text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT J. FERRELL, Defendant.
    NO. 90-044
    DECISION
   On September 14, 1993, the Defendant was sentenced to six (6) years for the revocation of Sexual Intercourse Without Consent. Credit was given for one day in jail prior to sentencing, and four months time served after the previous revocation hearing in this cause. The defendant shall not be eligible for parole until he has completed Phase I and Phase II of the Sex Offender Program and an alcohol treatment program.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

DATED this 19th day of November, 1993.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittriek, Chairman, Hon. G. Todd Baugh, Member and Hon. Robert Boyd, Alternate Member.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. WILLIAM LEROY NELSON, Defendant.
    NO. 93-28
    DECISION
    DATED this 19th day of November, 1993.
   On August 12, 1993, the Defendant was sentenced to Count I, eight (8) years for Felony Assault; Count II, one (1) year in the county jail to be served concurrently with Count I. The last four (4) years of the sentence is suspended and the defendant shall be placed on probation with conditions.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittriek, Chairman, Hon. G. Todd Baugh, Member and Hon. Robert Boyd, Alternate Member.


text:
    STATE OF MONTANA, Plaintiff, vs. DANIEL CHUDY, Defendant.
    NO. DC-88-013(A)
    DECISION
    DATED this 19th day of November, 1993.
   On June 8,1993, the Defendant was sentenced to Count I, ten (10) years for Felony Assault; Count II, ten (10) years for Felony Assault; the terms shall be served consecutively for a total of twenty (20) years. The defendant shall receive credit for 147 days and shall be designated a dangerous offender for purposes of parole eligibility.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. 6. Todd Baugh, Member and Hon. Robert Boyd, Alternate Member.


text:
    STATE OF MONTANA, Plaintiff, vs. DEWAYNE TODD CANNADY, Defendant.
    NO. DC-92-163A
    DECISION
   On April 27,1993, the Defendant was sentenced to twenty (20) years, dangerous, plus a ten (10) year enhancement for the use of a dangerous weapon. Credit was given for 239 days time served. The two sentences shall be served consecutively for a total of thirty (30) years.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Patrick Sherlock, Attorney from Kalispell. The State was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

DATED this 19th day of November, 1993.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, Member and Hon. Robert Boyd, Alternate Member.


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT R. CASS, Defendant.
    NO. DC-93-046(B)
    DECISION
    DATED this 19th day of November, 1993.
   On July 21,1993, the,Defendant was sentenced to twenty (20) years with ten (10) years suspended for Forgery. Conditions were imposed and credit for 163 days was given.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, Member and Hon. Robert Boyd, Alternate Member.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BEN DANIEL ENOCH, JR., Defendant and Appellant.
    No. 93-437.
    Submitted on Briefs September 22, 1994.
    Decided December 13, 1994.
    51 St.Rep. 1306.
    269 Mont. 8.
    887 P.2d 175.

      For Appellant: Anne H. Watson and Herman A. Watson in; Watson & Watson, Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Ass’t. Attorney General, Helena; Betty Wing, Deputy County Attorney, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

Ben Daniel Enoch (Enoch) appeals from the judgment entered by the Fourth Judicial District Court, Missoula County, on his Alford plea to the felony offense of issuing bad checks. We reverse, concluding that the District Court abused its discretion in denying Enoch’s motion to withdraw his guilty plea.

On October 23,1992, Enoch was charged with a felony violation of § 45-6-316, MCA, issuing a bad check (common scheme). He entered a plea of not guilty on November 18, 1992. Enoch’s next appearance before the District Court was on May 10, 1993, for a change of plea. At that time, Enoch’s counsel advised the court:

Your Honor, I have spoken to my client, and I am not sure if he wants to change his plea. I told him it was his decision. For the record, there is no plea bargain. Ms. Wing told me she would recommend a ten-year sentence, and I told my client, with that in mind, we could plead this straight up and argue the sentence he wants, and he expressed some reservations this morning about doing that, so we need to get information from him about what he wants to do.

The District Court asked Enoch whether he wanted to go to trial; Enoch replied that he did. The court then recessed, with the intent of reconvening fifteen minutes later to schedule a trial date.

When the court reconvened, Enoch’s counsel advised that Enoch wanted to withdraw his not guilty plea and enter an Alford plea of guilty. No written waiver of rights was prepared or executed and no negotiated plea bargain agreement was made. After a short interrogation, the District Court accepted Enoch’s Alford plea and ordered a presentence report.

Enoch appeared before the District Court on June 28, 1993, for sentencing. Prior to sentencing, he orally requested to withdraw his guilty plea. The District Court denied Enoch’s motion, adjudged him guilty of the offense charged, and sentenced him to ten years imprisonment in the Montana State Prison.

Enoch raises five issues on appeal. The dispositive issue is whether the District Court erred in denying Enoch’s motion to withdraw his guilty plea. Because we reverse on that issue, we need not address the other issues raised on appeal.

The principles governing the entry and withdrawal of guilty pleas are contained in both statute and case law. See State v. Radi (1991), 250 Mont. 155, 818 P.2d 1203. Trial courts must meet statutory requirements such as those contained in §§ 46-12-210 and 46-16-105(1), MCA (1991), before accepting a guilty plea. Section 46-16-105(2), MCA, relates to withdrawal of a guilty plea.

No set rule or standard exists under which a trial court addresses a request to withdraw a guilty plea; each case must be considered in light of its unique record. Radi, 818 P.2d at 1206. Our standard in reviewing a district court’s denial of a motion to withdraw a guilty plea is whether the court abused its discretion. State v. Reynolds (1992), 253 Mont. 386, 390, 833 P.2d 153,155.

Three factors must be balanced when considering a criminal defendant’s attempt to withdraw a guilty plea: (1) the adequacy of the court’s interrogation at the time the plea was entered regarding the defendant’s understanding of the consequences of the plea; (2) the promptness with which the defendant attempts to withdraw the plea; and (3) the fact that the plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge. Radi, 818 P.2d at 1206 (citation omitted); State v. Koepplin (1984), 213 Mont. 55, 59-60,689 P.2d 921, 923. Because it is undisputed that Enoch’s guilty plea was not the result of a plea bargain, the third factor weighs in favor of allowing withdrawal of the plea.

With regard to the promptness factor, it has long been the rule that a request to withdraw a guilty plea should be made within a reasonable time. State v. Nance (1947), 120 Mont. 152, 165, 184 P.2d 554, 561. Because each case presents its own unique factual circumstances, we have declined to adopt specific parameters defining the timeliness of a motion to withdraw. In State v. Laverdure (1984), 212 Mont. 31, 35, 685 P.2d 375, 377, we concluded that a ten-month delay between the guilty plea and motion to withdraw was relatively prompt; in State v. La Tray (1986), 220 Mont. 358, 363, 715 P.2d 52, 55, a fourteen-month delay was not timely.

Here, Enoch pled guilty on May 10, 1993. Shortly thereafter, during an interview with probation department personnel preparing the presentence report, Enoch stated that he wanted to withdraw his plea. He reiterated that request during his next appearance before the District Court on June 28, 1993, one and one-half months after the entry of his guilty plea and prior to sentencing.

The State of Montana (State) suggests, without citation to authority, that we should consider Enoch’s indecision about whether to plead guilty or not guilty over the eight-month period between the filing of the information and the motion to withdraw the guilty plea in determining whether Enoch’s request to withdraw the plea was timely. Such an approach would radically alter the promptness factor from one examining time between entry of a guilty plea and a motion to withdraw that plea to one considering time between the filing of the charge and efforts to withdraw a guilty plea entered sometime thereafter. Such an approach also would permit us to hold a criminal defendant accountable for all time after filing of the charges in determining whether a motion to withdraw a guilty plea is timely. Neither our cases nor the fundamental concepts underlying the promptness factor support the State’s position. See State v. Mahoney (1994), 264 Mont. 89, 870 P.2d 65, 68-69; Reynolds, 833 P.2d at 156. We conclude that Enoch’s request to withdraw his guilty plea, which followed the entry of the plea by less than two months, was made within a reasonable time. Thus, the promptness factor also weighs in favor of allowing the withdrawal of Enoch’s plea.

