text:
    STATE OF MONTANA, Plaintiff, vs. Richard N. Wise, Defendant.
    NO. CR 94-09
    DECISION
   On November 12, 1997, it was ordered that the defendant was guilty of violating the terms and conditions of the sentence heretofore imposed upon him on the 6th day of April, 1994, and the suspended portion of the sentence is hereby revoked. The defendant is committed to the Department of Corrections for 5 years, which is the full term that was suspended. It is further ordered that as a condition of the defendant’s parole, he will be required to produce a realistic plan to repay the restitution, attorney fees and costs ordered in the original judgment. The court recommends to the Department of Corrections that while the defendant is in their custody, he receive any chemical dependency treatment or courses that the Department has to offer. The defendant will not be given any credit for time on probation because he failed to use any time on probation for any productive purpose whatsoever, having committed multiple violations of both his conditions of probation and the orders of this court.

On February 19, 1998, 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. 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.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

Done in open Court this 19th day of February, 1998.

DATED this 12th day of March, 1998.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed. It is the recommendation of the Sentence Review Board that the defendant receive Chemical Dependency Treatment as soon as possible.

Chairman, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips.

The Sentence Review Board wishes to thank Richard N. Wise for representing himself in this matter.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER JUSTICE NELSON

license: Public Domain

text:
    LINCOLN COUNTY COMMISSION, Plaintiff and Appellant, v. RAY NIXON, Lincoln County Sheriff, JOE MAZUREK, Montana Attorney General, ARLYN GREYDANUS, Montana Division of Criminal Investigation, and any other Interested Person or Entity, Defendants and Respondents
    No. 98-273.
    Submitted on Briefs August 6, 1998.
    Decided December 8, 1998.
    1998 MT 298.
    55 St.Rep. 1222.
    292 Mont. 42.
    968 P.2d 1141.

      For Appellant: Amy N. Guth, Attorney at Law, Libby.
    For Respondents: Hon. Joseph P. Mazurek, Attorney General; Melanie A. Symons, Assistant Attorney General; Helena.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 Plaintiff Lincoln County Commission filed this action in the District Court for the Nineteenth Judicial District in Lincoln County, Montana, for the release of investigative material held by the defendant Lincoln County Sheriff and the Criminal Investigation Bureau of the Montana Department of Justice (CIB). The District Court issued an order in which it denied the Commission’s request for a hearing, denied the Commission’s request for dissemination of the investigative material, and denied the Commission’s request for fees and costs. The District Court then dismissed the complaint and application for release of investigative materials with prejudice. The Commission appeals from that order. We reverse and remand.

¶2 The dispositive issue on appeal is:

¶3 Did the District Court err when it dismissed the Commission’s application without conducting an evidentiary hearing or in camera review?

FACTUAL BACKGROUND

¶4 On March 31, 1998, the members of the Commission were informed that they were the targets of an investigation initiated by the office of the Lincoln County Sheriff. The investigation related to the allegedly improper use of county funds for mileage and meal expenses.

¶5 Detective Craig Martin, then in charge of the investigation, took the statement of Commissioner Larry Dolezal on April 1,1998. The detective assured Dolezal that a copy of the statement would be made available to him. The next day, Dolezal requested a copy of his statement from the Sheriff’s Office. On April 3,1998, Lincoln County Attorney Bernard Cassidy informed Detective Martin that, due to potential conflicts of interest, the investigation should be turned over to the CIB.

¶6 On April 6,1998, a newspaper article was published which revealed details of the investigation. A follow-up article appeared two days later. According to the newspaper, an “unidentified spokesman from the Lincoln County Sheriff’s Office” provided the information for the articles. Two other area newspapers subsequently revealed that they had also been approached by an “unidentified spokesman from the Lincoln County Sheriff’s Office.”

¶7 The Lincoln County Sheriff advised Dolezal and the Commission on April 7, 1998, that the investigative materials were unavailable because they had been turned over to the CIB. On April 14,1998, the CIB informed the Commission that because the investigation was ongoing, the materials would not be released.

¶8 The Commission filed the underlying complaint and application in this matter on April 23,1998. The complaint alleged that based on Article II, Section 9, of the Montana Constitution, the Commission was entitled to examine the investigative file. The Commission then scheduled an evidentiary hearing for May 20,1998.

¶9 In response, the CIB asserted that the investigative file contained confidential information, the release of which would compromise both the investigation and the privacy interests of informants and witnesses. The CIB included an affidavit from the principal agent assigned to the investigation which stated that the agent believed that the investigation would be compromised by the disclosure of the identities of “informants, witnesses or victims,” or the information they provided.

¶10 The District Court canceled the hearing. The Commission then renewed its request for an evidentiary hearing and requested in the alternative that the District Court conduct an in camera inspection of the investigative file.

¶11 The District Court denied the requests, denied the application for dissemination of the investigative materials, and dismissed the complaint with prejudice.

DISCUSSION

¶ 12 Did the District Court err when it dismissed the Commission’s application without conducting an evidentiary hearing or in camera review?

¶13 Our standard of review for a district court’s conclusions of law is whether the court’s interpretation of the law is correct. See Bozeman Daily Chronicle v. City of Bozeman (1993), 260 Mont. 218, 222, 859 P.2d 435, 437.

¶14 Article II, Section 9, of the Montana Constitution, provides:

No person shall be deprived of the right to examine documents or to observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.

¶ 15 The “right to know” is not an absolute right. It is balanced by the “demand of individual privacy,” a right which is also guaranteed by Montana’s Constitution: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.” Art. II, Sec. 10, Mont. Const.

¶16 A constitutionally protected privacy interest exists when a person has a subjective or actual expectation of privacy which society is willing to recognize as reasonable. See Montana Human Rights Div. v. City of Billings (1982), 199 Mont. 434, 440-41, 649 P.2d 1283, 1287.

¶ 17 In addition to the relevant provisions of the Montana Constitution, the dissemination of criminal justice information is addressed by the Criminal Justice Information Act. See §§ 44-5-101 to -515, MCA.

¶18 Section 44-5-103(3), MCA, defines confidential criminal information to include criminal investigative information. Information collected by a state agency, such as the Lincoln County Sheriff’s Office or the CIB, during a criminal investigation is therefore included within the definition of confidential criminal information.

¶19 Section 44-5-303, MCA, sets forth the restrictions on the release of confidential criminal information:

[Dissemination of confidential criminal justice information is restricted to criminal justice agencies, to those authorized by law to receive it, and to those authorized to receive it by a district court upon a written finding that the demands of individual privacy do not clearly exceed the merits of public disclosure.

¶20 A person is “authorized by law” to receive confidential criminal justice information pursuant to Article II, Section 9, of the Montana Constitution. See Allstate Ins. Co. v. City of Billings (1989), 239 Mont. 321, 325, 780 P.2d 186, 188. We reaffirmed this holding in Bozeman Daily Chronicle, 260 Mont. at 224, 859 P.2d at 439.

¶21 In Allstate, an insurance company sought access to law enforcement investigative files which contained information related to the death of one of its insureds. We held that the right to know permitted the insurance company access to the widest breadth of information possible, tempered only by the privacy rights of those identified in the investigative materials.

¶22 Our decision in Allstate included the following language:

Because the judiciary has authority over the interpretation of the Constitution, it is the courts’ duty to balance the competing rights at issue in order to determine what, if any information, should be given to a party requesting information from the government.

Allstate, 239 Mont. at 326, 780 P.2d at 189.

¶23 In Bozeman Daily Chronicle, a newspaper sought access to the investigative file of a police officer who was accused of committing sexual intercourse without consent. We held that while the newspaper was authorized by law to gain access to portions of the investigative file, the victim and witnesses had an expectation of privacy which clearly exceeded the merits of public disclosure. We concluded that the proper method of giving effect to the rights of all parties involved was for the district court to conduct an in camera inspection of the investigative file in order to determine what material could properly be released. See Bozeman Daily Chronicle, 260 Mont. at 229, 859 P.2d at 442. See also Allstate, 239 Mont. at 326, 780 P.2d at 189.

