text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. John David Gardenier, Defendant.
    NO. 11068 DECISION
   On September 27, 1994, the defendant was sentenced to a term of twenty (20) years in the Montana State Prison for the offense of Count I: Sexual Assault, a Felony. Said sentence shall run consecutively to the sentence imposed in Dawson County. Prior to becoming eligible for parole, the defendant must enter and complete the sex offender and anger management programs at the Montana State Prison. If the defendant is placed on the high side of prison, he should be allowed to be transported to and from counseling. It is the recommendation of the court that as a condition of any parole or probation, the defendant shall continue out-patient sex offender therapy and the defendant shall be monitored. If any difficulties arise in controlling his sexual deviate behavior, the defendant shall be placed on house arrest and medications administered, namely: Depopavera, or his parole or probation shall be revoked. It is further ordered that the defendant shall register as a sexual offender, pursuant to Section 46-23-504 and 46-23-505, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for a period of ten (10) years following his release from custody. The defendant shall further notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if he should change his address during this ten (10) year period. Defendant shall be designated a dangerous offender for the purposes of parole. Defendant shall receive credit for time served at Missoula County Jail from March 28, 1994, through date of sentencing, September 27,1994, in the amount of one hundred eighty-four (184) days.

On May 12, 1995, 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.

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

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

DATED this 23rd day of May, 1995.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank John Gardenier for representing himself in this matter.


source: Caselaw Access Project

license: Public Domain

text:
    FROM: The District Court of the 4th Judicial District. County of Mineral.
    STATE OF MONTANA Plaintiff, vs. Douglas Paul Grand, Defendant.
    NO. C-642 DECISION
    DATED this 23rd day of May, 1995.
   On January 26, 1995, it was ordered that Douglas Paul Grand be committed to the Montana State Prison for a term of five (5) years for the offense of Domestic Abuse, a Felony. He is given credit for 101 days served on this charge in the Mineral County Jail and is designated as a "Dangerous Offender" for purposes of parole eligibility. It is further ordered that prior to the time he shall be eligible for parole consideration, the defendant shall enter and successfully complete any alcohol treatment program or anger management program deemed appropriate for him by prison staff. As further conditions of the defendant’s release from prison prior to discharge of his sentence, the conditions as set forth in the January 26, 1995 judgment are hereby imposed.

On May 12, 1995, 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 Kelly Larson, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

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

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

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


text:
    FROM: The District Court of the 4th Judicial District. County of Mineral.
    STATE OF MONTANA, Plaintiff, vs. Douglas Paul Grand, Defendant.
    NO. C-651 DECISION
    DATED this 23rd day of May, 1995.
   On January 26, 1995, it was ordered that Douglas Paul Grand be and he is by this Order hereby committed to the Montana State Prison for a term of ten (10) years. He is given credit for 23 days served on this charge in the Mineral County jail and designated as a "Dangerous Offender" for purposes of parole eligibility. The sentence imposed by this judgment is hereby ordered to run concurrent with the five (5) year prison term imposed by the Court this same date upon this same defendant in Mineral County Criminal Cause No. C-642. It is further ordered that before he is deemed eligible for parole, the defendant shall enter and successfully complete the prison programs for chemical dependency and anger management provided that the same are recommended for him by prison staff. It is further ordered that any release of the defendant prior to discharge of this sentence shall be subject to terms and conditions as stated in the January 26, 1995 judgment.

On May 12, 1995, 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 Kelly Larson, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence be amended to read as follows: The defendant shall be sentenced to serve two (2) years in the Montana State Prison for the offense of Felony Escape. The said sentence shall run consecutive to the sentence imposed for Cause No. C-642, Domestic Abuse. The dangerous designation for the offense of Felony Escape shall be dismissed.

The reasons for the amendment are: 1. The record indicates that the charges on the Domestic Abuse case are warranted for the dangerous designation but not warranted for the Escape offense. There being no record of dangerous activity during the escape or surrounding the escape. 2. The amendment for the Escape offense is to make it more consistent with sentences of like crimes.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

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


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.

      STATE OF MONTANA, Plaintiff, vs. Anna Lee Keen, Defendant.
    NO. 9460 DECISION
    DATED this 23rd day of May, 1995.
   On February 1, 1995, the Court found the defendant in violation of the conditions of her suspended sentence and it is the judgment of the court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and she is hereby sentenced to a term of ten (10) years in the Women’s Correctional Facility. Said sentence shall run consecutively with the sentence imposed in Lake County, Cause No. DC 94-91. Due to the defendant’s failure to comply with the terms and conditions of her suspended 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 June 19, 1991, through July 18, 1991; and from January 25, 1995, through February 1, 1995, for thirty-eight (38) days jail time which she has previously served.

On May 12, 1995, 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 remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Anna Lee Keen for representing herself in this matter.


text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.
    STATE OF MONTANA, Plaintiff, vs. Robert Lee Mobley, III, Defendant.
    NO. DC 94-219 DECISION
   On February 3, 1995, the Court found the defendant guilty of Count I: Criminal Endangerment, a Felony; Count 2: Theft, a Felony; Count 3: Theft, a Felony; Count 4: Criminal Endangerment, a Felony and Count 5: Robbery, a Felony. Under Count 5 the defendant shall serve a period of twenty (20) years at the Montana State Prison. Ten (10) years are suspended on the conditions as stated in the February 3,1995 judgment. Under Count 1 the defendant shall serve a period of ten (10) years at the Montana State Prison. All of this sentence is suspended on conditions as set forth in the February 3, 1995 judgment. Under Count 2 the defendant shall serve a period of ten (10) years at the Montana State Prison. All of this sentence is suspended on the conditions as set forth in the February 3, 1995 judgment. Under Count 4 the defendant shall serve a period of ten (10) years at the Montana State Prison. All of this sentence is suspended on the conditions as set forth in the February 3, 1995 judgment. Under Count 3 the defendant shall serve a period often (10) years at the Montana State Prison. Five years of this sentence are suspended on conditions as set forth in the February 3, 1995 judgment. The sentences for Counts 1,2,4 and 5 shall be served concurrently because all of those crimes were part of a single criminal transaction in which the defendant threw Stacy LeMaster out of her car, stole the car, and drove it so as to endanger numerous members of the public and law enforcement officers. The sentence for Count 3 shall be served run consecutively to the other four sentences because it involved the theft of Sharon Rahn’s pickup from the State of Georgia. The defendant shall receive credit for 86 days previously served at the Gallatin County Detention Center as of January 31,1995, and shall receive credit for such additional days that the defendant shall serve at the Gallatin County Detention Center after January 31, 1995, until his transportation to the Montana State Prison by the Gallatin County Sheriff.

DATED this 23rd day of May, 1995.

On May 12, 1995, 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 Gary Balaz, Deputy County Attorney from Bozeman.

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.

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

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Robert Mobley for representing himself in this matter and also to Gary Balaz, Deputy County Attorney from Bozeman for representing the State.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.

