-315(D)
• Status: Published

Opinion

On October 24, 2013, the Defendant was sentenced for Count I: Criminal Distribution of Dangerous Drugs, a felony, in violation of Section 45-9-101(1), MCA to committed to the Department of Corrections for a period of Five (5) years, with recommended placement for ISP (Intensive Supervision Program); and for Count H: Criminal Distribution of Dangerous Drugs, a felony, in violation of Section 45-9-101(1), MCA committed to the Department of Corrections for a consecutive period of Five (5) years, suspended. Defendant given credit for Six (6) days served in custody pending final disposition in this matter (9/15/12 to 9/20/12); and other terms and conditions given in the Judgment and Sentence on October 24,2013. Count HI: Criminal Distribution of Dangerous Drugs, a felony, in violation of Section 45-9-101(1), MCA was dismissed.

On September 26, 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 by Vision Net from the Probation & Parole Office in Kalispell, Montana. The Defendant was represented by Ed Sheehy, Jr., Montana Office of 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 Corut 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 dearly 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 26th day of September, 2014.

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