The final factor we consider is the adequacy of the District Court’s interrogation at the time the guilty plea was entered. Enoch argues that the court’s interrogation was inadequate and, as a result, that his plea was neither knowing nor voluntary.

We have determined that a court’s interrogation on a change of plea is adequate where the court:

examines the defendant, finds him to be competent, and determines from him that his plea of guilty is voluntary, he understands the charge and his possible punishment, he is not acting under the influence of drugs or alcohol, he admits his counsel is competent and he has been well advised, and he declares in open court the fact upon which his guilt is based.

Mahoney, 870 P.2d at 68 (citations omitted). In addition, it is well-settled that a guilty plea must be a knowing and intelligent choice among the alternative courses of action open to the defendant. Radi, 818 P.2d at 1206; quoting North Carolina v. Alford (1970), 400 U.S. 25, 32, 91 S.Ct. 160, 164, 27 L.Ed.2d 162,168.

In this case, the following colloquy took place between the District Court and Enoch at the time Enoch entered his guilty plea:

THE COURT: Mr. Enoch, I would like to explain a few things to you. First of all, by withdrawing your plea of not guilty and entering a plea of guilty, you’re giving up virtually all of your rights except the right to be represented by an attorney. You lose the possibility of being found not guilty or being found guilty of a lesser included offense. You lose the right to confront witnesses that would be called to testify against you in a trial. You lose the right to subpoena witnesses to testify on your behalf, and you lose the right to a jury trial. Do you understand that?
MR. ENOCH: Uh-huh.
THE COURT: It is still your desire to withdraw your plea of not guilty?
MR. ENOCH: (No verbal response.)
MR. BECCARI: Do you still want to plead guilty?
(Whereupon, Mr. Beccari had a discussion with his client off the record.)
MR. BECCARI: Your Honor, he is going to enter an Alford plea.
MR. ENOCH: Yes sir.
THE COURT: Your not guilty plea is ordered withdrawn. Are you under the influence of any alcohol, medication, or other substance that would affect your reasoning powers?
MR. ENOCH: Medication.
THE COURT:Would that affect your reasoning powers?
MR. ENOCH: I wouldn’t think so.
THE COURT: Are you satisfied with the services of your attorney?
MR. ENOCH: Yes.
THE COURT: It is my understanding that on the plea of guilty, the State is going to recommend ten years in prison, and the defense is going to be able to argue for whatever sentence they want.
MS. WING: That’s correct.
THE COURT: Other than this understanding, have any promises or threats been made to you to induce you to enter a guilty plea? MR. ENOCH: Not overtly, no.
THE COURT: In any way?
MR. ENOCH: Well, just the fact that you face a lot more severe sentence by risking going to court. That is the only thing.
THE COURT: So just the sentencing factor is the only thing that has entered into the discussions with you, correct?
MR. ENOCH: Yes.
THE COURT: The Information alleges — the plea of not guilty is ordered withdrawn. Do you have a copy of the information?
MR. ENOCH: No — yes, I do — not with me.
THE COURT: The Information alleges that you committed the offense of issuing bad checks, a felony. That carries a penalty of up to ten years in the Montana State Prison and/or a fifty-thousand dollar fine. The allegation is that on or about and between June 12 through June 27, 1992, you issued or delivered three or more checks on a depository, First Security Bank, for the payment of money knowing that the checks would not be paid by the depository. The checks were written as part of a common scheme. How do you plead to that offense?
MR. ENOCH: Guilty.

By statute in Montana, a court must determine that a criminal defendant understands the following, among other things, before it accepts a guilty plea:

(l)(a) the nature of the charge for which the plea is offered;
(b) the mandatory minimum penalty provided by law, if any;
(c) the maximum penalty provided by law, including the effect of any penalty enhancement provision or special parole restriction; and
(d) when applicable, the requirement that the court may also order the defendant to make restitution of the costs and assessments provided by law;
(3) that the defendant has the right:
(a) to plead not guilty or to persist in that plea if it has already been made;
(b) to be tried by a jury and at the trial has the right to the assistance of counsel;
(c) to confront and cross-examine witnesses against the defendant; and
(d) not to be compelled to reveal personally incriminating information;
(5) that if the defendant’s plea of guilty is accepted by the courts, there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial;

Section 46-12-210, MCA (1991). In this case, the colloquy set forth above establishes that the statutory requirements were not met.

Specifically, the District Court failed to advise Enoch of: (1) the possibility that it could order restitution; (2) his right to persist in pleading not guilty; and (3) his right not to be compelled to reveal incriminating information. In addition to being statutory requirements, these are not minor or inconsequential matters. One of the court’s omissions concerned the fundamental right against self-incrimination as guaranteed by the Montana and United States Constitutions. Art. II, Sec. 25. Mont. Const.; U.S. Const. Amend. V. Rights this fundamental cannot be addressed adequately by the District Court’s broad statement that Enoch was “giving up virtually all of [his] rights....”

The State argues that the interrogation in this case was adequate because “[t]hroughout these proceedings, the court counseled Appellant with respect to the charges, the possible punishment, and the rights which would be waived by entry of a guilty plea.” Presumably, the State is relying on the colloquies which took place on separate dates in November, 1992, when Enoch was arraigned and entered his original not guilty plea. We reject this argument.

Neither the information provided to Enoch at the November arraignment and entry of not guilty plea proceedings nor the acknowledgement of rights he executed at that time meet the specific requirements of § 46-12-210, MCA (1991). The statutory requirements apply to the proceeding at which a guilty plea is to be accepted; here, the May 10 proceeding. Adopting the State’s position would totally vitiate those requirements and permit acceptance of a guilty plea based on information provided to a. criminal defendant in bits and pieces over a long period of time. This we will not do.

The State also contends that Laverdure is on point and mandates a conclusion that the District Court’s interrogation was adequate. We disagree. There, the record contained both a careful oral colloquy between the court and the defendant and a signed acknowledgement of waiver of rights by plea of guilty which contained the charge against the defendant and the associated penalty; an enumeration of the constitutional rights waived when one pleads guilty; an acknowledgement of the defendant’s satisfaction with his counsel; a denial that the defendant was under the influence of drugs or alcohol; and the following statement: “I believe I am guilty of this offense because I did assault the girl.”Laverdure, 685 P.2d at 377-378. At the change of plea hearing, the trial judge reviewed the written acknowledgement of waiver of rights, discussed with the defendant the constitutional rights he would relinquish by pleading guilty, and ascertained that the defendant was aware of the maximum penalties involved and that a factual basis existed for the plea. Laverdure, 685 P.2d at 377-378. We held that the interrogation was adequate under the standards delineated in State v. Lewis (1978), 177 Mont. 474, 582 P.2d 346. The record presently before us is readily distinguishable from that in Laverdure.

Here, no signed acknowledgement of waiver of rights by plea of guilty exists. It is true that Enoch executed an acknowledgement of rights on November 18, 1992; an acknowledgement of rights, however, is not the equivalent of an acknowledgement of waiver of rights by plea of guilty such as the court had before it in Laverdure. Nor, as discussed above, can a form executed some six months before the entry of the guilty plea be considered timely with regard to requirements which must be met at the time the plea is accepted.