      STATE OF MONTANA, Plaintiff, vs. David Allan Nelson, Defendant.
    NO. BDC 91-106 DECISION
    DATED this 23rd day of May, 1995.
   On February 16, 1995, the Court ordered that the defendant is sentenced for the charge of Count I: Burglary, a Felony to ten (10) years in the Montana Department of Corrections, with five (5) of those years suspended, with the recommendations that the defendant be considered for the Swan River Boot Camp program. The portion of the sentence which is suspended is suspended on conditions as stated in the February 16, 1995 judgment. It is hereby ordered that the defendant is sentenced for charge of Count II: Theft, a Felony, to ten (10) years with the Montana Department of corrections, with five (5) of those years suspended, subject to the same conditions imposed relative to Count I, with the recommendations that the defendant be considered for the Swan River Boot Camp program. The sentence imposed for Count II: Theft, a Felony will run concurrently with the sentence imposed for Count I: Burglary.

On May 12, 1995, 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.

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

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct. The Sentence Review Division believes that the sentencing judge did consider other sentences.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank David Allan Nelson for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Vance Leon Pope, Defendant.
    NO. 10940 & 10941 DECISION
   On July 12, 1994, the defendant was sentenced to a term of thirty (30) years on Count I: Sexual Intercourse Without Consent, a Felony, and to a term of ten (10) years on Count II: Kidnapping, a Felony, to be served in the Montana State Prison. That, however, Defendant’s sentence on Count II is hereby suspended on terms and conditions as stated in the July 12, 1994 judgment. Said sentences shall run consecutively with each other. It is the recommendation of the Court that the defendant complete the sexual offender program at the Montana State Prison prior to becoming eligible for parole. Pursuant to 46-18-202(e), M.C.A., the Court imposes as a condition of any parole or early release that the defendant shall be required to pay a fee through the Clerk of the District Court in the amount of Forty dollars ($40.00) ($20.00 on each count) to go to the County Attorney Surcharge Fund as provided in Section 46-18-236, M.C.A.; that the Defendant shall pay the cost of prosecution in the amount of One Thousand Six Hundred Thirty-five Dollars ($1,635.00); that the defendant shall reimburse Missoula County for the cost of the Defendant’s Court appointed attorney in the amount of Three Thousand Two Hundred Thirteen Dollars ($3,213.00); that the defendant shall pay restitution to the victims for any costs of treatment that they may incur; and that the defendant shall pay the cost of incarceration in the amount of Eight Thousand Five Hundred Eighty-eight Dollars ($8,588.00) (The Defendant may perform community service for one-half of the cost of the incarceration.) The defendant shall pay the financial obligations on a schedule which the defendant shall devise with the Probation Officer as soon as possible after the defendant is released, if the defendant is released. It is further ordered that the defendant shall register as a sexual offender, pursuant to Section 46-23-504 and 46-23-505, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for a period of ten (10) years following his release from custody. The defendant shall further notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if he should change his address during this ten (10) year period. Defendant shall be designated a dangerous offender for the purposes of parole. Defendant shall receive credit for time served at Missoula County Jail from November 29,1993, through July 12,1994, in the amount of two hundred twenty-six (226) days.

DATED this 23rd day of May, 1995.

On May 12, 1995, 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 David Stenerson, attorney from Missoula. 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.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence is hereby amended to read as follows:

1. The defendant shall be committed on Count I, Sexual Intercouse Without Consent, a Felony to the Montana State Prison for a period of twenty (20) years and is designated a dangerous offender.

2. The defendant shall be committed on Count II, Kidnapping, a Felony, to the Montana State Prison for a period of ten (10) years, all of which is suspended.

3. Counts I and II shall run consecutive.

The reasons for the amended judgment are: 1. To give consistency in sentencing and to make it more in line with sentences of similar nature. 2. The amendment will more closely follow the recommendations of the Pre-Sentence Investigation.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank David Stenerson, attorney from Missoula for his assistance to the defendant and to this Court.


author: JUSTICE ERDMANN

text:
    RICHARD D. AUSTIN and VIRGINIA P. AUSTIN, husband and wife, Plaintiffs and Respondents, v. MARTHA KONOPACKI CASH and JOHN MICHAEL KONOPACKI, Defendants and Appellants, and BRUCE A. YOUNG, Defendant, and LOREN “GEORGE” EVERETT and ROSS HAFFNER, d/b/a WESTERN BROKERS, Third-Party Defendants.
    No. 95-186.
    Submitted on Briefs October 19, 1995.
    Rehearing Denied December 14, 1995.
    Decided November 14, 1995.
    52 St.Rep. 1119.
    906 P.2d 669.
    274 Mont. 54.

      For Appellant: Jeffrey D. Ellingson, Ellingson Law Offices, Kalispell.
    For Respondent: Alan J. Lerner, Attorney at Law, Kalispell (for Austins); James E, Vidal, Murray & Kaufman, Kalispell (for Young); Mark L, Stermitz, Warden, Christiansen, Johnson & Berg, Kalispell (for Everett and Haffner).
   JUSTICE ERDMANN

delivered the Opinion of the Court.

This is an appeal from the Eleventh Judicial District Court, Flathead County, which found an enforceable real estate contract between the parties, ordered specific performance, and awarded damages and attorney fees. We affirm in part and reverse in part.

We restate the issues on appeal:

1. Did the District Court err in concluding that a valid and enforceable contract existed between the Austins and Cash/ Konopacki?

2. Did the District Court err in dismissing Cash/Konopacki’s slander of title claim against the Austins?

3. Did the District Court err in dismissing Cash/Konopacki’s counterclaim against Everett?

4. Did the District Court err in awarding costs and attorney fees to the Austins?

FACTS

Martha Cash and John Konopacki are brother and sister who jointly owned approximately 19.5 acres in Flathead County. One acre was to the east of Highway 93, and 18.5 acres were to the west. Cash and Konopacki listed the properties for sale in separate listing agreements with Bruce Young of ReMax Realty in August and September 1992. Young entered the two listings into the multiple listing service. Cash had authority from Konopacki to negotiate and sign on his behalf, although she did not have a formal power of attorney.

Richard and Virginia Austin were looking for real estate to purchase in Flathead County. In October 1992, Mr. Austin contacted George Everett, a real estate agent in Kalispell, about securing property for a retirement home. The Austins owned two properties in California which were the subject of purchase agreements and were awaiting closing. Everett showed Mr. Austin the parcel owned by Cash and Konopacki. Relying on the multiple listing service listing and information received from Young, Everett thought there was only one parcel of land which contained the entire 19.5 acres. Although both Cash and Konopacki had signed the initial listing contracts, this was not known to Everett and he represented to the Austins that the sole owner of the property was Cash.

On November 6, 1992, Mr. Austin signed an offer prepared by Everett to purchase the entire 19.5 acres for $100,000 with $50,000 down and $50,000 payable on a note. The offer was also contingent on the closing of the Austins’ California properties and required the sellers to cooperate in any land subdivision that may be required to execute a § 1031 tax deferred exchange.

Everett presented the offer to Young, who faxed it to Cash. On November 12, 1992, Cash signed a counteroffer and sent it to Young, who delivered it to Everett. The counteroffer clarified that the offer was only for the 18.5 acre parcel, that the price was $110,000, and that the sellers would not cooperate in subdividing the property for a § 1031 tax deferred exchange. Everett testified that he faxed the sellers’ counteroffer to Mr. Austin at his California office. Even though Austin testified that he did not remember receiving the fax, telephone records indicate that the counteroffer was faxed to him and that he then immediately called Everett.