¶24 We also balanced the public’s right to know against individual privacy rights in Engrav v. Cragun (1989), 236 Mont. 260, 769 P.2d 1224, wherein we affirmed a district court decision that the demands of individual privacy outweighed the right of a member of the public to gain access to, and then to disseminate, various types of confidential criminal information. In Engrav, a student sought the names of all persons arrested in Granite County during a particular calendar year, the investigative files of those persons, the pre-employment investigative files of the law enforcement officers, and the daily telephone logs of the Sheriff’s Office. We held that the defendants, witnesses, informants, victims, and officers identified in the materials had privacy interests which outweighed the public’s right to know, particularly in light of the fact that much of the information the student sought could be acquired in statistical form, without compromising individual privacy interests. See Engrav, 236 Mont. at 267, 769 P.2d at 1228-29.

¶25 Here, the only privacy interest identified is that of the Commission, the same party which seeks the release of the investigative file. The CIB contends that its witnesses and informants also have a subj ective or actual expectation of privacy that society is willing to recognize as reasonable. The Commission’s right to know and the privacy interests of witnesses and informants identified in the investigative materials are potentially at odds. Therefore, the Constitution and our prior case law require that the District Court balance these competing rights.

¶26 While we agree that participants in the investigation may have privacy interests which outweigh the Commission’s right to view the investigative file, the record in this case does not demonstrate that the District Court undertook an analysis of the privacy interests of the parties involved, nor a balancing of those interests against the Commission’s right to know. This is what the Constitution and our prior case law require.

¶27 The CIB has asserted individual privacy rights in the materials sought by the Commission. Without an inspection of the investigative file, the District Court could not have determined the existence or extent of the privacy rights held by unidentified individuals, which must be known in order to balance those rights against the right to know. “A review of such documents is ... essential in determining whether or not the privacy interests of the ... witnesses can be protected while disseminating the remainder of the information.” Bozeman Daily Chronicle, 260 Mont. at 229, 859 P.2d at 442.

¶28 We conclude that in order to balance the respective rights of the parties where an assertion of privacy interests in confidential information sought by a member of the public is made, a district court should conduct an in camera review of the documents or information sought. Only then can it properly balance the respective rights of the parties and protect both rights to the greatest extent possible.

¶29 Accordingly, we reverse the order of the District Court dismissing the Commission’s complaint and request for the release of investigative materials. We remand to the District Court with instructions to conduct an in camera inspection of the investigative file in order to determine what material can be released to the Commission. The CIB and the Sheriff should be given the opportunity to demonstrate why all or portions of the documents should not be released, and the District Court should provide for the release of as much information as possible to the Commission, while maintaining the privacy rights of any witnesses or informants. To the extent the District Court deems it necessary to protect those interests, the release of investigative information should be limited by protective order.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and REGNIER concur.

JUSTICE NELSON

specially concurs.

¶30 I concur in our opinion as far as it goes. I would go further, however. First, to the extent that the District Court determines that any State agency or agent provided, “leaked” or otherwise made available investigative material and information to the media or to the public, then I would require that all the same material and information, without qualification, be made available to the Commission regardless of whether such material or information constitutes confidential criminal justice information and regardless of whether such material or information contains the identities of “informants, witnesses or victims.”

¶31 Quite simply, the State cannot have it both ways. If the material and information at issue is, in fact, criminal justice information, confidential or otherwise, then it is subject to the various rules, protections and requirements of Title 44, Chapter 5, the Montana Criminal Justice Information Act of 1979 (Act). To the extent that such material and information should not have been made available in the first place to the public or to the media under and absent compliance with the Act, then the State should be estopped from now, after the fact, claiming that the material and information is subject to the Act’s protections. Once the information has been wrongfully released, the damage to privacy rights has been accomplished and the investigation has been compromised. The bell cannot be un-rung; all that is left is to punish those individuals and agencies which violated the Act and to compensate those individuals whose privacy rights were violated.

¶32 Second, if the District Court determines that the Commission is entitled to any or all of the material and information at issue, then I would require that the court award the Commission its costs and reasonable attorney fees incurred in its action, in this appeal and on remand. Section 2-3-221, MCA; Bozeman Daily Chronicle v. Police Dept. (1993), 260 Mont. 218, 230-32, 859 P.2d 435, 442-44.


text:
    STATE OF MONTANA, Plaintiff, vs. Theresa M. Brian, Defendant.
    NO. ADC 96-200
    DECISION
   On August 27,1997, it was ordered, adjudged and decreed that for the offense of Criminal Possession With Intent to Sell (Tylox and Demerol), a felony, the defendant is sentenced to the Women’s Correctional Center for a period of ten (10) years. The Court recommends the defendant be placed in a pre-release center prior to her release from prison. The defendant is granted eighteen (18) days’ credit (August 10 - 27,1997).

On April 10, 1998, 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. 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.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

Done in open Court this 10th day of April, 1998.

DATED this 16th day of April, 1998.

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

Member, Hon. Richard Phillips, Member, Hon. Jeff Langton and Alternate Member, Hon. G. Todd Baugh

The Sentence Review Board wishes to thank Theresa M. Brian for representing herself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Rebecca Lynn Evered, Defendant.
    NO. 11325
    DECISION
   On September 10,1997, it was the judgment of the Court that defendant’s prior deferred sentence is hereby revoked and that the defendant be and she is hereby sentenced to a term of ten (10) years in the Montana Women’s Prison at Billings, Montana. The sentence shall run concurrently with the sentence imposed in Cause No. 12527. It is the recommendation of the Court to the Montana Women’s Prison authorities that they assist the Evered family in whatever way possible so that the defendant may be a kidney donor for her father. Due to the defendant’s failure to comply with the terms and conditions of her deferred sentence while under the supervision of the Department of Probation and Parole, the Court finds that she is not entitled to receive, and shall not receive, credit for any elapsed time between the date of her conviction and the date of this Order, except that she shall receive credit from August 20,1995, through August21,1995;from June 11,1996, through June 26,1996; from July 2, 1997, through July 23, 1997; and from September 3, 1997, through date of sentencing, September 10,1997, for forty-eight (48) days jail time which she has previously served.

On April 10, 1998, 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. 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.

Done in open Court this 10th day of April, 1998.

DATED this 16th day of April, 1998.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

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

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank Rebecca Lynn Evered for representing herself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Terri Humphrey, Defendant.
    NO. DC 96-453
    DECISION
   On September 30,1997, it was ordered, adjudged and decreed that the said defendant be punished by imprisonment in the Montana Women’s Prison at Billings, Montana, for the term of five (5) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 3 days. It is further ordered that the execution of said prison sentence this day imposed on said defendant, as hereinabove set forth, be and the same hereby is suspended, and said defendant is hereby placed on probation for said period of five (5) years, and the Court retains jurisdiction of said defendant in the above-entitled cause during the entire term of said imprisonment above-mentioned, and said prison sentence is suspended upon the following conditions to be performed and kept by said defendant during this term of probation.

Done in open Court this 10th day of April, 1998.

DATED this 16th day of April, 1998.

On April 10, 1998, 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 represented by Margaret Gallagher, 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. 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 amended so that the defendant is sentenced to the Department of Corrections for the remainder of her sentence instead of the Women’s Correctional System. All other terms of the sentence shall remain the same.

The reason for the change is that it allows the Department of Corrections to place the defendant where they deem most appropriate.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank Terri Humphrey for representing herself in this matter and Margaret Gallagher, Deputy County Attorney, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Terri Humphrey, Defendant.
    NO. DC 96-925
    DECISION
   On September 30,1997, it was ordered, adjudged and decreed that the said defendant be punished by imprisonment in the Montana Women’s Prison at Billings, Montana, for the term of ten (10) years to ran consecutively with the sentence received in criminal cause number DC 96-453. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 4 days. It is further ordered that the execution of the last six (6) years of said prison sentence this day imposed on said defendant, as hereinabove set forth, be, and the same hereby is suspended, and said defendant is hereby placed on probation for the last six (6) years of said period often (10) years to ran consecutively with the sentence received in criminal cause number DC 96-453, and the Court retains jurisdiction of said defendant in the above-entitled cause during the entire term of the last six (6) years of said imprisonment above-mentioned, and said prison sentence is suspended upon conditions, as stated in the September 30,1997 judgment, to be performed and kept by said defendant during this term of probation. The defendant is further notified that the law imposes upon her the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that she is hereunder Supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated, plus the sum of Five Dollars ($5.00) for Court Automation Surcharge. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty-Five Dollars ($25.00) to the Treasurer of this County. It is further ordered, adjudged and decreed that if the defendant fails to comply with any of the above-conditions, a bench warrant of arrest will be issued, the defendant apprehended, and the said defendant will be required to appear before this Court for further proceedings.