Moreover, also as discussed above, the District Court did not discuss with Enoch all of the constitutional rights he would be waiving by entering a plea. In addition, Enoch’s Alford plea hardly equates to Laverdure’s affirmative statement of guilt premised on the factual basis for the charge.

Thus, it is clear that Laverdure does not support the State’s position here. Indeed, the record before us is a far cry from the careful, deliberate proceeding which occurred in Laverdure and which is required when a criminal defendant makes the important decision to waive the full panoply of fundamental rights by entering a guilty plea.

Nor can we say without doubt, on the record before us in this case, that the Mahoney and Radi voluntary, knowing and intelligent standard was met during the change of plea proceeding on May 10, 1993. One portion of the colloquy, concerning Enoch’s medication, relates to the “not acting under the influence of drugs,” “competent” and “understands” elements of Mahoney. In this regard, Enoch gave conflicting testimony regarding whether the medication he was taking would affect his reasoning powers:

THE COURT:... Are you under the influence of any alcohol, medication, or other substance that would affect your reasoning powers?
MR. ENOCH: Medication.
THE COURT: Would that affect your reasoning powers?
MR. ENOCH: I wouldn’t think so.

This exchange should have prompted the court to inquire further regarding Enoch’s medical condition, the type of medication he was taking or the effect of such medication. This is particularly true where, as here, the defendant had stated his desire to go to trial only a short time before. Further inquiry by the court may have resolved the question of what effect Enoch’s medication and physical condition had on his decision to enter a guilty plea and removed any doubt raised by the exchange quoted above.

The record is also somewhat equivocal about the firmness of Enoch’s decision to plead guilty during the May 10,1993, proceedings. Following the court’s question as to whether Enoch understood the rights he was waiving, Enoch responded:

MR. ENOCH: Uh-huh.
THE COURT: Is it still your desire to withdraw your plea of guilty?
MR ENOCH: (No verbal response.)
MR. BECCARI: Do you want to plead guilty?
(Whereupon, Mr. Beccari had a discussion with his client off the record.)
MR. BECCARI: Your Honor, he is going to enter an Alford plea.

Enoch’s lack of response to questions from both the court and his counsel, taken together with the additional facts that his counsel finally responded for him and that he had stated his desire to go to trial earlier the same day, raises doubts about the voluntary, knowing and intelligent nature of Enoch’s guilty plea.

With regard to the adequacy of interrogation factor, therefore, the record is clear that the statutory requirements were not met; in addition, the record at least raises doubts about the knowing, voluntary and intelligent nature of Enoch’s guilty plea. We have held that if there is any doubt that a guilty plea was not voluntarily or intelligently made, the doubt must be resolved in favor of the defendant. Koepplin, 689 P.2d at 926; citing State ex rel. Gladue v. Eighth Judicial Dist. (1978), 175 Mont. 509, 575 P.2d 65. On these bases, we conclude that the adequacy of interrogation factor relating to the withdrawal of a guilty plea — like the promptness and plea bargain factors — weighs in favor of allowing withdrawal of the plea.

Having concluded that the three factors which must be balanced when considering a criminal defendant’s attempt to withdraw a guilty plea all weigh in favor of withdrawal of the plea in this case, we hold that the District Court abused its discretion in denying Enoch’s motion to withdraw his guilty plea.

Reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER and WEBER concur.


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES WILLIAM LATRAY, Defendant.
    NO. DC-93-01
    DECISION
    DATED this 19th day of November, 1993.
   On June 22, 1993, the Defendant was sentenced to twenty (20) years for Sexual Intercourse Without Consent; with credit for 26 days time served.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

Judge Robert Boyd advised James LaTray that he had sentenced him in a previous matter, and gave Mr. LaTray the opportunity to have his sentence heard with a two-member panel or to continue the hearing and a three-member panel would hear it at a later time. Mr. LaTray agreed to have Judge Boyd recuse himself from the matter and have his case heard with a two-member panel.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman and Hon. 6. Todd Baugh, Member.


text:
    STATE OF MONTANA, Plaintiff, vs. JOHNNIE WAYNE FRANKFORTER, Defendant.
    NO. 3522
    DECISION
   On March 24, 1993, the, Defendant was sentenced to twenty (20) years with five (5) years suspended for Aggravated Assault; plus conditions and credit for time served from 2-24-92 through 3-2-92.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

DATED this 19th day of November, 1993.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, Member and Robert Boyd, Alternate Member.


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES FRANCIS ERDLE, Defendant.
    NO. 10552
    DECISION
    DATED this 19th day of November, 1993.
   On July 2, 1993, the Defendant was sentenced to five (5) years for the revocation of Domestic Abuse. The defendant was given credit for 142 days time served.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division hats the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, Member and Hon. Robert Boyd, Alternate Member.


text:
    STATE OF MONTANA, Plaintiff, vs. DANNY L. SEVERSON, Defendant.
    NO. 964
    DECISION

      DATED this 19th day of November, 1993.
   On July 23, 1993 the Defendant was sentenced to Count I, ten (10) years for Intimidation; Count II, ten (10) years for Disorderly Conduct; Count III, six (6) months for Assault; Count IV, six (6) months; said sentences shall be served consecutively; plus credit for 79 days time served; plus conditions.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Liz Honacker, Legal Intern from the Montana Defender Project. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, Member and Hon. Robert Boyd, Alternate Member.

The Sentence Review Board wishes to thank Liz Honacker, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. CONNIE SONNENBERG, Defendant.
    NO. DC-93-7
    DECISION
   On August 25, 1993, the Defendant was sentenced to five (5) years for Felony Forgery with three (3) years suspended. Credit is given for time served plus conditions.

On November 19,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Tbrger Oaas, Attorney from Lewistown, Montana. The state was not represented.

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 to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is' the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

DATED this 19th day of November, 1993.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, Member and Hon. Robert Boyd, Alternate Member.

The Sentence Review Board wishes to thank Tbrger Oaas, Attorney from Lewis-town, for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT ARNOLD SORENSEN, Defendant.
    NO. DC-88-61
    DECISION
   On July 3, 1989, the Defendant was sentenced to a term of twenty (20) years for the offenses of Criminal Possession with Intent to Sell, 6 counts, the terms of incarceration shall run concurrent with each other; plus $10,000 fine on each count; the fines shall be consecutive with each other so that the fines shall total the sum of $60,000. The defendant shall be punished for the offense of Criminal Sale of Dangerous Drugs, a felony; and Conspiracy to Commit the Offense of Criminal Sale of Dangerous Drugs, a felony, by imprisonment in the State Prison of Montana for a term of twenty (20) years for each count; plus $10,000 fine on each count, the fines shall be consecutive with each other so that the fines shall total the sum of $20,000. The terms of these two sentences shall run concurrent with each other. The defendant shall be punished for the offenses of Criminal Possession of Dangerous Drugs, 3 counts, misdemeanors, by incarceration in the Lincoln County Jail for a period of six (6) months for each count. The terms of incarceration shall run concurrently with each other and concurrent with the other sentences herein imposed. The total prison term imposed by this Judgment and Sentence shall be forty (40) years in the State Prison of Montana. Credit for fifty-nine (59) days shall be deducted from the sentence. The Defendant shall forthwith pay a surcharge of $8,000; such sum to be paid to the Clerk of the Court. That the fines and surcharge imposed by this Judgment and Sentence shall total the sum of $88,000.