Austin rejected the counteroffer and asked Everett to negotiate with the sellers for the purchase of all of the property. Everett went to Young’s office where they called Cash on a speaker telephone. According to Cash and Young, Cash said she would consider the additional acre for an additional $5,000 from the Austins, but that she would first have to discuss it with her brother. According to Everett, Cash told him that she would add the additional property to the sellers’ counteroffer for $5,000.

Everett then took the sellers’ counteroffer which had been previously signed by Cash and added a handwritten paragraph including the additional acre for $5,000. Without obtaining Cash’s signature or initials indicating the sellers’ assent to the handwritten paragraph, Everett faxed the revised counteroffer to the Austins on November 17, 1992. Everett testified that he knew that both Cash and the Austins needed to sign or initial the revised counteroffer because it had been changed to include terms regarding the additional acre. Everett also testified that in a telephone conversation on November 17, 1992, he told Mr. Austin that he (Everett) had added the handwritten language pertaining to the purchase of the additional acre, although this is disputed by Austin.

Austin testified that when he received the revised counteroffer, he believed it had been signed by Cash. On the evening of November 17, 1992, the Austins signed the revised counteroffer and faxed it back to Everett on November 18,1992. The Austins testified that in relying on their belief there was a binding contract, they reduced the price of one of their California properties by $45,000 — a move they would not have made without a binding agreement to purchase the Montana property. Everett testified that upon receiving the revised counteroffer signed by the Austins, he faxed the document to Young intending to convey a counteroffer from the Austins back to Cash for her signature.

On November 18, 1992, Cash received an inquiry from Karen Nagelhus about purchasing the property. Nagelhus was referred to Young and ultimately made an offer on November 20, 1992, to purchase the property for $117,500. On November 19, 1992, Mr. Austin called Everett to see whether or not “we had a deal.” The same day Everett faxed Austin a letter stating that the seller had not responded and that another offer was coming in. Young also advised Austin on November 19, 1992, that Cash had received another offer and that Austin had the right to change his offer, but that Cash did not intend to accept his counteroffer. On November 20,1992, Everett wrote a letter to Young on behalf of the Austins, asserting that there was a binding contract between Cash and the Austins for the land lying west of Highway 93. On November 21, 1992, Cash and Konopacki accepted the Nagelhus offer.

On December 30, 1992, the Austins’ attorney filed a lis pendens on the property. As a result of the lis pendens, the sellers were unable to give marketable title to Nagelhus and the sale did not close. Nagelhus entered into a “Closing Date Extension” agreement which extends the date of closing until 30 days after resolution of this litigation.

On January 26, 1993, the Austins brought an action seeking specific performance of the revised counteroffer which they claimed was a binding contract between themselves and the sellers. Cash and Konopacki counterclaimed for slander of title arising out of the lis pendens filed by the Austins. Cash, Konopacki, and Young brought a third-party complaint against Everett. A trial was held before the District Court without a jury. The District Court entered judgment for the Austins ordering specific performance of the contract and awarding to the Austins $7,500 in damages, together with attorney fees and costs. All other claims were dismissed. Cash and Konopacki appeal from the judgment, and the Austins have filed notice of a conditional cross-appeal.

STANDARD OF REVIEW

Whether or not a contract exists is a combined issue of fact and law. Our review of a district court’s finding of fact is set forth in Y A Bar Livestock Company v. Harkness (1994), 269 Mont. 239, 887 P.2d 1211, as follows:

This Court reviews the findings of a trial court sitting without a jury to determine if the court’s findings are clearly erroneous. Rule 52(a), M.R.Civ.P. A district court’s findings are clearly erroneous if they are not supported by substantial credible evidence, if the trial court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed.

Y A Bar Livestock, 887 P.2d at 1213 (citing Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287). We have defined substantial evidence to mean “more than a scintilla, but ... less than a preponderance, of evidence.” State v. Shodair (1995), [273 Mont. 155], 902 P.2d 21, 26 (citing Miller v. Frasure (1991), 248 Mont. 132, 137, 809 P.2d 1257, 1261).

We review a district court’s conclusion of law to determine if the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), [271 Mont. 459], 898 P.2d 680, 686.

ISSUE 1

Did the District Court err in concluding that a valid and enforceable contract existed between the Austins and Cash/ Konopacki?

Cash/Konopacki argue that the District Court’s findings of fact are clearly erroneous and that its conclusion of law establishing the existence of a contract is incorrect. Cash/Konopacki claim there is no contract between the parties as a matter of law because the statute of frauds is not satisfied. They urge this Court to reverse the District Court’s conclusion that the Austins were entitled to specific performance of the contract.

Cash/Konopacki argue that Everett significantly altered the language of the sellers’ counteroffer by adding his own handwritten language changing the price, property and terms outlined in the original document. They argue that because these changes were made after Cash had signed the original counteroffer and because they were made without being authorized by Cash/Konopacki or subscribed or initialled by Cash/Konopacki, Young, or Everett, a valid contract does not exist.

The Austins urge us to affirm the District Court’s conclusion that a valid contract exists between the parties and that specific performance ordered by the District Court should be affirmed. The Austins allege that Everett had authority to bind Cash/Konopacki to the revised counteroffer. The Austins further argue that due to their part performance and acts made in reliance on the alleged contract, the contract is taken out of the statute of frauds.

In transactions involving real property, consent of the parties must be in writing. Contracts for the sale of real property in this State must satisfy the statute of frauds which is codified as follows:

28-2-903. What contracts must be in writing. (1) The following agreements are invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party to be charged or his agent:

(d) an agreement for the leasing for a longer period than 1 year or for the sale of real property or of an interest therein. Such agreement, if made by an agent of the party sought to be charged, is invalid unless the authority of the agent is in writing and subscribed by the party sought to be charged.

30-11-111. Contract for sale of real property. No agreement for the sale of real property or of any interest therein is valid unless the same, or some note or memorandum thereof, be in writing and subscribed by the party to be charged or his agent thereunto authorized in writing; but this does not abridge the power of any court to compel the specific performance of any agreement for the sale of real property in case of part performance thereof.

In its findings of fact, the District Court determined that:

All of the exhibits, taken together, constitute a sufficient memorandum, signed by all parties to be charged, to satisfy the statute of frauds for all parcels of real property involved in this case. The documents, taken together, establish a meeting of the minds and a mutually binding contract for the sale of all parcels of real property involved in this case under the terms and conditions of Agreed Exhibit 6.

“Agreed Exhibit 6” is the sellers’ revised counteroffer signed by the Austins. This finding of fact, in concluding that the documents taken together satisfy the statute of frauds, is actually a conclusion of law. We conclude that the District Court’s interpretation of the law is incorrect.

The uncontroverted facts presented in the record indicate that the revised counteroffer from Cash/Konopacki to the Austins included Everett’s handwritten addition to the sellers’ original counteroffer and was not “subscribed” by Cash, Konopacki, Young, or Everett. Everett testified that he knew that both the buyer and seller would have to sign or initial the revised counteroffer indicating each parties’ assent to his handwritten additions to the original document. Since neither Cash, Konopacki, Young, or Everett signed or initialled the additional handwritten language on behalf of the sellers, the contract was not properly “subscribed” by the sellers or their agents and therefore does not satisfy the statute of frauds.