On April 10, 1998, 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 represented by Margaret Gallagher, 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. 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 amended so that the defendant is sentenced to the Department of Corrections for the remainder of her sentence instead of the Women’s Correctional System. All other terms of the sentence shall remain the same.

Done in open Court this 10th day of April, 1998.

DATED this 16th day of April, 1998.

The reason for the change is that it allows the Department of Corrections to place the defendant where they deem most appropriate.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank Terri Humphrey for representing herself in this matter and Margaret Gallagher, Deputy County Attorney, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Terri Humphrey, Defendant.
    NO. DC 97-280
    DECISION
   On September 30,1997, it was ordered, adjudged and decreed that the said defendant be punished by imprisonment in the Montana Women’s Prison at Billings, Montana, for the term of ten (10) years to run concurrently with the sentences received in criminal cause numbers DC 96-453 and 96-925. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 5 days. It is further ordered that the execution of the last six (6) years of said prison sentence this day imposed on said defendant, as hereinafter set forth, be and the same hereby is suspended, and said defendant is hereby placed on probation for the last six (6) years of said period of ten (10) years to run concurrently with the sentences received in criminal cause numbers DC 96-453 and 96-925, and the Court retains jurisdiction of said defendant in the above-entitled cause during the entire term of the last six (6) years of said imprisonment above-mentioned, and said prison sentence is suspended upon conditions to be performed and kept by said defendant during this term of probation. The defendant is further notified that the law imposes upon her the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that she is hereunder Supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated, plus the sum of Five Dollars ($5.00) for Court Automation Surcharge. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty-Five Dollars ($25.00) to the Treasurer of this County. It is further ordered, adjudged and decreed that if the defendant fails to comply with any of the above-conditions, a bench warrant of arrest will be issued, the defendant apprehended, and the said defendant will be required to appear before this Court for further proceedings.

Done in open Court this 10th day of April, 1998.

DATED this 16th day of April, 1998.

On April 10, 1998, 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 represented by Margaret Gallagher, 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. 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 amended so that the defendant is sentenced to the Department of Corrections for the remainder of her sentence instead of the Women’s Correctional System. All other terms of the sentence shall remain the same.

The reason for the change is that it allows the Department of Corrections to place the defendant where they deem most appropriate.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank Terri Humphrey for representing herself in this matter and Margaret Gallagher, Deputy County Attorney, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Bethany Lee Long, Defendant.
    NO. DC 94-90
    DECISION
   O n March 8, 1995, the court ordered that the defendant shall be punished by confinement in the Women’s Correctional Facility for a term often (10) years on Count I, with three (3) years suspended; for a term of five (5) years on Count II, with all suspended; and for a term of five (5) years on Count III, with all suspended. The sentence imposed on Count III shall run consecutive to the sentence imposed on Count II. The sentences imposed on Counts II and III shall run consecutive to the sentence imposed on Count I, for a total sentence of twenty (20) years, with thirteen (13) years suspended. The defendant shall receive credit for time served on these offenses, which as of the date of this Judgment totals thirty-nine (39) days. The Court as this time does not make a designation of the defendant as a dangerous or non-dangerous offender for purposes of parole eligibility. The Court specifically reserves the right under MCA 46-18-404(4) to make a determination of whether the defendant is a dangerous or non-dangerous offender at the time of a revocation of suspended sentence and reserves the right under MCA 46-18-202 to impose the restriction that the defendant be ineligible for parole while serving her term in the event that the defendant violates any condition of probation which results in revocation of her suspended sentence. The Court further orders that the suspended portion of the sentence shall be upon conditions as stated in the March 8, 1995 judgment, and the Court reserves the right to impose additional conditions of probation. The Court further orders that the defendant shall pay to the Lake County Drug Fund the sum of Five Hundred Dollars ($500.00) on Count I, the sum of Five Hundred Dollars ($500.00) on Count II, and the sum of Five Hundred Dollars ($500.00) on Count III. The Court further orders that the defendant shall pay surcharges of Fifty Dollars ($50.00) on Count I, Fifty Dollars ($50.00) on Count II, and Fifty Dollars ($50.00) on Count III, as required by law. The Court further orders that the defendant shall pay the mandated supervisory fee of One Hundred Twenty Dollars ($120.00) per year, prorated at Ten Dollars ($10.00) per month, for the number of months under supervision. Payments on the fee shall be made in the amount of Thirty Dollars ($30.00) per quarter to the Clerk of the District Court. The Court further orders that the drug fund fines and surcharges shall be paid to the Clerk of the District Court in monthly payments as determined by her probation officer, which payments shall commence thirty (30) days after the defendant’s release from the Women’s Correctional Facility.

Done in open Court this 10th day of April, 1998.

DATED this 17th day of April, 1998.

On April 10, 1998, 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. 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 amended to a two (2) year deferred sentence for each of the three counts, to run consecutive plus credit for time served.

Reasons for the amendment are: (1) No prior record. (2) The defendant was in college at the time of sentencing and was doing well. (3) The defendant has a good work history. (4) The sentence originally imposed is excessive compared to other sentences around the state for similar offenses, that is, selling less than Vz ounce of marijuana. (5) The record available to this division does not show that the Court considered the criteria found in §46-18-225, M.C.A, for sentencing nonviolent offenders.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank Bethany Lee Long for representing herself in this matter.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DANNY M. DAHLIN, Defendant and Appellant.
    No. 98-163.
    Submitted on Briefs October 29, 1998.
    Rehearing Denied January 28, 1999.
    Decided December 8, 1998.
    1998 MT 299.
    55 St.Rep. 1226.
    292 Mont. 49.
    971 P.2d 763.
    For Appellant: Chad Wright, Appellate Defender’s Office, Helena.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General, Helena; Thomas P. Meissner, County Attorney, Forsyth.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

¶ 1 Danny Dahlin appeals from his conviction of perjury in the Tenth Judicial District Court, Fergus County. We affirm.

¶2 The issues are:

¶3 1. Is Dahlin’s perjury conviction invalid because the court allowed as evidence testimony from his brother’s earlier DUI trial the result of which was later reversed on appeal?

¶4 2. Did the verdict form deny Dahlin’s right to a unanimous jury verdict?

¶5 3. Did the court err in admitting the testimony of Cami Meader that Dahlin’s brother had pushed her into the driver’s seat during the initial stop of the pickup and the testimony of Roxie Nilsen that she did not drive Dahlin to the pickup?

¶6 Dahlin was charged with perjury based on the allegation that he testified falsely at his brother’s trial for a January 2,1997 DUI (driving under the influence of alcohol) offense. The information alleged that Dahlin testified at his brother’s trial that he, not his brother, was driving the vehicle when his brother was arrested for DUI, and that this testimony was both false and material to the proceedings.

¶7 At his brother’s trial, Dahlin testified that he had been with his brothers, his mother, and Cami Meader at the Bar 19 in Lewistown, Montana, on the evening of January 2. Dahlin testified that he went home early and that Meader offered to drive his brother home. He testified that his brother later called him at home, saying he and Meader had been pulled over, Meader had been arrested for DUI and failure to carry insurance, and he needed someone to drive his truck home. Dahlin testified that because his mother was in bed and had been drinking, he called Roxie Nilsen and asked her for a ride into town to pick up his brother and the truck.

¶8 Dahlin further testified at his brother’s trial that when he did not find his brother where they had agreed to meet, he walked over to the parking lot where the truck was parked and found his brother sitting inside the pickup. Dahlin testified that he got in and began driving his brother home, but that when they saw a highway patrol officer following them, he became worried about being caught driving a vehicle with no insurance. He testified that he jumped out of the truck and ran away down an alley. Dahlin testified that he had lied in an earlier statement to the police when he said that his mother had given him a ride into town.

¶9 At Dahlin’s trial on the peijury charge, the State read into evidence Dahlin’s testimony at his brother’s DUI trial. The State then called Dahlin’s brother, who testified consistently with Dahlin’s testimony at the earlier trial.