On March 25, 1994, the Defendant’s application for review of that sentence was-heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Barb Benson, Legal Intern from the Montana Defender Project. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence is affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

DATED this 25th day of March, 1994.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Barb Benson, Legal Intern from the Montana Defender Project, for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. SHANE RUSSELL SAVAGE, Defendant.
    NO. DC-93-116
    DECISION
    DATED this 25th day of March, 1994.
   On December 14,1993, the Defendant was sentenced to ten (10) years at Montana State Prison for the offense of ESCAPE, a Felony. Five (5) years of the sentence are suspended with conditions. The defendant shall complete an In-Patient Drug and Alcohol Treatment Program before being eligible for parole. The defendant shall serve 188 days in the Gallatin County Detention Center and shall receive credit for 188 days previously served as of December 14, 1993. Plus other conditions as listed in the December 14,1993 Judgment.

On March 25, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was represented by Martin Lambert, Deputy County Attorney.

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 to increase it if such is possible. 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 stated that he wished to have his application for sentence review dismissed.

The Court took his motion under consideration and there was no objection from Martin Lambert, Deputy County Attorney.

IT IS HEREBY ORDERED that the petition is dismissed with prejudice.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Mr. Savage for representing himself and also wishes to thank Mr. Lambert for representing the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. RANDY KEITH RICKER, Defendant.
    NO. DC-90-77
    DECISION

      DATED this 24th day of March, 1994.
   On October 20,1993, the five (5) year suspended sentence for Negligent Homicide, heretofore entered on October 3,1990 is revoked. The defendant shall be punished by confinement in the Montana State Prison for a term of five (5) years. The defendant shall receive credit for time served which totals 21 days. The defendant shall be designated a dangerous offender. The court recommends that the Department of Corrections and Human Services not consider the Defendant eligible for parole until he has completed an inpatient alcohol treatment program.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to withdraw his petition.

IT IS HEREBY ORDERED that the matter is dismissed with prejudice.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.


text:
    STATE OF MONTANA, Plaintiff, vs. HOWARD PURSLEY, Defendant.
    NO. 10608
    DECISION
    DATED this 24th day of March, 1994.
   On July20,1993, the Defendant was sentenced to a term of five (5) years at Montana State Prison for the offense of THEFT, a Felony. Credit received in the amount of one hundred nineteen (119) days.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Howard Pursley for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. TIMOTHY SCOTT SNARIC, Defendant.
    NO. 9801/67
    DECISION
    DATED this 24th day of March, 1994.
   On April 29,1992, the Defendant was sentenced to a term of ten (10) years each on COUNT III, TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE, a Felony; and COUNT TV, BAIL JUMPING, a Felony, in the Montana State Prison. Having been convicted of a felony within five (5) years, the defendant is designated a persistent felony offender and the defendant is hereby sentenced to a term of five (5) years in the Montana State Prison. Said sentences shall run consecutive with each other and consecutive with the persistent felony offender sentence. Defendant shall receive credit for time served at Missoula County Jail from July 13,1991, through July 17,1991, and from December 16,1991, through date of sentencing, April 29,1992, in the amount of one hundred forty-one (141) days.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Mr. Snaric for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. TRACY GLENN BUCKINGHAM, Defendant.
    No. 10612
    DECISION
    DATED this 25th day of March, 1994.
   On September 3, 1993, the Defendant was sentenced to twenty-five (25) years at Montana State Prison for COUNT I, Aggravated Burglary, a Felony; Ten (10) years at Montana State Prison for COUNT II, Assault, a Felony. For the use of a dangerous weapon during the commission of these offenses, a sentence of ten (10) years was imposed. All of said sentences shall run consecutively with each other. Defendant shall be designated a dangerous offender. If paroled, as a condition to that parole, the Court imposes on defendant, the costs of any medical, psychological, or other mental health treatment of the victim caused by this incident. Credit is given for 167 days time served.

On March 25, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Dirk Beccari, Attorney from the Public Defender’s Office in Missoula, Montana. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court. The sentencing judge did take into account the mitigating circumstances when he provided that the defendant be placed with the Department of Corrections rather than ordered directly to the Montana State Prison in order that they have the discretion as to the defendant’s placement for his twenty (20) year sentence.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Dirk Beccari, Attorney at Law, for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. BRETT LEE GAMBLIN, Defendant.
    NO. 10454, 10757, & 10783
    DECISION
   On January 4,1994, the Defendant was sentenced as follows:

Cause No. 10454: (ten) 10 years for the crime of Forgery.

DATED this 24th day of March, 1994.

Cause No. 10757: Count I, (twenty-five) 25 years with fifteen (15) years suspended for Accountability of Criminal Sale of Dangerous Drugs; Count II, (five) 5 years for Accountability of Criminal Sale of Imitation Dangerous Drugs.

Cause No. 10783: Counts III, IV and V, (ten) 10 years on each count, all suspended.

Said sentences in Count I and II in Cause No. 10757 shall run concurrently with each other and concurrently with the sentence imposed in Cause No. 10454. Counts III, TV and V in Cause No. 10783 shall run concurrently with each other but consecutively to the sentences imposed in Cause No. 10454 and Cause No. 10757; plus terms and conditions of probation as stated in the January 4,1994 Judgment. The Defendant shall receive credit for 176 days time served.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Brett Gamblin for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. WILLIAM RAY WILLIAMSON, Defendant.
    NO. CR-92-54
    DECISION
   On December 15,1993, the Defendant was sentenced to ten (10) years for the crime of Deceptive Practices, a Felony and Theft of Services (2 Counts), a Misdemeanor. The defendant is committed to the Department of Corrections for placement in an appropriate correctional institution or community based program. Such institution may include Montana State Prison. Credit is given for 65 days served in jail prior to sentencing. The Court recommends that defendant be placed in Montana State Prison, and he be required to successfully complete the Prison’s chemical dependency program prior to his release; plus conditions.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 24th day of March, 1994.

The Defendant was present and represented himself. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed, lb clarify the decision, the defendant is committed to the Department of Corrections for placement in an appropriate correctional institution or community based program. This is an unrestricted commitment and the Department of Corrections and Human Services has the authority to place the defendant in a facility as they deem appropriate.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Mr. Williamson for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. RAYMOND EARL FRANCIS, Defendant.
    NO. CR 93-34
    DECISION
    DATED this 24th day of March, 1994.
   On August 30,1993, the Defendant was sentenced to four years at Montana State Prison, upon each of said four convictions (a total of 16 years), with all said sentences to be served consecutively. The last 12 years of said sentence is suspended with conditions, as stated in the August 30,1993 Judgment, for the offense of four charges of theft, all felonies.

On March 24, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to withdraw his Petition.

IT IS HEREBY ORDERED that the case is dismissed.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.


author: JUSTICE GRAY JUSTICE TRIEWEILER

text:
    PHIL MAY and BETTY MAY, Plaintiffs and Respondents, v. FIRST NATIONAL PAWN BROKERS, LTD., Defendant and Appellant.
    No. 94-189.
    Submitted on Briefs October 5, 1994.
    Decided December 15, 1994.
    51 St.Rep. 1367.
    269 Mont. 19.
    887 P.2d 185.

      For Appellant: Patrick R. Watt; Jardine, Stephenson, Blewett & Weaver, Great Falls.
    For Respondents: Howard F. Strause, Attorney at Law, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

First National Pawn Brokers, Ltd. appeals from a judgment entered against it by the Eighth Judicial District Court, Cascade County, and, more specifically, from the court’s refusal to vacate an arbitration award in favor of Phil and Betty May. We affirm, concluding that the District Court did not err in refusing to vacate the award on the basis of evident partiality or manifest disregard of the law.

Phil and Betty May (collectively, the Mays) brought an action against First National Pawn Brokers, Ltd. (FNP) for wrongful discharge under Montana’s Wrongful Discharge From Employment Act. They alleged that they were hired in April 1989, to manage FNP’s Great Falls store, and that they were induced to move to Great Falls from their home in Laurel by FNP’s salary offer to each of them of 5% of the gross revenues of the store. They further alleged that their long work hours and six-day work weeks were largely responsible for the increase in the store’s monthly gross from $16,000 to $100,000 during their tenure as managers.