The Austins argue that the alleged contract should be taken out of the statute of frauds because of their part performance of the alleged agreement with Cash/Konopacki. The original counteroffer from Cash/Konopacki included a provision that the offer was conditioned on the sellers approving the Austins’ sales contracts on their California properties. The Austins argue they partially performed the alleged contract with Cash/Konopacki by reducing the sales price on their California home by $45,000 in an effort to satisfy this condition.

The sufficiency of acts to constitute part performance can be decided as a matter of law. Schwedes v. Romain and Mudgett (1978), 179 Mont. 466, 472, 587 P.2d 388, 391 (citing Boesiger v. Freer (Idaho 1963), 381 P.2d 802). We have held that “[c]laimed acts of partial performance sufficient to take an otherwise unenforceable contract out of the statute of frauds must be unequivocally referable to that contract.” Schwedes, 587 P.2d at 391 (citing Throndson v. Commissioner of Internal Revenue (9th Cir. 1972), 457 F.2d 1022). Acts undertaken by a party in contemplation of eventual performance are to be distinguished from acts which truly constitute part performance of the contract so as to take it out of the operation of the statute of frauds. Schwedes, 587 P.2d at 391. The Austins’reduction of the price of their California home by $45,000 was an act in contemplation of eventual performance and one that is not unequivocally referable to the alleged contract with Cash/Konopacki.

The Austins argue that the District Court properly ordered specific performance of the contract. This Court will not grant the remedy of specific performance in connection with a purported agreement for the sale of land unless it is first established that there is a valid contract in existence. Thornton v. Songstad (1994), 263 Mont. 390, 393, 868 P.2d 633, 635. In Schwedes, 587 P.2d at 391, we cited with approval the following general rule:

In order for equity to decree specific performance, it is necessary that there be in existence and in effect a contract valid at law and binding upon the parties against whom performance is sought, for specific performance is never applicable where there is no obligation to perform.

The Austins go on to argue that Cash/Konopacki are equitably estopped from denying an enforceable contract between the parties. Their argument centers around (1) the fact that they were unaware that Konopacki was a co-owner of the Cash/Konopacki property, and (2) that they relied to their detriment on a binding agreement to purchase the Montana property. First, the parties stipulated on the record that Cash had authority to sign for and bind Konopacki. Therefore, the fact that the Austins were unaware of Konopacki’s interest in the property becomes moot. Second, we have stated that where a case is clearly within the statute of frauds, promissory estoppel is inapplicable, for the net effect would be to repeal the statute completely. The court cited [a] general rule that the moral wrong of refusing to be bound by an agreement because it does not comply with the statute of frauds, does not of itself authorize the application of the doctrine of estoppel, because the breach of a promise which the law does not regard as binding is not a fraud.

Schwedes, 587 P.2d at 392 (quoting 56 A.L.R.3d at 1054, regarding Sinclair v. Sullivan Chevrolet Co. (Ill. 1964), 195 N.E.2d 250).

We conclude that because Cash/Konopacki or their agents did not give written approval to Everett’s handwritten changes to the sellers’ counteroffer, the contract was not “subscribed” by the party sought to be charged. The purported contract between the parties does not comply with the statute of frauds and is therefore not enforceable. Further, the facts of this case do not merit the application of the equitable doctrines of part performance and/or equitable estoppel. Therefore, we hold that the District Court erred in determining that a valid contract warranting specific performance existed and we reverse the District Court on this issue.

ISSUE 2

Did the District Court err in dismissing Cash/Konopacki’s slander of title claim against the Austins?

Since Cash/Konopacki and Nagelhus have entered into a “Closing Date Extension Agreement,” whereby the parties have agreed to extend the date of closing until 30 days after resolution of this lawsuit, we conclude that Cash/Konopacki will not be harmed as a result of the Austins filing a lis pendens on the property. We hold that the District Court properly dismissed Cash/Konopacki’s claim for slander of title and we affirm the District Court on this issue.

ISSUE 3

Did the District Court err in dismissing Cash/Konopacki’s counterclaim against Everett?

Since we held that a valid and enforceable contract did not exist between the Austins and Cash/Konopacki, the counterclaim brought by Cash/Konopacki against Everett becomes moot. We therefore hold that the District Court did not err in dismissing this claim and we affirm the District Court on this issue.

ISSUE 4

Did the District Court err in awarding costs and attorney fees to the Austins?

Based on our holdings above, we conclude that neither party shall be awarded costs and attorney fees. There is no agreement stipulating such relief and no statute confers such a right in this case. We hold that the District Court erred in awarding costs and attorney fees to the Austins and we reverse the District Court on this issue.

The Austins are free to pursue any and all tort damage claims as allowed by law, however, this Court renders no opinion as to the merits of those claims.

JUSTICES GRAY, TRIEWEILER, NELSON and LEAPHART concur.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Raymond Joseph Schneider, Defendant.
    NO. DC 94-047(B) DECISION
    DATED this 23rd day of May, 1995.
   On September 16, 1994, the defendant was sentenced to serve a term of ten (10) years at the Montana State Prison for the offense of Criminal Endangerment, a Felony; Twenty (20) years at the Montana State Prison for the offense of Burglary, a Felony and five (5) years at the Montana State Prison for the offense of Criminal Possession of Dangerous Drugs, a Felony. These sentences are to be served concurrently for a total period of incarceration at the Montana State Prison of twenty (20) years. The judgment imposed in this matter is to be served consecutively to that imposed in Cause Nos. DC 86-016(B) and DC 86-017(B). The defendant shall be given credit for nine (9) days for time served in pre-sentence incarceration. Should the defendant be allowed parole, it is also this Court’s recommendations, without objection by the defendant, through his attorney, Stephen J. Nardi, that he be required to pay restitution to his victims in this matter as a condition of his supervised release from prison: Bernie Dupuis, $250.00 Canadian Funds: The Wellington Insurance Company, #PA2658931, Dupuis, $3,109.24 Canadian Funds: George Risi, $1,000.00; and the USAA Insurance Company, Colorado Springs, $2,500.00. Payments are to be made through the Flathead County Attorney’s Office, P.O. Box 1516, Kalispell, MT 59903, according to a schedule developed by his parole officer.

On May 12, 1995, 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.

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

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Raymond Schneider for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial County of Missoula. District.
    STATE OF MONTANA, Plaintiff, vs. Larry Monroe Scroggins, Defendant.
    NO. 11227 DECISION
    DATED this 23rd day of May, 1995.
   On August 24, 1994, the defendant was sentenced to a term of ten (10) years in the Montana State Prison for the offense of Theft, a Felony. Said sentence shall run concurrently with the sentence imposed in the State of Oregon. Pursuant to 46-18-202(e), M.C.A., the Court imposes as a condition of any parole or early release that the defendant shall be required to pay a fee through the Clerk of the District Court in the amount of Twenty Dollars ($20.00) to go to the County Attorney Surcharge Fund as provided in Section 46-18-236, M.C.A.; that the defendant shall pay the cost of prosecution in the amount of One Hundred dollars ($100.00); that the defendant shall reimburse Missoula County for the cost of the defendant’s court appointed attorney in the amount of Thirty-Five Dollars ($35.00); and the defendant shall pay a fine to go to the community service program in the amount of Eighty-five dollars ($85.00). The defendant shall pay the financial obligations on a schedule which the defendant shall devise with the parole officer as soon as possible after the defendant is released, if the defendant is released. Defendant shall be designated a non-dangerous offender for the purposes of parole. Defendant shall receive credit for time served at Missoula County Jail from July 17, 1994, through date of sentencing, August 24, 1994, in the amount of thirty-nine (39) days.