¶10 Cami Meader testified at Dahlin’s perjury trial about events preceding the arrest of Dahlin’s brother for DUI. Meader testified that Dahlin’s brother had been driving the truck when it was stopped by Lewistown, Montana police officers but that he forced her into the driver’s seat after he was pulled over. Meader was arrested for DUI. ¶11 The State also presented the testimony of Kelly Mantooth, the Montana highway patrolman who arrested Dahlin’s brother for DUI. Mantooth testified that after Meader was arrested for DUI, the police officers moved the truck into a motel parking lot and instructed Dahlin’s brother, who appeared to be intoxicated and did not have a valid driver’s license, not to drive it. Dahlin’s brother walked away. Mantooth remained parked at the scene.

¶12 Mantooth soon saw a person wearing cowboy boots run from a motel across the street into the parking lot where the truck was parked. The truck drove off and Mantooth followed it through a series of turns. He lost sight of the truck for “a couple seconds” as it went around a corner, and then saw it stopped by the side of the road. When he approached, Dahlin’s brother was sitting in the passenger seat and no one was in the driver’s seat. The keys were on the road about twenty feet from the truck, and the driver’s side window was open. Mantooth arrested Dahlin’s brother for DUI. At the police station, Dahlin’s brother told Mantooth that Dahlin had been driving the truck but had run away.

¶13 According to Mantooth, Dahlin went to the police station the next day and executed a written statement concerning the events of the previous night. He wrote that he was driving with his mother when they saw his brother walking down the street; they picked the brother up and took him to his truck, and Dahlin began driving the brother home. Dahlin wrote that when he realized they were being pulled over, he ran away because he was afraid he would be arrested for driving an uninsured vehicle. Dahlin’s written statement was introduced into evidence at his trial. Also introduced into evidence was a second written statement executed by Dahlin later the same day, in which he wrote that the first statement was false and that he was at home when his brother was pulled over.

¶ 14 Roxie Nilsen testified at Dahlih’s trial that she was aware that Dahlin’s brother had been arrested for DUI. She testified that Dahlin and his brother asked her to help them by saying that she gave Dahlin a ride, but that she did not actually give him a ride that night.

¶15 In his defense, Dahlin presented expert testimony that Mantooth was far enough behind the truck that he would not have been able to see Dahlin running away from it. The jury found Dahlin guilty of peijury and he appeals.

Issue 1

¶ 16 Is Dahlin’s peijury conviction invalid because the court allowed as evidence testimony from his brother’s earlier trial the result of which was later reversed on appeal?

¶ 17 After Dahlin was convicted of peijury, this Court overturned his brother’s DUI conviction. State v. Dahlin, 1998 MT 113, [289 Mont. 182], 961 P.2d 1247. The basis for that decision was failure to provide a jury trial, which right Dahlin’s brother had not waived. Dahlin argues that evidence from his brother’s trial is no longer useable against him and that without the evidence from his brother’s trial the State cannot support the elements of his peijury conviction beyond a reasonable doubt. He maintains, therefore, that the peijury charge and his conviction of peijury must be dismissed with prejudice.

¶18 As authority for his position, Dahlin cites State v. White (Wash. App. 1982), 644 P.2d 693, and Loper v. Beto (1972), 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374. In White, the Court of Appeals ofWashington reversed defendant White’s peijury conviction after concluding that the testimony claimed to be peijury was literally true. The court then determined that the conviction was based upon insufficient evidence. White, 644 P.2d at 699. The court went on to rule, as to White’s separate trial on a theft charge, that the introduction of evidence of the peijury conviction for impeachment purposes rendered the conviction invalid. The court remanded so that a new trial could be held on the theft charge, excluding all evidence concerning the peijury conviction. White, 644 P.2d at 700.

¶19 In Loper, the United States Supreme Court overturned defendant’s conviction of statutory rape. At trial, the court had allowed into evidence testimony concerning defendant’s prior criminal convictions, which convictions the Loper Court held were constitutionally invalid because the defendant had been denied the assistance of counsel in those matters. The Court stated the issue as whether the use of prior void convictions for impeachment violated the right to due process of law when their use might well have influenced the outcome of the case. The Court held that retroactive application to invalidate the statutory rape conviction was proper because the absence of counsel in the prior convictions went to “the very integrity of the fact-finding process” and those convictions therefore lacked reliability. Loper, 405 U.S. at 484, 92 S.Ct. at 1019, 31 L.Ed.2d at 382.

¶20 Here, no prior conviction later determined invalid was introduced into evidence. Instead, the evidence introduced and now in dispute was the testimony of a witness, Dahlin, under oath at the prior trial. In contrast to the prior convictions at issue in White and Loper, Dahlin’s testimony has not been ruled invalid or void; the rationale for reversing Dahlin’s brother’s conviction was unrelated to Dahlin’s testimony. White and Loper are therefore not on point.

¶21 Dahlin argues that because his brother’s conviction has been reversed, there is nothing to indicate that he gave false testimony at an official proceeding. However, where a court has jurisdiction over subject matter, false testimony before the court is perjury, notwithstanding an ultimate determination that the proceeding is otherwise defective. United States v. Williams (1951), 341 U.S. 58, 68-69,71 S.Ct. 595, 601, 95 L.Ed. 747, 754-55. Dahlin concedes that the District Court had subject matter jurisdiction over his brother’s DUI trial and that it also had personal jurisdiction over his brother.

¶22 Further, this Court has upheld the use of evidence from a prior trial which has been declared invalid, as long as the evidence is otherwise admissible. State v. Hall (1988), 234 Mont. 57, 761 P.2d 1283; Waite v. Waite (1964), 143 Mont. 248, 389 P.2d 181. Apart from his argument that his testimony was inadmissible because his brother’s trial was later determined invalid, Dahlin has not argued that his testimony at that trial was otherwise inadmissible.

¶23 We hold that under these facts, Dahlin’s perjury conviction is not invalid due to the reliance upon testimony given at his brother’s DUI trial the result of which was later reversed.

Issue 2

¶24 Did the verdict form deny Dahlin’s right to a unanimous jury verdict?

¶25 The special verdict form given to the jury asked only for a finding of whether Dahlin was guilty or not guilty, without further elaboration. Jury Instruction No. 4 stated that Dahlin was charged with perjury, and Jury Instruction No. 13 defined that offense as “A person commits the offense of perjury if, in an official proceeding, he knowingly makes a false statement under oath or equivalent affirmation.” None of the jury instructions identified the specific date or facts of the charged act of perjury.

¶26 Dahlin argues on appeal that the jury instructions should have contained provisions limiting the jury’s consideration to the specific criminal act charged in the information — his testimony at his brother’s trial that he was driving his brother’s truck. Dahlin maintains that the jury, or some members thereof, may have voted to convict him for lying about other matters.

¶27 The difficulty in this argument is that Dahlin failed to offer a special verdict form containing the specifications which he now complains were fatally missing. Moreover, Dahlin’s counsel consented, during the settling of jury instructions, to the District Court’s suggestion that the jury be informed of the facts upon which the perjury charge was based in closing arguments. Counsel for both sides did, in fact, address this subject in their closing arguments.

¶28 Dahlin argues that this issue should nevertheless be reviewed under the plain error doctrine, citing State v. Weaver, 1998 MT 167, [290 Mont. 58], 964 P.2d 713. In Weaver, the alleged error was failure to properly instruct the jury on multiple counts. In that case, a majority of this Court determined that the requirements for plain error were present: an alleged error implicating a fundamental constitutional right, which error would result in a manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of a trial, or compromise the integrity of the judicial process. Weaver, ¶ 25.

¶29 Dahlin also cites State v. Weldy (1995), 273 Mont. 68, 902 P.2d 1, in support of his plain error argument. In Weldy, the defendant was charged with felony assault under two alternative statutory subsections. The verdict form did not ask the jury to specify which of the two types of felony assault served as the basis for their finding; therefore, this Court concluded that the defendant’s constitutional right to a unanimous verdict was not protected by the jury instructions or the jury verdict form. Weldy, 273 Mont. at 78, 902 P.2d at 7.

¶30 In contrast to defendants Weaver and Weldy, Dahlin was charged with an offense under a single theory. Nothing in the arguments of counsel, the jury instructions, or the special verdict form contradicted this fact. We conclude that this is not a case in which review is justified under the plain error doctrine, and that this issue was waived in the proceedings below. It cannot now be raised on appeal.

Issue 3

¶31 Did the court err in admitting the testimony of Cami Meader that Dahlin’s brother had pushed her into the driver’s seat during the initial stop of the pickup and the testimony of Roxie Nilsen that she did not drive Dahlin to the pickup?