According to the Mays, FNP cut each of their salaries from 5% to 3.4% of the gross in 1991, promising at that time never to reduce the salaries below that amount. They contended that over a three-day period in August 1993, FNP unilaterally reduced their compensation, yelled at them and made abusive remarks, and wrongfully discharged them.

FNP denied the material allegations of the Mays’ complaint. It asserted a number of affirmative defenses, including that the Mays voluntarily quit, that they did not mitigate their damages, and that their refusal to accept an offer of reemployment bars any recovery. The Mays offered to arbitrate the dispute pursuant to § 39-2-914, MCA. FNP accepted. The parties stipulated that the arbitrator would be Gordon R. Bennett (Arbitrator), retired district court judge, and the District Court appointed him to arbitrate the dispute.

An arbitration hearing was held on January 12, 1994. In his subsequent Memorandum and Award, the Arbitrator determined that the Mays were constructively discharged without good cause and, therefore, were wrongfully discharged. He set forth applicable statutory and case law definitions and a number of actions by Ben Brown, FNP’s agent, in support of his determination. Each of the Mays was awarded $132,432 in damages.

The Mays moved the District Court to confirm the arbitration award; FNP moved to vacate it. The court confirmed the award and entered judgment thereon. FNP appeals.

The issue on appeal is whether the District Court erred in refusing to vacate the award on the basis of evident partiality or manifest disregard of the law. Our standard in reviewing a court’s refusal to vacate an arbitration award is whether the court abused its discretion. Duchscher v. Vaile (Mont. 1994), 887 P.2d 181, 184, 51 St.Rep. 1364.

Montana’s Wrongful Discharge From Employment Act specifically provides for the voluntary arbitration of discharge disputes. Section 39-2-914, MCA. Once an offer to arbitrate is made and accepted,

arbitration is the exclusive remedy for the wrongful discharge dispute and there is no right to bring or continue a lawsuit under [the WDEA]. The arbitrator’s award is final and binding, subject to review of the arbitrator’s decision under the provisions of the Uniform Arbitration Act.

Section 39-2-914(5), MCA. Applying the statute to the record before us, it is clear that the Mays and FNP voluntarily undertook final and binding arbitration of their dispute, subject only to such review as is authorized by the Uniform Arbitration Act.

Montana’s Uniform Arbitration Act (MUAA) was adopted in 1985; it is codified at Title 27, Chapter 5, of the Montana Code Annotated. Under its provisions, a district court must confirm an arbitration award upon application of a party unless timely urged to vacate or modify the award. Section 27-5-311, MCA. It is undisputed that the Mays applied to the District Court for confirmation and that FNP timely urged that the award be vacated.

Judicial review of an arbitration award is strictly limited by statute. Duchscher, 887 P.2d at 183. The grounds for vacating an arbitration award on application of a party are specified in § 27-5-312(1), MCA:

(a) the award was procured by corruption, fraud, or other undue means;
(b) there was evident partiality by an arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any party;
(c) the arbitrators exceeded their powers;
(d) the arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of 27-5-213, as to prejudice substantially the rights of a party; or
(e) there was no arbitration agreement and the issue was not adversely determined in proceedings under 27-5-115 and the party did not participate in the arbitration hearing without raising the objection.

The MUAA clearly does not authorize judicial review of arbitration awards on the merits of the controversy. Duchscher, 887 P.2d at 184.

Did the District Court abuse its discretion in refusing to vacate the award pursuant to § 27-5-312, MCA, on the basis of evident partiality?

FNP argues that the award, or the Arbitrator’s conduct, shows evident partiality and, thus, that the award must be vacated pursuant to § 27-5-312(l)(b), MCA. Its argument is premised on the following allegations of partiality:

1. The Arbitrator asked a number of irrelevant questions of FNP officer and stockholder Barbara Brown, concerning FNP’s stockholders and stock transfers;
2. the Arbitrator ‘badgered” witness Barbara Brown via the asking of one question;
3. the Arbitrator’s use of language such as “demonstrated no gratitude,” “exploited them unconscionably,” and “oppressed them” in characterizing FNP’s conduct in the written arbitration award; and
4. the Arbitrator’s interpretation of a September 1993, letter to the Mays’ counsel as containing an “implication that dismissal of the instant lawsuit would be a condition of re-employment.”

FNP relies on the following United States Supreme Court and United States Circuit Courts of Appeals cases in support of its position: Commonwealth Coatings Corp. v. Continental Casualty Co. (1968), 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301, reh. den. 393 U.S. 1112, 89 S.Ct. 848, 21 L.Ed.2d 812; Morelite Const. v. N.Y.C. Dist. Council Carpenters (2nd Cir. 1984), 748 F.2d 79; and Stroehmann Bakeries v. Local 776 (3rd Cir. 1992), 969 F.2d 1436.

We note that FNP merely extracts principles and statements from these cases without attempting to establish how or why the cases are applicable to the facts and circumstances before us. Nonetheless, we distinguish each below.

We begin by addressing Commonwealth and Morelite, both of which involved existing and uncontested relationships — one business and one familial — between the arbitrator and a party to the arbitration. In Commonwealth, the losing subcontractor in an arbitration proceeding sought to vacate an award under the United States Arbitration Act’s (USAA) “evident partiality” standard. The contractor and the subcontractor each selected an arbitrator and those arbitrators selected a third arbitrator. Unbeknownst to the subcontractor, the third arbitrator had significant business dealings with the contractor and had rendered services on the very projects involved in the arbitration. After an award had been made, the subcontractor became aware of the relationship and sought to have the award vacated.

In the course of discussing the “evident partiality” standard in general, Justice Black, writing for a plurality of four justices, stated that “any tribunal permitted by law to try cases and controversies not only must be unbiased but also must avoid even the appearance of bias.” Commonwealth, 393 U.S. at 150, 89 S.Ct. at 340. The Supreme Court decided the case by requiring that arbitrators “disclose to the parties any dealings that might create an impression of possible bias.” Commonwealth, 393 U.S. at 149, 89 S.Ct. at 339.

The case presently before us does not involve allegations of existing business or social relationships between the Arbitrator and the Mays. Thus, the Supreme Court’s Commonwealth disclosure requirement has no application here.

Moreover, even if the plurality’s broad statement that arbitrators must avoid even the appearance of bias were the Supreme Court’s holding in the case, it cannot be applied in a vacuum. The type of bias being addressed by the Supreme Court in Commonwealth — a direct, ongoing, undisclosed business relationship involving pecuniary gain to the arbitrator — might well meet any definition of “evident partiality.” Such partiality is not presented, even by allegation, here.

Similarly, the Second Circuit Court of Appeals’ Morelite decision is entirely inapposite to the case before us. There, the Second Circuit applied the “evident partiality” standard from the USAA to an arbitration award involving a construction contractor and a local union, noting that “what constitutes ‘evident partiality’ by an arbitrator is a troubling question.” Morelite, 748 F.2d at 82. It rejected a mere “appearance of bias” standard, determined that a “proof of actual bias” standard would be insurmountable, and held that “evident partiality” within the meaning of the USAA “will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration.” Morelite, 748 F.2d at 84. Applying that standard, the Second Circuit vacated the award before it on the basis of the father-son relationship between the arbitrator and an officer of the international union whose local was a party to the arbitration. Morelite, 748 F.2d at 85. We are not faced with such a relationship, or anything even remotely akin to one, here.