On May 12, 1995, 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.

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

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Larry Scroggins for representing himself in this matter.


text:
    FROM: The District Court of the 10th Judicial District. County of Fergus.

      STATE OF MONTANA, Plaintiff, vs. Barbara Strobel, Defendant.
    NO. DC 93-24 DECISION
    DATED this 22rd day of May, 1995.
   On April 6, 1994, the defendant was committed to the Women’s State Prison for a term of ten (10) years for the offense of Theft, a Felony. The defendant, for parole purposes, is designated a non-dangerous offender. Should the defendant be released from the prison and placed on parole, she shall be obligated to abide by the conditions as stated in the April 6, 1994 judgment.

On May 12, 1995, 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 is hereby amended to read as follows: The defendant shall be committed to the Department of Corrections for a period often (10) years. In regards to probation or parole, the defendant shall adhere to the conditions as imposed by Judge Rapkoch on the April 6,1994 judgment.

The reasons for the amendment are: 1. Considering the crime committed, the defendant’s records and the entire record of the case, the Sentence Review Division feels that a commitment to the Department of Corrections is appropriate so that the Department can place her in an institution that is most suited to her needs.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Barbara Strobel for representing herself in this matter.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Lori Van Marter, Defendant.
    NO. DC 94-146(B) DECISION
   On September 22, 1994, it was the judgment of the Court that the defendant serve a term of ten (10) years at the Montana State Prison. This period of incarceration is to be served consecutive to that imposed upon the defendant in Lake County Cause No. DC 94-53. The defendant is declared ineligible for parole. Anticipating that the Sentence Review Division of the Supreme Court may set aside her parole ineligibility, the Defendant is also designated a dangerous offender for purposes of parole eligibility. Should the defendant ultimately be allowed parole, it is recommended that she be required to pay $5,859.11 in restitution to her victims in this matter. The defendant is hereby given credit for fifty-eight (58) days served in the Flathead County Detention Center pending final disposition in this matter.

DATED this 23rd day of May, 1995.

On May 12, 1995, 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 remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to find that the sentence imposed is either inadequate or excessive as is required to overcome the presumption that the sentence is correct.

Done in open Court this 12th day of May, 1995.

Hon. John Warner, Chairman, Hon. Robert Boyd, Alternate Member, and Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Lori Van Marter for representing herself in this matter.


text:
    AUGUST 1995 CALENDAR
    FROM: The District Court of the 16th Judicial District. County of Custer.
    STATE OF MONTANA, Plaintiff, vs. Willie Ray Amende, Defendant.
    NO. 3584 & 3586 DECISION
    DATED this 17th day of August, 1995.
   On April 25, 1995, it was the judgment of the Court that the ten (10) year suspended sentence handed down to this defendant on December 21, 1993, be revoked, and it was ordered that the defendant, Willie Ray Amende, be committed to the Department of Corrections and Human Services to serve the balance of that sentence. It is the recommendation of the Court that defendant be placed in the Swan River Boot Camp program. For purposes of parole eligibility the defendant is designated a non-dangerous offender.

On August 4, 1995, 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.

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

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 August, 1995.

Hon. Ed McLean, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.


text:
    FROM: The District Court of the 21st Judicial District. County of Ravalli.

      STATE OF MONTANA, Plaintiff, vs. Alex Huntley Bailey, III, Defendant.
    NO. CR 95-21 DECISION
    DATED this 17th day of August, 1995.
   On May 10, 1995, it was the judgment of the Court that the defendant is guilty of the crime of Burglary and the defendant shall be imprisoned in the Montana State Prison for a period of twenty (20) years, with ten (10) of those years suspended subject to conditions as stated in the May 10, 1995 judgment. The defendant will pay a Felony Surcharge in the amount of $20.00; The defendant will repay the costs of the public defender in the amount of $655.50; The defendant will make all of the above payments to the Clerk of Court of Ravalli County on a schedule to be determined by the Probation Officer. The defendant is adjudged to be a non-dangerous offender for purposes of parole. The defendant shall receive credit for 66 days for jail time served prior to sentencing. The Court further directs that the defendant shall enter and successfully complete the Criminal Thinking Errors program and Anger Management Counseling program at the Montana State Prison, as a condition of parole consideration.

On August 4, 1995, 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.

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

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 August, 1995.

Hon. Ed McLean, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Alexander Bailey for representing himself in this matter.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Allen Jack Bearcub, Defendant.
    NO. BDC 90-156 DECISION
   On March 22, 1995, on Cause No. BDC 90-156, for the offense of Count I: Criminal Sale of Imitation Dangerous Drugs, a Felony, to the Department of Corrections for five (5) years and for the offense of Count II: Criminal Sale of Dangerous Drugs, a Felony, to the Department of Corrections for ten (10) years. All sentences imposed by this Order are to run concurrent with each other and defendant shall be given credit for time served in the Cascade County Detention Center. The Court recommends that this defendant be considered by the Department of Corrections for placement at the Great Falls Pre-Release Center, and if the defendant is not eligible for that program, that this defendant be considered for any other appropriate rehabilitative program. Once the defendant is released from confinement, he shall be subject to conditions as stated in the March 22, 1995 judgment. Defendant pay restitution in the sum of $812.00 through the Clerk of Court’s office at a minimum of $25.00 per month. Defendant pay the mandatory supervision fee of $120.00 for each year of supervision. Defendant pay the cost of supervising the payment of restitution by paying an amount equal to 10% of the amount of the restitution ordered, but not less than $5.00, or more than $250.00. Defendant pay the mandatory $20.00 Court surcharge for each felony offense for a total of $80.00.

DATED this 17th day of August, 1995.

On August 4, 1995, 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.

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

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 August, 1995.

Hon. Ed McLean, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Allen Jack Bearcub for representing himself in this matter.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Allen Jack Bearcub, Defendant.
    NO. BDC 88-080 DECISION
   On March 22, 1995, on Cause No. BDC 88-080, for the offense of Failure to Return Rented Property, a Felony, the defendant is sentenced to the Department of Corrections for a period often (10) years. All sentences imposed by this order are to run concurrent with each other and defendant shall be given credit for time served in the Cascade County Detention Center. The Court recommends that this defendant be considered by the Department of Corrections for placement at the Great Falls Pre-Release Center, and, if the defendant is not eligible for that program, that this defendant be considered for any other appropriate rehabilitative program. Once the defendant is released from confinement, he shall be subject to the conditions as stated in the March 22, 1995 judgment. Defendant shall pay restitution in the sum of $812.00 through the Clerk of Court’s office at a minimum of $25.00 per month. Defendant pay the mandatory supervision fee of $120.00 for each year of supervision. Defendant pay the cost of supervising the payment of restitution by paying an amountequal to 10% of the amount of the restitution ordered, but not less than $5.00, or more than $250.00. Defendant pay the mandatory $20.00 Court surcharge for each felony offense for a total of $80.00.