¶32 Our standard of review of a trial court’s decision on the admissibility of evidence is whether the court abused its discretion. State v. Medrano (1997), 285 Mont. 69, 72, 945 P.2d 937, 939.

¶33 Dahlin moved in limine to exclude Nilsen’s testimony on the basis that whether she gave him a ride to the pickup was immaterial or irrelevant to the perjury charge against him. The court found that Nilsen’s testimony was relevant. Dahlin argues on appeal that Nilsen’s testimony was both irrelevant and unduly prejudicial.

¶34 As the District Court noted, Dahlin’s story about how he arrived at his brother’s pickup truck was inseparably intertwined with his story about driving the pickup truck, as part of the res gestae. Well-established law allows the admission of evidence as to all facts and circumstances surrounding the commission of a crime. See, e.g., State v. Moore (1992), 254 Mont. 241, 836 P.2d 604. The jury was entitled to judge the credibility of Dahlin’s entire story in order to determine whether he lied about driving his brother’s truck.

¶35 Rule 403, M.R.Evid., provides that relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Dahlin contends that Cami Meader’s testimony concerning the first traffic stop of his brother’s truck, when she was in the driver’s seat, should have been excluded under this rule. He asserts that other equally probative evidence was available to the State, apparently referring to his brother’s testimony about why he needed Dahlin to pick him up. He also asserts that the introduction of this particular evidence raised the risk that the jury would convict him for crimes other than those charged or that it would convict on the basis that “a bad person deserves punishment.”

¶36 We, unlike Dahlin, credit the jury with the ability to distinguish between evidence concerning bad acts of Dahlin’s brother and evidence concerning bad acts by Dahlin himself. We agree with the District Comb that the jury was entitled to hear from all the available witnesses how this event came about. We hold that the District Court did not abuse its discretion in admitting the testimony of Meader and Nilsen.

¶37 Affirmed.

JUSTICES NELSON, LEAPHART, HUNT and TRIEWEILER concur.


text:
    STATE OF MONTANA, Plaintiff, vs. Suzanne Meis, Defendant.
    NO. DC 97-47
    DECISION
   On October 1,1997, the defendant, Suzanne Meis, is guilty of the crimes of Burglary, a Felony, Section 45-6-204, M.C.A., and Illegal Possession of Alcohol, a Misdemeanor, Section 45-5-624, M.C.A. The defendant is committed to the Montana Department of Corrections for appropriate placement into a community-based program, facility, or state correctional institution, to potentially include the Montana Women’s Correctional Facility at Billings, Montana, for a period of ten (10) years, with five (5) years suspended on the Felony, subject to conditions as stated in the October 1,1997 judgment. The Court recommends to the Department of Corrections that the defendant be considered for placement at an appropriate prerelease center. It is further ordered that as restitution is collected, the Clerk of Court shall distribute said restitution to the Hamilton Fire Department, Hamilton, MT 59840.

On April 10,1998, 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. 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 amended from a sentence of ten (10) years with five (5) years suspended to D.O.C. to a three (3) year deferred sentence under all applicable terms of the judgment already issued, including restitution, probationary fee, and being placed with the Department of Corrections. Normal rules of probation apply, plus the defendant must obtain her GED or a high school diploma within one year of today’s date.

Reasons for the amendment are: (1) The defendant lacks a criminal history. (2) It is what was recommended by the State in the plea agreement. (3) The co-defendant in this case received a three (3) year de-

Done in open Court this 10th day of April, 1998.

DATED this 16th day of April, 1998.

ferred sentence. (4) It is more in line with similar sentences given for this offense for first time offenders.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Alternate Member, Hon. G. Todd Baugh.

The Sentence Review Board wishes to thank Suzanne Meis for representing herself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Rebecca S. Parish, Defendant.
    NO. DC 97-113
    DECISION
   On October 30,1997, it was the judgment of the Court that the defendant, Rebecca S. Parish is guilty of the felony offenses of Count I: Theft, in violation of Section 45-6-301, MCA 1995 and Count II: Criminal Endangerment, in violation of Section 45-5-207, MCA 1995, as charged in the Information. It is the decision of this court that the defendant, Rebecca S. Parish shall be committed to the custody of the Montana Department of Corrections for placement at the Montana Women’s Correctional Center, Billings, Montana for a term of ten (10) years on each of Count I and Count II. Such terms shall run concurrently. It is further ordered that the defendant shall be given credit for time already served in the Butte-Silver Bow jail in the amount of 51 days. It is further ordered that the sentence imposed in this matter shall run concurrent with that imposed by this Court in Cause No. DC 97-95. The sentence imposed in this matter also shall run concurrent with that imposed by the Montana Seventh Judicial District Court (Dawson County) in Cause No. DC 93-027. It is further ordered that the defendant shall be ineligible for parole in this matter until she completes the chemical dependency treatment program at the Montana Women’s Correction Center.

On April 10, 1998, 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.

Done in open Court this 10th day of April, 1998.

DATED this 16th day of April, 1998.

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. 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.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

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

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank Rebecca S. Parish for representing herself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Rebecca S. Parish, Defendant.
    NO. DC 97-95
    DECISION
   On October 30,1997, it was the judgment of the Court that the defendant, Rebecca S. Parish is guilty of the felony offense of Forgery, in violation of Section 45-6-325( l)(b), MCA 1995, as charged in Count II of the Information. It is the decision of this court that defendant, Rebecca S. Parrish shall be committed to the custody of the Montana Department of Corrections for placement at the Women’s Correctional Center, Billings, Montana for a term often (10) years. It is further ordered that the defendant shall be given credit for time already served in the Butte-Silver Bow jail in the amount of 51 days. It is further ordered that the sentence imposed in this matter shall run concurrent with that imposed by this Court in Cause No. DC 97-113. The sentence imposed in this matter also shall run concurrent with that imposed by the Montana Seventh Judicial District Court (Dawson County) in Cause No. DC 93-027. It is further ordered that the defendant shall be ineligible for parole in this matter until she completes the chemical dependency treatment program at the Montana Women’s Correction Center.

Done in open Court this 10th day of April, 1998.

DATED this 16th day of April, 1998.

On April 10,1998, 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. 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.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

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

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank Rebecca S. Parish for representing herself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Shawntel Booth, Defendant.
    NO. DC 97-545
    DECISION
   On February 11,1998, Shawntel Booth was convicted in this court of the crime of Aggravated Assault (Felony). It is therefore ordered, adjudged and decreed that the said Shawntel Booth be punished by imprisonment in the Montana State Prison at Deer Lodge, Montana, for the term of twenty (20) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 212 days. It is recommended that defendant Shawntel Booth be considered for placement at the Treasure State Correctional Training Center (boot camp). It is further ordered that should the defendant be paroled, conditions shall apply as stated in the February 11,1998judgment. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to 46-18-236, Montana Code Annotated, plus the sum of Five Dollars ($5.00) for Court Automation Surcharge. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty-Five Dollars ($25.00) to the Treasurer of this County. It is further ordered, adjudged and decreed that if the defendant fails to comply with any of the above-conditions, a bench warrant of arrest will be issued, the defendant apprehended, and the said defendant will be required to appear before this Court for further proceedings.

Done in open Court this 4th day of June, 1998.

DATED this 17th day of June, 1998.

On June 4,1998, 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. 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.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

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

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton

The Sentence Review Board wishes to thank Shawntel M. Booth for representing himself in this matter.


author: JUSTICE TRIEWEILER

text:
    ALBERT G. HOYEM TRUST, ANDREW HOYEM, JOHN HOYEM, and ANNA FITZGERALD, Successors and Co-Trustees, Plaintiffs and Appellants, v. ERROL T. GALT and SHARRIE GALT, Defendants and Respondents.
    No. 98-057.
    Submitted on Briefs June 11, 1998.
    Decided December 8, 1998.
    1998 MT 300.
    55 St.Rep. 1230.
    292 Mont. 56.
    968 P.2d 1135.