Finally, we examine the Third Circuit’s Stroehmann decision, cited by FNP for the proposition that evident partiality may be shown by such indications of bias as may be found both in an arbitrator’s behavior and comments during the hearing and in his opinion, and by indications that his findings and conclusions are based on something other than reason and fact. Suffice it to say in this regard that the Third Circuit’s affirmance of the vacating of an arbitration award was not based on the USAA’s “evident partiality” standard. The award in Stroehmann was vacated under the Labor Management Relations Act’s public policy exception to the general rule that courts may not review the merits of arbitration awards. Stroehmann, 969 F.2d at 1441. The present case does not present such a situation. The discussion in Stroehmann of the arbitrator’s bias and partiality related to whether the trial court’s remedial order remanding for hearing before a different arbitrator was proper. Stroehmann, 969 F.2d at 1446. That situation also is not before us here.

Having distinguished the primary authorities relied on by FNP, we examine FNP’s allegations of partiality to determine whether the District Court erred in refusing to vacate the arbitration award before us pursuant to § 27-5-312(l)(b), MCA, on grounds of evident partiality. We do so only briefly faced, as we are, with FNP’s failure to cite to any decisions of sister states on the subject. While we recognize that no Montana decisions have interpreted the MUAA’s “evident partiality” standard, the legislature has directed that we be guided by decisions in sister states which have enacted the Uniform Arbitration Act in order to effectuate the purpose of keeping the law uniform. See § 27-5-112, MCA (emphasis added).

The burden of proof in establishing a statutory basis for vacating an arbitration award is on the party attacking the award, here FNP. The partiality which will suffice to vacate an arbitration award must be certain, definite and capable of demonstration; alleged partiality which is remote, uncertain or speculative is insufficient. William B. Lucke, Inc. v. Spiegel (Ill. App. 1970), 266 N.E.2d 504, 508.

FNP’s allegations of partiality by the Arbitrator during the hearing are that he asked a number of irrelevant questions of an FNP witness and, via one specific question, “badgered” her. FNP contends that similar conduct was sufficient to constitute evident partiality in Holodnak v. Avco Corp. (D. Conn. 1974), 381 F.Supp. 191. We disagree.

Holodnak involved First Amendment considerations relating to the plaintiff’s publishing of an article critical of his employer’s and union’s practices. Throughout the proceedings, the arbitrator permitted questions about the plaintiff’s reading habits, political views and personal background; the arbitrator himself participated in questioning about the plaintiff’s views on communism and a trip to Cuba in 1960. He repeatedly showed undue concern for the plaintiff’s motives and at times openly badgered the plaintiff by persistent questioning. On the basis of such a record, the federal district court found “clear bias revealed by the arbitrator’s comments throughout the arbitration proceedings,” and vacated the award under the USAA’s evident partiality standard. Holodnak, 381 F.Supp. at 199.

Our scrutiny of the transcript before us in this case discloses no such improper conduct, bias or partiality by the Arbitrator. One series of arguably irrelevant questions and one other question characterized as “badgering” are not the quantitative equivalent of the repeated and persistent conduct of record in Holodnak. Furthermore, while the Arbitrator’s series of questions relating to FNP’s stockholders and stock transfers may have been of limited relevance here, the federal district court’s concern in Holodnak clearly was premised on the intrusive nature of the arbitrator’s questions into areas and views protected by free speech or privacy interests.

Nor do we agree that the Arbitrator’s asking of one question— which may have been perceived by FNP as rude or even hostile — constitutes the kind of badgering established by the record in Holodnak. Absent actual overt misconduct, a disappointed party’s perception of an arbitrator’s rudeness is not the sort of “evident partiality” contemplated as grounds for vacating an award. See Fairchild & Co. v. Richmond, F. & P.R. Co. (D.D.C. 1981), 516 F.Supp. 1305.

FNP’s remaining allegations of partiality concern the Arbitrator’s choice of language in characterizing acts of Ben Brown on FNP’s behalf, and his interpretation of a September 1993, letter. While FNP argues that these inclusions in the Arbitrator’s written award establish “evident partiality” under § 27-5-312(l)(b), MCA, we do not agree. At best, these arguments amount to speculative and conclusory allegations of partiality rather than the direct and demonstrable evidence of partiality required to vacate an award.

Indeed, boiled down to their essence, FNP’s award-based allegations constitute nothing more than disagreement by the losing party with the Arbitrator’s weighing of the evidence, credibility determinations, and ultimate resolution of the dispute. Through the guise of partiality arguments, FNP essentially seeks to have this Court review the merits of the controversy and the extent to which the evidence supports the Arbitrator’s decision. We are not free to do so under the MUAA. See Duchscher, 887 P.2d at 184; Seither & Cherry Co. v. Ill. Bank Bldg. Corp. (Ill. App. 1981), 419 N.E.2d 940, 945.

We conclude that FNP’s partiality allegations relating to the Arbitrator’s conduct during the hearing and the arbitration award do not establish “evident partiality” under § 27-5-312(l)(b), MCA. We hold, therefore, that the District Court did not abuse its discretion in refusing to vacate the award on that basis.

Did the District Court abuse its discretion in refusing to vacate the award on the basis of manifest disregard of the law?

FNP also argues that we should adopt the approach of some federal courts that an arbitration award based on “manifest disregard of the law” will not be enforced and, on that basis, vacate the award before us. FNP’s contention is that the Arbitrator manifestly disregarded the law in the following ways:

1. By incorrectly applying the “intolerable working conditions” definition for constructive discharge utilized by the federal district court in Russell v. Mini Mart, Inc. (D. Mont. 1988), 711 F.Supp. 556; and
2. by incorrectly interpreting two alleged offers of re-employment from FNP to the Mays.

FNP begins its argument on this issue by suggesting that this Court “endorsed” the “manifest disregard” approach in McIntosh v. Hartford Fire Ins. Co. (1938), 106 Mont. 434, 78 P.2d 82. McIntosh has no application here. It predated the legislature’s enactment of the MUAA by nearly fifty years and, for that reason, can hardly be said to have interpreted the statutes which now govern judicial review of arbitrations. Moreover, our “manifest injustice” language in McIntosh related specifically to insurance appraisal arbitration cases; in any event, it is not equivalent to the “manifest disregard” basis FNP asserts under several federal cases.

Nor are we willing to adopt the manifest disregard basis for vacating an arbitration award as FNP presents it here. As in the first issue, FNP extracts and reiterates general statements from three decisions of the United States Supreme Court and the Circuit Courts of Appeals. It makes no effort to establish how or why the case before us fits within the factual context of the cases containing the statements.

Moreover, FNP does not analyze how this Court properly could adopt and apply the manifest disregard standard given the strictly limited judicial review available under the MUAA and our statutory obligation to refrain from inserting into statutes matters not included by the legislature. See Duchscher, 887 P.2d at 183-184; §§ 27-5-312 and 1-2-101, MCA. Significantly, as in the first issue, FNP presents no authority from sister states applying the manifest disregard standard under their respective Uniform Arbitration Acts. It is clear that the legislature intended us to be guided by such sister state decisions in interpreting the MUAA, rather than simply following blindly every federal approach to arbitration.

Nor are the federal cases on which FNP relies in urging the “manifest disregard” basis for vacating an arbitration award particularly persuasive or useful. FNP first cites to Wilko v. Swan (1953), 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168, as the seminal case on the subject. No specific quote is offered and no mention of the facts of that case is made. In any event, however, the United States Supreme Court has expressly overruled Wilko, determining that it was pervaded by traditional judicial hostility to arbitration. Rodriguez de Quijas v. Shearson/Am. Exp. (1989), 490 U.S. 477, 109 S.Ct. 1917, 104 L.Ed.2d 526.