DATED this 17th day of August, 1995.

On August 4, 1995, 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.

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

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 August, 1995.

Hon. Ed McLean, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Allen Jack Bearcub for representing himself in this matter.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Sheryl Lynn Brock, Defendant.
    NO. ADC 90-053 DECISION
   On May 18, 1995, it was ordered that the defendant be sentenced for the crime of Count I: Theft, a Felony, to ten (10) years to the Department of Corrections; It is further ordered that the defendant be sentenced for the crime of Count II: Theft, a Felony, to ten (10) years to the Department of Corrections; It is further ordered that the defendant be sentenced for the crime of Count III: Theft, a Misdemeanor, to six (6) months in the Cascade County Detention Center; and it is further ordered that the defendant be sentenced for the crime of Count IV: Theft, a Felony, to ten (10) years to the Department of Corrections. All sentences are to run concurrently with conditions as set forth in the May 18, 1995 judgment.

On August 4, 1995, 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.

DATED this 17th day of August, 1995.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the defendant shall receive credit for four and one-half (41/2) years time while she was on probation.

The reason for the amendment is so the Department of Corrections may have the discretion in placing the defendant in a life skills center.

Done in open Court this 4th day of August, 1995.

Hon. Ed McLean, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Sheryl Lynn Brock for representing herself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Robert W. Davis, Defendant.
    NO. 11153 DECISION
    DATED this 17th day of August, 1995.
   On May 31, 1994, it was the judgment of the court that Robert W. Davis be sentenced to a term of ten (10) years in the Montana State Prison. Said sentence shall run concurrently with the defendant’s sentence imposed in the State of Oregon. Defendant shall be designated a dangerous offender for the purposes of parole. Defendant shall receive credit for time served at Missoula County Jail from May 20, 1994, through date of sentencing, May 31, 1994, in the amount of twelve (12) days.

On August 4, 1995, 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.

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

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 August, 1995.

Hon. Ed McLean, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Robert W. Davis for representing himself in this matter.


author: JUSTICE HUNT

text:
    LARRY LULOFF and JANET PERKINS-LULOFF, Plaintiffs and Respondents, v. DAVID BLACKBURN and VELMA BLACKBURN, Defendants, Third-party Plaintiffs and Appellants, v. ALEX MANWEILER and ROSIE MANWEILER, Third-party Defendants.
    No. 95-191.
    Submitted on Briefs August 17, 1995.
    Decided November 14, 1995.
    52 St.Rep. 1124.
    906 P.2d 189.
    274 Mont. 64.

      For Appellant: K.D. Peterson, Peterson and Schofield, Billings.

      For Respondent: Frank C. Crowley, Doney, Crowley & Shontz, Helena; Kent E. Young, Red Lodge.
   JUSTICE HUNT

delivered the Opinion of the Court.

In July 1992, respondents Larry Luloff and Janet Perkins-Luloff instituted proceedings in the Thirteenth Judicial District Court, Carbon County, seeking to reenter and to possess a certain parcel of land in the possession of appellants David and Velma Blackburn. The District Court granted the Luloffs’motion for summary judgment and the Blackburns appeal. Alex and Rosie Manweiler did not appeal that summary judgment.

We affirm.

Issue

The sole issue on appeal is whether the District Court erred in granting summary judgment in favor of respondents.

Facts

The land in dispute is an approximately six acre parcel which is part of a 600 acre ranch located near Boyd, Montana. The appellants moved to the parcel in 1985 and made various improvements to the land. Their residence was obvious and is undisputed. However, no written document exists which purports to grant to the appellants any interest whatsoever in the property in question.

In 1989, the respondents bought the 600 acre ranch from Alex and Rosie Manweiler (the Manweilers). At the time of the sale, the respondents were informed by the Manweilers as well as the realtors who handled the sale that the ranch did not include a specific six acre parcel. In the property description attached to the contract for deed, a 6.12 acre parcel denominated as “Tract B” was specifically excluded from the ranch.

Both the Manweilers and the realtors represented to the respondents that “Tract B”, the six acre parcel which was excluded from the ranch, was the same six acre parcel where the appellants resided. Since the Manweilers and the realtors told them the parcel occupied by the appellants was excluded from the ranch, the respondents assumed the six acre parcel occupied by the appellants was in fact “Tract B”, the six acre parcel excluded from the ranch by deed.

Therefore, the respondents knew the appellants were occupying the land. However, due to confusion regarding where “Tract B” was located, the respondents were unaware that they themselves owned the parcel occupied by the appellants.

One or two years later, the respondents discovered that “Tract B” was not the land occupied by the appellants, rather “Tract B” was a different parcel, owned by a party named Woods. “Tract B”, owned by Woods, is adjacent to, but entirely separate from, the land the appellants occupied.

In April and again in May of 1992, the respondents and the Manweilers served the appellants with eviction notices requiring them to vacate the property. Upon appellants’ refusal to vacate, the respondents filed this cause of action. Subsequently, the District Court granted the respondents’ motion for summary judgment, finding that no material facts were in dispute and that the respondents were entitled to judgment as a matter of law.

Standard of Review

Summary judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Vincelette v. Metropolitan Life Ins. Co. (1995), [273 Mont. 408], 903 P.2d 1374, 1375; Brown v. Demaree (1995), [272 Mont. 479], 901 P.2d 567, 568. This Court reviews a District Court’s grant of summary judgment using the same criteria employed by the District Court to make its ruling. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331; Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214.

The party moving for summary judgment has the burden of showing a complete absence of any genuine issue of material fact, as well as its entitlement to judgment as a matter of law. Vincelette, [273 Mont. 408], 903 P.2d at 1375; Toombs v. Getter Trucking, Inc. (1993), 256 Mont. 282, 284, 846 P.2d 265, 266. All reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing the summary judgment. First Security Bank v. Vander Pas (1991), 250 Mont. 148, 152, 818 P.2d 384, 386.

DISCUSSION

The sole issue on appeal is whether the District Court erred in granting summary judgment to the respondents. The appellants claim they orally contracted with the Manweilers for the sale of the disputed six acres in 1986, three years before the respondents purchased the ranch. The Manweilers deny the existence of any such contract. The appellants contend therefore that factual questions remain regarding whether they and the Manweilers had such an oral agreement. They further contend legal questions also remain regarding whether that agreement, should it be found to exist, may escape\ the statute of frauds. The appellants assert that summary judgment in favor of the respondents was erroneous in the face of these remaining questions.

Under the statute of frauds, any sale or transfer of real property (other than an estate at will or a lease for a term less than one year) must be in writing and signed by the grantor. Sections 28-2-903, 30-11-111, and 70-20-101, MCA. Generally, if a grant of real property does not comply with the statute of frauds, it is invalid. Isaak v. Smith (1993), 257 Mont. 176, 848 P.2d 1014; Quirin v. Weinberg (1992), 252 Mont. 386, 830 P.2d 537.