      For Appellants: Blair Jones, Jones Law Firm; Columbus.
    For Respondents: John P. Poston; Harrison, Loendorf, Poston & Duncan, PC.; Helena.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶ 1 The plaintiffs, Andrew Hoyem and Anna Fitzgerald, filed suit on behalf of the Albert G. Hoyem Trust in the District Court for the Fourteenth Judicial District in Meagher County against Errol T. Galt and Sharrie Galt to judicially establish in Hoyem Trust’s favor an unrestricted easement or way of necessity over and across certain real property owned by Gaits. Both parties filed motions for summary judgment. The District Court denied Hoyem Trust’s motion and granted Gaits’ motion. Hoyem Trust appeals the District Court’s order and judgment. We affirm the judgment of the District Court.

¶2 The issues on appeal are as follows:

¶3 1. Did the District Court err when it concluded that Hoyem Trust has an implied easement from existing use, rather than an implied easement by necessity?

¶4 2. What is the extent or scope of an easement by necessity?

¶5 3. Does the doctrine of laches apply to claims for an easement by necessity?

¶6 Because our resolution of Issue 1 is dispositive, we decline to address Issues 2 or 3.

FACTUAL BACKGROUND

¶7 Andrew Hoyem, John Hoyem, and Anna Fitzgerald are co-trustees of the Albert G. Hoyem Trust and the heirs and successors of Albert G. Hoyem. The trust is the owner of real property located in Meagher County, Montana.

¶8 Errol T. Galt and Sharrie Galt are the owners of real property adjacent to the northern boundary of the Hoyem Trust property.

¶9 On July 8,1938, Andrew Hoyem transferred the entire property at issue in this action, which includes both Gaits’ and Hoyem Trust’s parcels, to Hoyem Ranch Company. The Hoyem Ranch Company was eventually dissolved and, on July 1,1944, the real property owned by the ranch was simultaneously conveyed, roughly in thirds, to Andrew Hoyem’s sons; Albert Hoyem, Morris Hoyem, and George Hoyem. Albert Hoyem received the real property now owned by the Hoyem Trust. Morris Hoyem received the real property now owned by the Gaits.

¶ 10 In 1949, Albert and Morris paid for and erected a fence that separates the two tracts at issue. According to the trustees of the Hoyem Trust, the two brothers also erected a gate in the fence where the fence intersected the road historically used to access Albert’s property. Morris subsequently sold his property to the Gaits’ predecessors in interest, while Albert retained ownership of his property and leased it to neighbors. Finally, in a grant deed dated October 7,1977, Albert transferred his interest in the real property to the Albert G. Hoyem Trust.

¶11 When the Hoyem Ranch Company owned the entire tract of land, the road in question was in existence and serviced the areas of the tract now owned by the Gaits and Hoyem Trust. According to Hoyem Trust, it was clear to both Morris and Albert that an easement existed for Albert’s property prior to Hoyem Ranch Company’s conveyance of the tracts and conveyance to the brothers “because there was no other access but the one their father [Andrew Hoyem] had used.” Hoyem Trust further admits that “the brothers then memorialized the easement by placing a gate in the fence between their property exactly where the road used to access Albert’s property ran.”

¶ 12 Hoyem Trust maintains that the Hoyem family has since used the road which runs from its junction with a state secondary highway (294) through the Gaits’ property for access to the Hoyem Trust property. Hoyem Trust further asserts that the Hoyems have an unrestricted easement by necessity over the Gaits’ property, the scope of which, Hoyem Trust contends, should be completely unrestricted.

¶ 13 Gaits contend that Hoyem Trust does not have an easement by necessity because it cannot show the requisite strict necessity for that type of easement.

¶14 Following cross-motions for summary judgment, oral argument, and a review of the parties’ briefs, pleadings, and discovery documents, the District Court denied Hoyem Trust’s motion for partial summary judgment and concluded that Hoyem Trust possesses an implied easement from existing use over Gaits’ property and is entitled to summary judgment on that issue. The District Court further concluded that the easement by implication over Gaits’ land must be restricted to its historical use and the nature of the enjoyment by which it was acquired.

STANDARD OF REVIEW

¶15 We review a district court’s order granting summary judgment de novo. See Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. When we review a district court’s grant of summary judgment, we apply the same criteria considered by the district court. See Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P.2d 901, 903.

DISCUSSION

¶16 Did the District Court err when it concluded that Hoyem Trust has an implied easement from existing use, rather than an implied easement by necessity?

¶17 An easement by implication is created by operation of law at the time of severance, rather than by written instrument. See Big Sky Hidden Village Owners Ass’n v. Hidden Village, Inc. (1996), 276 Mont. 268, 277, 915 P.2d 845, 850. There are only two types of implied easements: (1) an intended easement based on a use that existed when the dominant and servient estates were severed, and (2) an easement by necessity.

Implied Easement by Necessity

¶18 We have defined an easement by necessity as follows:

[w]here an owner of land conveys a parcel thereof which has no outlet to a highway except over the remaining lands of the grantor or over the land of strangers, a way of necessity exists over the remaining lands of the grantor. Similarly, a way of necessity is found when the owner of lands retains the inner portion conveying to another the balance, across which he must go for exit and access.

Big Sky Hidden Village Owners Ass’n, 276 Mont. at 277, 915 P.2d at 850 (quoting Schmid v. McDowell (1982), 199 Mont. 233, 237, 649 P.2d 431, 433). We have set forth two basic elements of an easement by necessity: (1) unity of ownership, and (2) strict necessity at the time the unified tracts are separated. See Graham v. Mack (1984), 216 Mont. 165, 175, 699 P.2d 590, 596. A right-of-way by absolute necessity is created by implied grant over the remaining lands of the seller when the owner of a tract of land sells a part of the tract that has no outlet to a public road except over the other lands of the seller. See generally Graham, 216 Mont. 165, 699 P.2d 590.

¶ 19 In Graham, we explained the relationship of an easement by necessity to easements by implication. We held that:

An easement by necessity is a sub-species of implied easements. They are distinguished in the sense that implied easements are based upon a contract that is “open and visible at the time of conveyance,” Godfrey v. Pilon (1974), 165 Mont. 439, 446, 529 P.2d 1372, 1376. A way of necessity depends solely upon “strict necessity” at the time of conveyance and is, in that sense, more truly an implied use. State v. Cronin, 179 Mont. at 488, 587 P.2d at 399-400. The way of necessity arises when the strong public policy “against shutting off a tract of land and thus rendering it unusable” gives rise to a fictional intent defeating any such restraint, 2 Thompson on Real Property (1980 ed.) Sec. 351.

Graham, 216 Mont. at 175, 699 P.2d at 596.

¶20 Hoyem Trust contends that because both required elements were established by the undisputed facts in this case the District Court erred when it concluded that Hoyem Trust does not have an implied easement by necessity.

¶21 The first element, common ownership, Hoyem Trust contends, is conclusively established by the affidavit testimony of abstractor, James M. Johnson, premised upon his examination of the records of Meagher County, in which he concludes that, prior to severance in July 1944, the property of Hoyem Trust and the property of Galt were both held in common ownership by Hoyem Ranch Company. Hoyem Trust contends that the second element, strict necessity, is established by the public record which clearly indicates that, at the time of severance of the Hoyem Ranch Company properties, all property adjacent thereto was held or owned by third parties who were strangers in title to the common owner, Hoyem Ranch Company. Hoyem Trust maintains that pursuant to our decision in Graham, wherein we held that a “way [of necessity] granted must be over the grantor’s land, and never over the land of a third party or stranger to the title,” Graham, 216 Mont. at 175, 699 P.2d at 596-97, the only access to the public road from the property conveyed to Albert Hoyem, Hoyem’s predecessor-in-interest, was across property conveyed to Morris Hoyem, Gaits’ predecessor-in-interest.

Implied Easement from Existing Use

¶22 The second type of implied easement, an easement implied from existing use, arises only if, prior to the time the title or tract is divided, a use exists on the “servient part” that is reasonably necessary for the enjoyment of the “dominant part,” and a court determines that the parties intended the use to continue after division of the property. See Graham, 216 Mont. at 174, 699 P.2d at 596; see also Woods v. Houle (1988), 235 Mont. 158, 162, 766 P.2d 250, 253. This type of easement is sometimes called a “quasi-easement” before the tract is divided because an owner cannot hold an easement on his own land. See Pioneer Mining Co. v. Bannack Gold Mining Co. (1921), 60 Mont. 254, 263, 198 P. 748, 751.