Next, FNP relies on San Martine Compania de Nav. v. Saguenay Term. Ltd. (9th Cir. 1961), 293 F.2d 796, as authority that manifest disregard may exist (1) where the arbitrator understands and correctly states the law, but proceeds to disregard it; and (2) if the record reveals a clear infidelity to what the arbitrator knows to be the law, but deliberately disregards. We note that the Ninth Circuit includes these types of statements primarily as quotes from the subsequently overruled Wilko decision and, indeed, characterizes them as “probably dictum” by the Supreme Court in that case. Moreover, the San Martine court clearly was troubled by the Supreme Court’s lack of definition of “manifest disregard” as it must be distinguished from mere errors of law which are not reviewable by courts. San Martine, 293 F.2d at 801. FNP does not cite to any post -Rodriguez de Quijas decisions from the Ninth Circuit or any other Circuit Court of Appeals addressing what might rémain of the “manifest disregard” basis after Rodriguez de Quijas.

We glean the following from FNP’s limited presentation of the “manifest disregard” standard: (1) that Wilko, asserted to be the seminal “manifest disregard” case, has been overruled; (2) that the “manifest disregard” basis probably was dicta even in its initial manifestation in Wilko; and (3) that FNP has offered no post-ifodriguez de Quijas analysis of the status of the “manifest disregard” basis for vacating an arbitration award in the federal courts, much less an analysis establishing how this Court properly could and should engraft such a basis onto a statute strictly limiting judicial review of arbitration awards. As presented in this case, we decline to adopt the “manifest disregard of the law” basis for vacating an arbitration award and, therefore, do not attempt to apply such a basis to the record before us.

We hold that the District Court did not abuse its discretion in refusing to vacate the award on the basis of manifest disregard of the law.

Are the Mays entitled to Rule 32, M.R.App.P., damages because

FNP’s appeal lacks substantial and reasonable grounds?

The Mays request that we assess damages against FNP pursuant to Rule 32, M.R.App.P., because the law is clear on the issues raised in the appeal, and the appeal is frivolous, mean-spirited or taken for purpose of delay, and totally without merit.

While we agree that the record before us does not establish evident partiality under any reasonable interpretation of that statutory language, we have not heretofore addressed that issue; thus, we cannot say that the law in Montana was clear on this issue prior to this case. On that basis, Mahrt v. Kalispell (1984), 213 Mont. 96, 690 P.2d 418, is distinguishable. Moreover, FNP did request a “change” from existing law, however inartfully presented, via its request that we adopt the manifest disregard basis for vacating an arbitration award. To that extent, the Mays’reliance on Lussy v. Davidson (1984), 210 Mont. 353, 683 P.2d 915, is misplaced.

Nor can we conclude from anything of record that the appeal is mean-spirited or taken for purpose of delay. While it should be clear from our discussions of the issues that we view this appeal as verging on the frivolous, we cannot conclude that it meets the standards we have established for the assessment of Rule 32 damages. Therefore, we decline to assess such damages.

AFFIRMED.

JUSTICES HARRISON, NELSON and WEBER concur.

JUSTICE TRIEWEILER

specially concurring.

I concur with the majority’s conclusion that the District Court did not abuse its discretion when it refused to vacate the arbitrator’s award.

However, I do not agree with all that is said in the majority opinion. I specifically do not agree with the majority’s conclusion that arbitration awards should not be reviewed for manifest disregard of the law.

While the parties in this case did enter into a true agreement to submit their dispute to arbitration; and while it may be more “judicially comfortable” to limit our review to the few bases provided for by statute; we, as a Court, have an independent responsibility to invalidate agreements which are in violation of public policy.

If an agreement to arbitrate relieves the parties to that agreement from their responsibilities provided for by law, as should be inferred from the majority opinion, then in my opinion, that agreement is void because it is contrary to the public policies of this State. The only way to uphold the agreement, then, is to hold that arbitration awards are reviewable for manifest disregard of the law. I also conclude that doing so does not exceed our statutory scope of review.

The majority states that:

Moreover, FNP does not analyze how this Court properly could adopt and apply the manifest disregard standard given the strictly limited judicial review available under the MUAA and our statutory obligation to refrain from inserting into statutes matters not included by the legislature.

However, reviewing arbitration awards for manifest disregard for the law is perfectly consistent with the statutory bases for reviewing arbitration awards. Section 27-5-312(l)(b), MCA, provides that arbitration awards may be vacated by a district court where “there was evident partiality by an arbitrator ... or misconduct prejudicing the rights of any party ....”

Those federal decisions which have discussed the meaning of a “manifest disregard of the law” have concluded that it involves more than simply a misapplication of the law. It results where the record reveals that the arbitrator clearly understands the law but deliberately disregards it. See San Martine Compania de Navegacion, S.A. v. Saquenay Terminal, Ltd. (9th Cir. 1961), 293 F.2d 796, 801. If understanding, but then blatantly refusing to follow the law is not evidence of partiality or misconduct which prejudices the rights of the victimized party, then I do not know what would satisfy that statutory standard for setting aside an arbitration award.

I am also troubled by the majority’s repeated criticism of the appellant for failing to cite to authority from sister states which would allow this Court to review the arbitrator’s findings of fact or conclusions of law, while at the same time it refuses to acknowledge that such authority has in fact been brought to its attention.

When discussing whether evident partiality has been established, the majority states:

We do so only briefly faced, as we are, with FNP’s failure to cite to any decisions of sister states on the subject. While we recognize that no Montana decisions have interpreted the MUAA’s “evident partiality” standard, the legislature has directed that we be guided by decisions in sister states which have enacted the Uniform Arbitration Act in order to effectuate the purpose of keeping the law uniform.

Later in its opinion, the majority states that:

Significantly, as in the first issue, FNP presents no authority from sister states applying the manifest disregard standard under their respective Uniform Arbitration Acts. It is clear that the legislature intended us to be guided by such sister state decisions in interpreting the MUAA, rather than simply following blindly every federal approach to arbitration.

New Mexico is a sister state which has enacted the Uniform Arbitration Act atN.M. Stat. Ann. §§ 44-7-1 to -22 (Michie 1978). That state, through the decisions of its highest court, has limited its review of arbitration awards to the statutory bases provided for in the Uniform Act. However, in the application of those statutory criteria, that court has not found it necessary to turn a blind eye to a gross misapplication of the facts or the law. In Fernandez v. Farmers Ins. Co. of Arizona (N.M. 1993), 857 P.2d 22, 26, that court stated:

We recognize that under appropriate circumstances the district court may find an arbitration panel’s mistake of fact or law so gross as to imply misconduct, fraud, or lack of fair and impartial judgment, each of which is a valid ground for vacating an award.

(Citing Board of Educ. v. Prince George’s County Educators’ Ass’n (1987), 309 Md. 85, 522 A.2d 931, 938.)

In other words, even in the judiciary’s application of the statutory criteria for reviewing arbitrator awards, there must necessarily be some consideration of the arbitrator’s application of the facts and law. The majority opinion erroneously infers that there should be none. I cannot concur in such an abdication of judicial responsibility for the sake of efficiency, nor the implication that there is no authority for the scope of review proposed by the appellant.

For these reasons, I specially concur with the majority opinion.


text:
    STATE OF MONTANA, Plaintiff, vs. EDWARD GEORGE PASSAMA, Defendant.
    NO. DC-92-07
    DECISION
    DATED this 24th day of March, 1994.
   On January 25, 1993, the Defendant was sentenced to a term of four (4) years in the Montana State Prison for the offense of SEXUAL ASSAULT, a Felony. The court recommends, but does not require, that the defendant enroll and complete a sex offender treatment program while incarcerated at the Montana State Prison. During the term of this sentence, the defendant is prohibited from having any employment, or engaging in any occupation, wherein he has regular contact with persons under sixteen years of age. Within 14 days of coming into a county in which he resides or is temporarily domiciled, defendant must register as a sex offender with the chief of police of the municipality in which he resides, or the sheriff of the county if he does not reside in a municipality.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. Robert Boyd, Alternate Member, Hon. Ted Lympus, Member.

