State v. Witcher

386 Mont. 88

• Court: Montana Supreme Court
• Decided: August 4, 2016
• Docket: CAUSE NO. DC-14-799
• Status: Published

Opinion

DECISION

On January 22, 2016, the Defendant was sentenced to a commitment to the Montana State Prison for a term of fifty (50) years, with twenty-five (25) years suspended, for the offense of Count II: Sexual Assault, a Felony, in violation of 45-5-502, MCA. This sentence was ordered to run consecutively to the sentence imposed in DC-14-798. It was further ordered that the Defendant receive credit for time spent in pre-trial incarceration from September 24,2014 to January 22,2016. It was further ordered that the Defendant pay restitution in the total amount of Seven Thousand Three Hundred Forty-Two Dollars and Eighty-Six Cents ($7,342.86). The Defendant was designated a Level 2 Sexual Offender. The Court dismissed Count I: Incest, a Felony.

On August 4, 2016, the Defendant’s application for review of that sentence came before the Sentence Review Division of the Montana Supreme Court.

The Defendant appeared by Vision Net from Crossroads Correctional Center and was represented by Brent Getty of the Office of the State Public Defender. The State was represented by Yellowstone County Deputy Attorney Mary Barry. The victim’s father, Joshua Mallary, was present, but since the Defendant waived, Mr. Mallory did not testify.

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 asked to speak to his attorney privately. After consulting with his client, Defendant’s attorney informed the judges that the Defendant did not wish to proceed. Mr. Witcher confirmed to the panel that he wanted to waive.

Therefore, it is the unanimous decision of the Sentence Review Division that the application for review of sentence is WAIVED.

Done in open Court this 4th day of August, 2016. DATED this 24th day of August, 2016. Hon. Brenda Gilbert, Chairperson, Hon. Kathy Seeley, Member and Hon. Brad Newman, Member.