However, the appellants point out that a court has the power to compel the specific performance of one party to an oral contract for the sale of real property in the case of part-performance by the other party. Section 70-20-102, MCA; Hayes v. Hartelius (1985), 215 Mont. 391, 697 P.2d 1349. See also Nashan v. Nashan (N.M. App. 1995), 894 P.2d 402; Quirin, 830 P.2d 537. Therefore, although they concede no written contract exists, the appellants nevertheless claim they have fully performed their part of the oral contract and are entitled to compel specific performance from the Manweilers. On this basis, they argue that the earlier oral contract between them and the Manweilers should be given full force and effect and the appellants should be allowed to keep the land.

Contrary to the appellants’ assertions, however, the District Court did not rule on the existence or validity of an earlier contract between the Manweilers and the appellants. Instead, the court found the respondents’ claim to the land to be superior to any claim or right the appellants might have, because the respondents were subsequent good faith purchasers without notice.

Section 70-21-304, MCA, provides:

Every conveyance of real property, other that a lease for a term not exceeding 1 year, is void against any subsequent purchaser or encumbrancer, including an assignee of a mortgage, lease, or other conditional estate, of the same property or any part thereof in good faith and for a valuable consideration whose conveyance is first duly recorded.

The appellants do not dispute that the respondents paid valuable consideration for the land and recorded their deed first. As far as recording, the appellants admit they have never had any color of title to the property that they could even attempt to record. Nevertheless, the appellants claim the respondents cannot be considered bona fide subsequent purchasers because they did not buy the land in good faith.

It is well established in Montana that a bona fide purchaser is: one who at the time of his purchase advances a new consideration, surrenders some security, or does some other act which leaves him in a worse position if his purchase should be set aside, and purchases in the honest belief that his vendor had a right to sell, without notice, actual or constructive of any adverse rights, claims, interest, or equities of others in and to the property sold.

Foster v. Winstanley (1909), 39 Mont. 314, 316, 102 P. 574, 579 (citations omitted).

The appellants point out the respondents were told by the realtors and the Manweilers (the sellers) that the property occupied by the appellants was not part of the ranch. The respondents were also aware of the appellants’ obvious use and occupation of the six acre parcel. Therefore, the appellants claim the respondents had actual and constructive notice of the appellants’ “claim of ownership” of the land, and such actual notice means the respondents cannot be considered bona fide good faith purchasers.

The Blackburns have confused occupation with ownership. The respondents cannot be charged with actual or constructive notice of the appellants’ ownership of the land because the appellants do not have, and have never had, any rights to the land beyond those conveyed by mere occupancy.

There are two historically recognized ways to acquire unassailable fee title to (or ownership of) real property. See, generally, Lamme v. Dodson (1883), 4 Mont. 560, 2 P. 298. A person may acquire title by transfer or conveyance, such as a devise from a decedent’s estate, or a gift, or a common sale. However, if a person who claims a given piece of land has only a defective deed or title, or no deed or title at all, that person may still establish clear fee title through adverse possession.

If the party occupying another’s land cannot show adverse possession, the law presumes the occupancy to be permissive and subordinate to the legal title. Section 70-19-404, MCA, states:

In every action for the recovery of real property or the possession thereof, the person establishing a legal title to the property is presumed to have been possessed thereof within the time required by law, and the occupation of the property by any other person is deemed to have been under and in subordination to the legal title unless it appear that the property has been held and possessed adversely to such legal title for 5 years before the commencement of the action.

This presumption has been consistently applied in Montana for more than a hundred years. “The law deems every man to be in the legal seisin and possession of land to which he has a perfect and complete title. This seisin and possession is co-extensive with the right, and continues till [sic] he is ousted by an actual adverse possession.” Stephens v. Hurley (1977), 172 Mont. 269, 274, 563 P.2d 546, 549 (citation omitted). See also YA Livestock Co. v. Harkness (1994), 269 Mont. 239, 887 P.2d 1211; Holen v. Phelps (1957), 131 Mont. 146, 308 P.2d 624; Blackfoot Land Development Co. v. Burke (1921), 60 Mont. 544, 199 P. 685; Peters v. Stephens (1891), 11 Mont. 115, 27 P. 403.

Under the above presumption, possession which is not adverse can be overcome by any record owner who has acquired title to the land by conventional means. “Occupancy for any period confers a title sufficient against all except the state and those who have title by prescription, accession, transfer, will, or succession.” Section 70-19-406, MCA.

In this case, the respondents acquired title by a property transfer, including the transfer and registration of the deed. Under § 70-19-406, MCA, therefore, the appellants’ claim cannot stand against the respondents’ proven ownership.

The appellants do not have a legitimate claim to the land they occupy because they cannot show adverse possession. Adverse possession requires the payment of all taxes on the property in question for the prescribed period. Section 70-19-411, MCA; Lindey’s, Inc. v. Goodover (1994), 264 Mont. 489, 872 P.2d 767; Burlingame v. Marjerrison (1983), 204 Mont. 464, 665 P.2d 1136. The appellants admit they have never paid the taxes on the property they occupy, and therefore any claim by adverse possession must fail.

Under the admitted facts of this case, the appellants have no title to the land, other than that conveyed by mere occupancy, and no claim to it via adverse possession. Nevertheless, they asked the District Court to let them keep the land, because to allow their eviction after so many years would be unfair.

As explained above, however, the two recognized ways to acquire land are through transfer or adverse possession. The appellants can show neither. They cite no authority which would allow the courts to award them the property on the simple theory of equity or fairness, and this Court has not discovered any authority in the statutes or case law which would allow such a result.

In any case, this Court is not persuaded that ordering the respondents to relinquish the land would in fact be an equitable result. The respondents would lose a part of their ranch for which they have paid valuable consideration and to which they hold clear title. We also note that, while the appellants’ occupancy was indeed long-term, they never received a deed following the alleged sale of the land to them by the Manweilers. Further, they admit they attempted to pay the taxes on the land but were not allowed to do so. These facts should have alerted the appellants that any title they held was defective.

The respondents have clear and uncontroverted title to the disputed parcel. The appellants cannot show title through transfer or through adverse possession. Any title they acquired through mere occupation is subordinate to the respondents’ record title. For these reasons, the District Court did not err in granting summary judgment in favor of the respondents.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER and LEAPHART concur.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Johanna Naomi Gibson, Defendant.
    NO. DC 94-200A DECISION
    DATED this 17th day of August, 1995.
   On April 7, 1995, it was the judgment of the court that the defendant is guilty of the offenses of Count I: Accountability to Burglary, a felony; Count II; Theft, a felony; and Count III: Theft, a Felony Common Scheme. It is the sentence of this court that for Count I, the defendant shall receive a sentence to the Department of Corrections and Human Services for a period of twenty (20) years for placement in an appropriate correctional institution or program; for Count II, the defendant shall receive a sentence to the Department of Corrections and Human Services for a period of ten (10) years for placement in an appropriate correctional institution or program; for Count III, the defendant shall receive a sentence to the Department of Corrections and Human Services for a period of ten (10) years for placement in an appropriate correctional institution or program. All of said sentences shall run concurrent with each other, for a total of a twenty (20) year sentence. The Court further suspends fifteen (15) years of said sentence and said defendant shall comply with the conditions as stated in the April 7, 1995 judgment. The defendant shall pay restitution in the amount of $42,872.00, to be jointly and severally liable with her co-defendant, John McGoldrick, payable to regular installments at the directions of her probation officer, a surcharge of $20.00, and payments shall be payable through the Flathead County Attorney’s Office Trust Account, RO. Box 1516, Kalispell, MT 59903. The defendant shall pay a $10.00 monthly supervision fee, in payments of $30.00 per quarter, payable through the Clerk of Court’s Office. The defendant shall be given credit for 197 days served in the Detention Center in pre-sentence incarceration as of April 7, 1995.