The Sentence Review Board wishes to thank Edward Passama for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. TRAVIS J. FRITZ, Defendant.
    NO. DC 92-598, 93-102 & 83-161
    DECISION

      DATED this 24th day of March, 1994.
   On August 24, 1993, the Defendant was sentenced to ten (10) years at Montana State Prison for the crime of Burglary, a felony. This sentence is to be served concurrently with the sentences imposed in 93-102,93-161, and 93-306. Credit is given for 103 days. Credit shall run concurrently with the sentences received in criminal cause numbers DC-93-102 and 93-161 and consecutively with the time served in the sentence received in criminal cause number DC-93-306.

In DC-93-102 for the Crime of Theft, the defendant is sentenced to the term of ten (10) years to rim concurrently with the sentences received in criminal cause numbers 92- 598, 93-161, and 93-306.

In DC-93-161 for the crimes of Count I, Theft and Count II, Theft, the defendant is sentenced to the term of ten (10) years on both to run concurrently with each other and to run concurrently the sentences received in cause numbers 92-598, 93-102 and 93- 306.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to dismiss his application for sentence review.

IT IS HEREBY ORDERED that the case is dismissed.

Hon. John Warner, Acting Chairman, Hon. Ted Lympus, Member, Hon. Robert Boyd, Alternate Member.


text:
    STATE OF MONTANA, Plaintiff, vs. JOSEPH LEROY GREENFIELD, Defendant.
    NO. DC 92-475
    DECISION
   On March 4,1993, the Defendant was sentenced to five (5) years at Montana State Prison for COUNT I, AGGRAVATED KIDNAPPING; twenty (20) years at Montana State Prison for COUNT II, ROBBERY; plus an additional six (6) years for the use of a firearm in Count II; ten (10) years at Montana State Prison for COUNT III, ROBBERY; and an additional 2 (two) years for the use of a firearm in Count III. All above sentences shall be served consecutively to each other. Defendant shall abide by the conditions as stated in the March 4, 1993 Judgment. Credit for time spent in Yellowstone County Detention Facility from October 8, 1992 through February 24, 1993, shall equal 140 days.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

DATED this 24th day of March, 1994.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same.

The reasons for the decision are: (1) the sentence imposed is presumed correct; (2) the judge fairly and adequately considered the case; (3) the judge did not abuse his judicial discretion; and the defendant was treated leniently under the circumstances.

Hon. John Warner, Acting Chairman, Hon. Ted Lympus, Member, Hon. Robert Boyd, Alternate Member.

The Sentence Review Board wishes to thank Joe Greenfield for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. DONALD JAY CAMPBELL, Defendant.
    NO. DC-7163
    DECISION
    DATED this 24th day of March, 1994.
   On October 27, 1993, the Defendant was sentenced to five (5) years at Montana State Prison for revocation of COUNT I, Theft, a Felony. The defendant is entitled to 148 days jail time which he has previously served.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed with the modification that pursuant to MCA 46-18-201(3), credit shall be allowed for jail or home arrest time already served. The defendant shall be credited for an additional 352 days time served on home arrest. All other portions of the sentence shall remain the same as originally imposed.

The reason for the decision is there was an apparent oversight on the credit for home arrest time that the defendant did not receive credit for. All other portions of the sentence imposed by the District Court are presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Donald Campbell for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. NORMAN LEE STEVENS, Defendant.
    NO. 10049
    DECISION
    DATED this 25th day of March, 1994.
   On October 19,1993, the Defendant was sentenced to a term of twenty (20) years for COUNT I, SEXUAL ASSAULT} and twenty (20) years for COUNT II, SEXUAL ASSAULT, with ten (10) years suspended on each of the sentences upon conditions as stated in the October 19, 1993 Judgment. Said sentences are to run concurrently to each other. The defendant shall receive credit for time served at Missoula County Jail from January 8,1992 through January 9,1992; and from November 7,1992, through November 9,1992, in the amount of five days.

On March 25, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Jeffrey D. Mora, Legal Intern from the Montana Defender Project. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed, however, a provision will be added, that when the defendant is ready for parole, he can, at the discretion of the parole board, complete his sex offender treatment with Dr. Scolatti on the outside, as part of his parole plan.

The reason for the decision is to allow the defendant to attend Dr. Scolatti’s program on the outside. All other portions of the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Jeffrey D. Mora, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


author: THE HONORABLE TODD BAUGH

text:
    STATE OF MONTANA, Plaintiff, vs. PHILLIP K. SADOWSKI, Defendant.
    NO. DC-89-63
    DECISION
    DATED this 25th day of March, 1994.
   On September 25, 1989, the Defendant was sentenced to forty (40) years at the Montana State Prison for the offense of Deliberate Homicide, a Felony. For using a firearm while engaged in the commission of the offense of Deliberate Homicide, the defendant shall serve a period of ten (10) years at Montana State Prison. This sentence shall be served consecutively to the sentence imposed for Deliberate Homicide. The Defendant is ineligible for parole for a period of seventeen (17) years. The defendant shall pay restitution in the amount of $1,661.10 to the Crime Victims Unit of the Board of Crime Control. The defendant shall participate and successfully complete the alcohol treatment program at the Montana State Prison and shall belong to Alcoholic’s Anonymous. The defendant shall receive credit for 160 days previously served.

On March 25, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented Stephen Roberts, Attorney at Law from Bozeman. The state was represented by Martin Lambert, Deputy County Attorney from Bozeman, Montana.

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 to increase it if such is possible. 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 stated that he wished to proceed.

After careful consideration, there was a split decision of the Sentence Review Board. Judge Warner and Judge Lympus voted to affirm the sentence as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

In reviewing Judge Olson’s letter, he expressed he would not object to a reduction by the Sentence Review Board and would five with that decision. This decision was a difficult one, but it was based squarely on the evidence and in view of the magnitude of the crime the sentence imposed is appropriate.

Hon. John Warner and Hon. Ted Lympus, Members.

DISSENT:

THE HONORABLE TODD BAUGH

DISSENTS. He voted to remove the no parole for 17 year eligibility and he would sentence him to the same as originally imposed, however, the defendant would not be eligible for parole until age 62 years old. The reason he would make this amendment, is given all the circumstances of this case, the amendment would make it more in line with other cases of a similar nature statewide. Also Judge Olson states in his letter to the Sentence Review Board that he believes the parole eligibility decision should be left up to the Sentence Review Board.

The Sentence Review Board wishes to thank Stephen Roberts, Attorney from Bozeman, for representing the defendant in this matter. The Board also wishes to thank Martin Lambert for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. PATRICK MARK TRACY, Defendant.
    NO. ADC-87-097
    DECISION
    DATED this 24th day of March, 1994.
   On January 25, 1988, the Defendant was sentenced to ten (10) years in Montana State Prison for the offense of Theft (Common Scheme), a felony. For persistent felony offender, the defendant is sentenced to an additional fifty (50) years in Montana State Prison, with forty (40) years of that sentence suspended, upon conditions as listed in the January 25,1988 Judgment. This sentence shall run consecutively to the sentence imposed herein for the felony theft offense. The defendant shall be given credit for 108 days time served.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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 to increase it if such is possible. 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 stated that he wished to continue his application.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition for sentence review shall be withdrawn. The defendant will be allowed to refile his application.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.