¶23 For a use to give rise to an implied easement from existing use, it must be apparent and continuous at the time the tract is divided. See Graham, 216 Mont. at 174, 699 P.2d at 596. We have applied different standards to determine what is considered an “apparent and continuous use.” In Ruana v. Grigonis (1996), 275 Mont. 441, 453, 913 P.2d 1247, 1255, we agreed with the appellant’s argument that the respondents were required to produce evidence that showed “manifest, obvious, or permanent use” of the purported easement. In Godfrey v. Pilon (1974), 165 Mont. 439, 446, 529 P.2d 1372, 1375, however, we held that an easement is “apparent” when an “easement, path, ‘roadway of sorts,’ trail or ‘primitive road’ over the land” may be discovered upon reasonable inspection. While both definitions are accurate, we conclude that the requirement set forth in Godfrey that “an easement is apparent when it may be discovered upon reasonable inspection” is the minimum standard that must be met. Godfrey, 165 Mont. at 446, 529 P.2d at 1375.

¶24 Following our reasoning in Godfrey, an apparent easement need not be so formal as to be an improved, paved, or even graveled two-way road. As we stated in Godfrey, an apparent and continuous easement may be as simple as a path, “roadway of sorts,” trail, or “primitive road.” It is evident from Hoyem Trust’s own description that prior to the severance and simultaneous conveyance of the parcels of land to the three brothers, a quasi-easement across Morris’s parcel existed for Albert’s parcel. According to Hoyem Trust, Morris and Albert’s father, Andrew Hoyem, the owner of the Hoyem Ranch Company, used this road as the only access to his land. Once the property was severed and conveyed to Morris and Albert, the brothers memorialized the easement by placing a gate in the fence between their property exactly where the road used to access Albert’s property ran. In Godfrey, we held that “[t]he parties are presumed to contract with reference to the condition of the property at the time of the sale, provided the marks are open and visible.” Godfrey, 165 Mont. at 445, 529 P.2d at 1375. The fact that Morris and Albert placed a gate across the easement indicates that they were aware of the existence of the easement and contracted with reference to the condition of the property at the time of the conveyance. This apparent and continuous use at the time the tract was divided distinguishes this case from our decision in Kelly v. Burlington Northern Railroad Co. (1996), 279 Mont. 238, 927 P.2d 4. Since the time of that conveyance, the easement has been regularly used by the Hoyem family.

¶25 In addition to the requirement that the use be apparent and continuous at the time the tract is divided, an implied easement from existing use must also have a use that is reasonably necessary for the enjoyment of the dominant parcel. See Graham, 216 Mont. at 174, 699 P.2d at 596. Reasonable necessity, in this case, is established by the affidavit testimony of abstractor, James M. Johnson, premised upon his examination of the records of Meagher County, that the public record indicates that at the time of severance of the Hoyem Ranch Company properties, all property adjacent thereto was held or owned by third parties who were strangers in title to the common owner, Hoyem Ranch Company. Therefore, the only access to the public road from the property conveyed to Albert Hoyem, Hoyem Trust’s predecessor-in-interest, was by way of the easement across the property conveyed to Morris Hoyem, Gaits’ predecessor-in-interest. Section 1-3-213, MCA, requires that “[o]ne who grants a thing is presumed to grant also whatever is essential to its use.”

¶26 An easement implied from existing use passes to all future owners of the property pursuant to the requirement in § 70-20-308, MCA, that a “transfer of real property passes all easements attached thereto and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used.”

¶27 In Michaelson v. Wardell (1980), 186 Mont. 278, 607 P.2d 100, we upheld an implied easement from existing use pursuant to § 70-20-308, MCA, based on facts similar to those presented here. In that case we held:

The facts in this case, as found by the District Court, reveal such an implied grant of easement. Appellant was the owner in common of his present property and respondents’ present property. Before selling any of his property, appellant built the access road to serve the residence now owned by respondents. That road was continuously used by respondents and their predecessors to serve the residence. The road was and still is the only means of access used by respondents and their predecessors. When appellant conveyed the property to the first grantees, the Fourniers, he created under the above statute a permanent easement for use of the roadway as an access to respondents’ residence. The roadway is being used for the same benefit to respondents as it was to the original owner.

Michaelson, 186 Mont. at 281, 607 P.2d at 101.

¶28 Based on the foregoing facts supported by the public record and the admissions of the parties, Montana law regarding implied easements establishes conclusively that an easement implied from existing use, not an implied easement by necessity, exists in favor of Hoyem Trust over and across Gaits’ property. We agree with Gaits that the easement by necessity requirement of “strict necessity” did not exist at the time the property was severed in 1944 because a road existed which provided practical access to a public road for ingress and egress.

¶29 The presence of an implied easement from existing use necessarily defeats the strict necessity requirement of an easement by necessity. The critical distinction between the two types of implied easements, the existence of an apparent and continuous use of an easement which allows for ingress and egress at the time the tract is divided, is present in this case. Therefore, we conclude that the District Court did not err when it determined that Hoyem Trust holds an implied easement from existing use, rather than an implied easement by necessity.

Scope of Implied Easements

¶30 The extent and scope of an implied easement from existing use is determined by § 70-17-106, MCA, and § 70-20-308, MCA. Section 70-17-106, MCA, applies to implied grants of easements and provides that “[t]he extent of a servitude is determined by the terms of the grant or the nature of the enjoyment by which it was acquired.” Section 70-20-308, MCA, applies to implied reservations of easements and provides:

A transfer of real property passes all easements attached thereto and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred for the benefit thereof at the time when the transfer was agreed upon or completed.

Pursuant to these statutes, the extent and scope of the easement over Gaits’ property is limited to its historical use at the time the easement was created.

¶31 The scope of the easement is, therefore, limited to the uses the parties might reasonably have expected or anticipated. In this case, prior to severance and for over fifty years since, use of the easement has been limited to primarily agricultural and recreational purposes, and there is no evidence that the parties ever considered the easement to be unlimited in scope.

¶32 Accordingly, we conclude that the District Court did not err when it denied Hoyem Trust’s motion for partial summary judgment and granted summary judgment pursuant to Rule 56, M.R.Civ.P., in favor of Gaits. The District Court did not err when it found that Hoyem Trust has an implied easement from existing use, rather than an implied easement by necessity, and that the scope and extent of the easement is limited to agricultural and recreational purposes based on the historic use of the easement at the time of its creation.

¶33 The judgment of the District Court is affirmed.

JUSTICES GRAY, NELSON, HUNT and REGNIER concur.


text:
    STATE OF MONTANA, Plaintiff, vs. Danny M. Dahlin, Defendant.
    NO. DC 97-18
    DECISION
   On December 15,1997, it was the sentence and judgment of this court as follows: 1. For the offense of peijury, the defendant shall be sentenced to the Department of Corrections for a period of six (6) years. The last two (2) years of such term shall be suspended. 2. Against the sentence imposed above, the defendant shall be given credit for eighteen (18) days served in the Fergus County Jail. 3. This court recommends that the defendant volunteer for the Department of Corrections Boot Camp Program. Should the defendant successfully complete such program, he may petition this court for a reduction in sentence pursuant to Section 53-30-402, Montana Code Annotated. 4. During the suspended portion of this sentence, the defendant shall be under the supervision of the Adult Probation and Parole Bureau, and shall abide by all rules and regulations of such bureau. 5. The defendant shall obtain a chemical dependency evaluation, with some evaluator licensed by the State of Montana. The defendant shall be obligated to follow all treatment recommendations. The defendant shall sign a release of information, allowing his supervising officer and Department staff access to information to determine compliance herewith. This corut recommends that the Department of Corrections arrange for such evaluation to take place as soon as possible. 6. The defendant shall be obligated to reimburse Fergus County for the costs of his court appointed counsel in this matter. Such costs are the amount of $4,595.02. This amount shall be paid in monthly installments of $100.00, with the first such installment being due and payable within 60 days of the defendant’s release from custody of the department of corrections; whether such be parole or probation; or upon obtaining employment in any pre-release setting. Subsequent monthly installments of the same amount shall be due in each succeeding month. 7. According to Section 46-18-236, MCA, the defendant shall pay the mandatory surcharge of $20.00. Such amount shall be payable within 30 days of the defendant’s release from custody of the department; again upon being granted probation or parole or upon obtaining any employment in a pre-release setting. 8. The defendant shall be required to pay the $5.00 user court technology fee. Such shall be due and payable at the same time as the mandatory surcharge specified in the preceding paragraph. 9. Pursuant to séction 46-23-1031, MCA, the defendant shall pay the mandatory supervision fee of $120.00 for each year of supervision. 10. All amounts to be paid by the defendant shall be paid by cash or money order to the clerk of this court, whose address is P.O. Box 1074, Lewistown, Montana 59457. The defendant shall be required to pay the cost of supervision of restitution to the clerk of this court, which shall be in an amount equal to ten percent (10%) of the amount of restitution collected by the clerk. However, the amount due the clerk shall not exceed $250.00. 11. This court makes a specific finding that the defendant has the ability to pay the amounts required herein. The defendant is able bodied and capable of earning sufficient income to pay such amounts.