On August 4, 1995, 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 remain the same as originally imposed.

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 August, 1995.

Hon. Ed McLean, Chairman, Hon. Jeffrey Sherlock, Member, Hon. Robert Boyd, Alternate Member.

The Sentence Review Board wishes to thank Johanna Gibson for representing herself in this matter.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. James Hagan, Defendant.
    NO. ADC 92-111 DECISION
    DATED this 17th day of August, 1995.
   On March 31, 1995, it was ordered that the defendant, James Hagan a/k/a Joseph W. Slack, be sentenced to the Department of Corrections, for a period of ten (10) years with five (5) years suspended, for the crime of Issuing a Bad Check (Common Scheme), a Felony. The suspended portion of said sentence has conditions as stated in the March 31,1995 judgment. The defendant is to be given credit for any jail time served on these warrants only. It is further ordered that the time in this sentence shall run consecutive to any other time ordered in any other cases.

On August 4, 1995, 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 did not wish to proceed and requested that his petition be dismissed.

It is hereby ordered that the petition is dismissed.

Done in open Court this 4th day of August, 1995.

Hon. Ed McLean, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.


text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.
    STATE OF MONTANA, Plaintiff, vs. Dennis Leonard Hanson, Defendant.
    NO. DC 94-225 DECISION
   On March 13, 1995, the Court found the defendant guilty of Aggravated Kidnapping, a Felony. For the offense of Aggravated Kidnapping, a Felony, the defendant shall serve a period of fifty (50) years at the Montana State Prison. The Court finds that the defendant used a dangerous weapon, a handgun, in the course of committing the offense of Aggravated Kidnapping. The Court hereby sentences the defendant to ten (10) years in the Montana State Prison. The enhanced sentence for use of a dangerous weapon shall be served consecutively with the sentence imposed for Aggravated Kidnapping, for a total sentence of sixty (60) years in the Montana State Prison. The sentence set forth above shall be served concurrently with the defendant’s sentences for three counts of First Degree Sexual Assault, imposed in the Sixth Judicial District Court in Campbell County, Wyoming. The defendant shall not be released from the prison until he successfully completes all phases of the sexual offender treatment program available to the defendant in the prison. The defendant is responsible to pay all reasonable costs incurred by the victim for her counseling. The Court concludes, that the protection of society requires that the defendant be ineligible for release on parole and participation in any supervised release program for a period of twenty-five (25) years. The defendant shall receive credit for ninety-seven (97) days previously served at the Gallatin County Detention Center through March 7, 1995, and shall receive credit for such additional days that the defendant shall serve at the Gallatin County Detention Center after March 7,1995, until his transportation to the Montana State Prison by the Gallatin County Sheriff.

DATED this 17th day of August, 1995.

On August 4, 1995, 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 Marty Lambert, Chief Deputy County Attorney from Bozeman.

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.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to read as follows: (1) For the offense of Aggravated Kidnapping, the defendant shall be sentenced to sixty (60) years in the Montana State Prison. The defendant shall not be eligible for parole for the entire sentence. (2) For the use of a weapon, the sentence shall be increased an additional ten (10) years. Both sentences shall run consecutive.

The reasons for the amendment are (1) The defendant attempted to rationalize and minimize his behavior and (2) the defendant presents such a danger to society.

Done in open Court this 4th day of August, 1995.

Hon. Ed McLean, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Dennis Hanson for representing himself in this matter and also to Marty Lambert, Chief Deputy County Attorney for representing the State.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Shannon R. Knudson, Defendant.
    NO. 11484 DECISION
   On April 5, 1995, it was the judgment of the court that Shannon R. Knudson be committed to the Department of Corrections for a term of ten (10) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the recommendation of the Court that the defendant be considered for placement in the Swan River Correctional Training Program. After successful completion of that program, the Department of Corrections shall place the defendant in an appropriate environment.

DATED this 17th day of August, 1995.

On August 4, 1995, 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.

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

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 August, 1995.

Hon. Ed McLean, Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Robert Boyd, Alternate Member

The Sentence Review Board wishes to thank Shannon Knudson for representing himself in this matter.


text:
    FROM: The District Court of the 20th Judicial District. County of Lake.
    STATE OF MONTANA Plaintiff, vs. Rhonda H. Kopszywa, Defendant.
    NO. DC 94-86 DECISION
   On April 5, 1995, the Court ordered that the defendant shall be punished by confinement in the Women’s Correctional Facility for a term of ten (10) years on Count I, with three (3) years suspended; and for a term of five (5) years on Count IV, with all suspended. The sentence imposed on Count IV shall run consecutive to the sentence imposed on Count I, for a total sentence of fifteen (15), with eight (8) years suspended. The defendant shall receive credit for time served on these offenses, which as of the date of this judgment totals one (1) day. The Court further orders that the suspended portion of the sentence shall be upon conditions as stated in the April 5,1995judgment. The Court further orders that the defendant shall pay to the Lake County Drug Fund the sum of Seven Hundred Fifty Dollars ($750.00) on Count I, and the sum of Seven Hundred Fifty Dollars ($750.00) on Count IV. The Court further orders that the defendant shall pay surcharges of Seventy-Five Dollars ($75.00) on Count I, and Seventy-Five Dollars ($75.00) on Count IV, 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.

DATED this 17th day of August, 1995.

On August 4, 1995, 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 Lynn Dankowski, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. 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, there is a split decision of the Sentence Review Division. The Honorable Ed McLean and Honorable Jeffrey Sherlock vote to suspend the remainder of the sentence.

The reason for the amendment is to bring the sentence more into conformity with other sentences of a similar nature around the state.

The Honorable Ted O. Lympus dissents. He would affirm the sentence as originally imposed.

The reasons for the dissent are: 1. The statutory presumption is not overcome. 2. The drugs that were sold were brought into the state with the intent to sell. 3. The defendant is already in a Pre-Release center.

Done in open Court this 4th day of August, 1995.

Hon. Ed McLean, Chairman, Hon. Ted O. Lympus, in dissent, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Lynn Dankowski, Legal Intern with the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Richard Murphy, Defendant.
    NO. CDC 92-268 DECISION
   On April 13, 1993, the defendant was sentenced to forty (40) years in the Montana State Penitentiary, for the crime of Count I: Sexual Intercourse Without Consent, a Felony. That the defendant is sentenced to ten (10) years in the Montana State Penitentiary, Deer Lodge, Montana, for the crime of Count II: Aggravated Kidnapping. That these sentences are to be served consecutively. That the defendant is declared ineligible for parole. That the defendant is declared a dangerous offender. That the defendant is given credit for time already served in the Cascade County Detention Center, a total of 227 days.

On August 4, 1995, 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 Rachael Clark, Legal Intern of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 17th day of August, 1995.

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

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 August, 1995.

Hon. Ed McLean, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

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