Done in open Court this 4th day of June, 1998.

DATED this 17th day of June, 1998.

On June 4,1998, 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 attorney Rachel Wright. The state was represented by Fergus County Attorney Thomas P. Meissner.

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. 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.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

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

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton

The Sentence Review Board wishes to thank attorney Rachel Wright for representing Danny M. Dahlin in this matter and also Fergus County Attorney Thomas P. Meissner for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Victor A. Harris, Defendant.
    NO. CDC 97-336
    DECISION

      Done in open Court this 4th day of June, 1998.
    DATED this 17th day of June, 1998.
   On March 5,1998, it was ordered that for the offense of Partner or Family Member Assault, a Felony, the defendant is sentenced to Partner or Family Member Assault, a felony, the defendant is sentenced to Montana State Prison for five (5) years. The defendant shall pay a fine of $500 and the mandatory surcharges of $25.00. Should defendant be granted parole, he shall abide by conditions as stated in the March 5,1998 judgment. The defendant is granted 97 days’ credit for time served prior to sentencing.

On June 4,1998, 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. 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, that he also understood his right to appointed counsel to represent him but waived that 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 amended so that the defendant is ineligible for parole or participation in a supervised release program for the entire five (5) year sentence.

The Sentence Review Board finds that the defendant lacks any remorse for his offense, that his previous record reveals that he was once imprisoned for stabbing a victim, that he is violent and a danger to society, and that the sentence given is clearly inadequate. The modification of the sentence is being imposed for the protection of society.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton

The Sentence Review Board wishes to thank Victor A. Harris for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Gary W. Hughes, Jr., Defendant.
    NO. DC 96-202
    DECISION
   On January 24,1997, it was the judgment of this court that the defendant be sentenced to term of incarceration at the Montana State Prison of forty (40) years. The defendant is to be ineligible for parole or any other type of release from Prison until he completes all phases of the sex offender, anger management, moral reconation, and chemical dependency treatment programs available at that facility, and follows all resulting recommendations to the satisfaction of his supervising officer and treatment providers. Of this period of incarceration, ten (10) years are suspended in order to assure a substantial period of supervised probation in the event that the defendant is not granted parole. The defendant must comply with conditions of parole and probation as stated in the January 24,1997 judgment. The defendant is to be given credit for one hundred fifty (150) days served in the Flathead County Detention Center pending final disposition in this matter. As required by Section 46-18-254, M.C. A., the defendant is hereby advised of his obligation to register as a sexual offender.

On June 4,1998, 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 attorney Michael Keedy. The State was not represented in person although Ed Corrigan, Deputy County Attorney, sent a letter outlining the State’s views on the matter.

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. 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.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

Done in open Court this 4th day of June, 1998.

DATED this 17th day of June, 1998.

After careful consideration, there is a split decision of the Sentence Review Board. The Honorable Wm. Neis Swandal and Honorable Jeff Langton vote to affirm the sentence.

Chairman, Hon. Wm. Neis Swandal and Member, Hon. Jeff Langton.

The Honorable Richard Phillips votes to give the sentence that was recommended in the Pre-Sentence Investigation which was 30 years with 10 years suspended. The recommendation from the psychosexual evaluator did not specify a particular prison term but the Pre Sentence Investigation recommended specifically 30 years with 10 suspended, and the undersigned deems the agreement with the specific recommendation binding upon the court.

Member, Hon. Richard Phillips.

The Sentence Review Board wishes to thank attorney Michael Keedy for representing Gary Hughes in this matter and also Ed Corrigan, Deputy County Attorney, for the State’s letter.


text:
    STATE OF MONTANA, Plaintiff, vs. Anthony S. Vogel, Defendant.
    NO. CDC 88-174
    DECISION
   On November 4,1988, it was ordered that the defendant, Anthony S. Vogel, is sentenced to serve on Count I: Attempt (Deliberate Homicide), a Felony, One Hundred Years (100) in the Montana State Prison, at Deer Lodge, Montana. Because a dangerous weapon was used in the commission of the crimes, and pursuant to Section 46-18-221 MCA., the defendant is sentenced to an additional ten (10) years, which, ten years shall run consecutively to the 100 year sentence. It is also ordered that the defendant serve forty (40) years in the Montana State Prison at Deer Lodge, Montana for the offense of Count II: Robbery, a Felony. All Sentences are to run consecutively, which means the Court intends a total Sentence herein of 150 years in the Montana State Prison. The defendant is entitled to credit for the time he has been incarcerated in connection with the present offenses, which is 88 days through today’s date, November 3,1988. The Court recommends to the Warden of the Montana State Prison that any aváilable alcohol counseling, drug counseling, and mental health counseling which may be available to inmates, be made available to this defendant while he is serving this sentence. It is further ordered that pursuant to Section 46-18-236 MCA, the mandatory statutory surcharge of $20.00 is hereby assessed against this defendant. Said surcharge is to be paid to the Clerk of District Court, Cascade County Courthouse, Great Falls, Montana, as soon as possible.

Done in open Court this 4th day of June, 1998.

DATED this 17th day of June, 1998.

On June 4,1998, 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 attorney Ed Sheehy. The state was represented by Cascade County Attorney Brant Light.

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. 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.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

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

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank attorney Ed Sheehy for representing Anthony Vogel in this matter and also Brant Light, Cascade County Attorney, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Travis D. Widdicombe, Defendant.
    NO. DC 97-7
    DECISION
   On December 3, 1997, it was the sentence and judgment of this court as follows: 1. For the offense of Deliberate Homicide for the killing of Cecil Smith, the defendant shall be sentenced to the custody of the Department of Public Health and Human Services for a period of sixty (60) years from December 1,1997.2. For the offense of Deliberate Homicide for the killing of Barry Smith, the defendant shall be sentenced to the custody of the Department of Public Health and Human Services for a period of sixty (60) years from December 1,1997.3. For the offense of Attempted Deliberate Homicide for the attempted killing of Nicole O’Neill, the defendant shall be sentenced to the custody of the Department of Public Health and Human Services for a period of twenty (20) years from December 1,1997.4. For the offense of Attempted Deliberate Homicide for the attempted killing of Devon Charles, the defendant shall be sentenced to the custody of the Department of Public Health and Human Services for a period of twenty (20) years from December 1,1997. 5. For the offense of Criminal Endangerment, the defendant shall be sentenced to the custody of the Department of Public Health and Human Services for a period often (10) years from December 1, 1997. 6. Since the defendant used a weapon in the commission of these offenses, he shall be sentenced to the custody of the Department of Public Health and Human Services for a period of ten (10) years from December 1,1997; such being pursuant to Section 46-18-221, Montana Code Annotated. 7. All of the time periods specified in paragraphs 1 through 6 shall run consecutively. 8. The Director of the Department of Public Health and Human Services shall have the discretion to place the defendant in an appropriate mental health or correctional facility. 9. As required by law, the defendant shall receive credit for time that he has been incarcerated in the Fergus County Jail. Such time commenced on February 9,1997. The defendant has continuously been incarcerated since such time. 10. Should the defendant ever be released on parole, he shall abide by all rules and regulations of his parole, and by terms and conditions as stated in the December 3,1997 judgment.

On June 4,1998, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

Done in open Court this 4th day of June, 1998.

DATED this 17th day of June, 1998.

The defendant was present and was represented by attorney Torger Oaas. The state was represented by Fergus County Attorney Thomas P. Meissner.

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. 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.

Rule 17 of the Rules of the Sentence Review Division provides: “The sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

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

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips and Member, Hon. Jeff Langton.

The Sentence Review Board wishes to thank attorney Torger Oaas for representing Travis D. Widdicombe in this matter and also Fergus County Attorney Thomas P. Meissner for representing the State.