text:
    FROM: The District Court of the 1st Judicial District. County of Lewis & Clark.
    STATE OF MONTANA, Plaintiff, vs. Roberta L. Murphy, Defendant.
    NO. CDC 95-43 DECISION
   On April 11, 1995, it was ordered that for the offense of Count I - Forgery (Common Scheme), a felony, the defendant is sentenced to twenty (20) years at the Women’s Correctional System, with all of that time suspended, upon the conditions set forth in the April 11, 1995 judgment. It is further ordered that for the offense of Count II - Issuing a Bad Check, a felony, the defendant is sentenced to ten (10) years at the Women’s Correctional System, with two (2) years suspended, upon the conditions set forth in the April 11, 1995 judgment. The sentences shall run consecutively with each other and are conditioned as stated in the April 11,1995judgment. The defendant shall pay full restitution, plus an administrative handling fee, through the Court’s Restitution Officer on a schedule which she shall arrange with the Officer, in an amount to be determined by the Officer. Restitution shall include all checks written on Noel’s checking account and all insufficient fund checks written on her checking account, including, but not limited to, checks written to Kathryn Knudson and Don Gama. The defendant shall advise the Officer of any factors which may affect her ability to pay restitution or the Officer’s ability to contact her. The State shall present to the defendant and the Restitution officer other unauthorized expenses incurred by the defendant for inclusion in the defendant’s financial obligation. Upon request, a hearing may be held should the defendant contest the amount determined or inclusion of those obligations. The defendant shall not maintain a checking account nor may she be an authorized signator on a checking account. The defendant shall not own a credit card. The defendant shall pay the mandatory surcharge of $20 for each felony offense, pursuant to Section 46-18-236, MCA, for a total of $40. The defendant is granted 32 days’ credit for time served prior to sentencing.

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 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. Robert Boyd, Alternate Member.

The Sentence Review Board wishes to thank Roberta Murphy for representing herself in this matter.


source: Caselaw Access Project

license: Public Domain

text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.
    STATE OF MONTANA, Plaintiff, vs. Casey Nestle, Defendant.
    NO. DC 94-234 DECISION
   On May 17, 1995, the Court found the defendant guilty under Count I of Criminal Sale of Dangerous Drugs, a Felony; guilty under Count II of Criminal Sale of Dangerous Drugs, a felony; guilty under Count III of Criminal Possession of Dangerous Drugs,a Misdemeanor; guilty under Count IV of Criminal Possession of Dangerous Drugs, a felony; and guilty under Count V of Criminal Possession of Drug Paraphernalia. Under Count I, the defendant shall serve a period often (10) years at the Women’s Correctional Facility, Billings, Montana. Under Count II, the defendant shall serve a period of ten (10) years at the Women’s Correctional Facility in Billings, Montana. The sentences imposed under Count I and II shall be served concurrently. Under Count IV, the defendant shall serve a period of five (5) years at the Women’s Correctional Facility in Billings, Montana. The sentence under Count IV shall be served consecutively with the sentence under Counts I and II. Five (5) years of the sentence under Count IV shall be suspended under conditions as stated in the May 17,1995 judgment. The defendant shall make restitution to the court for the amount due in Cause Number DC 91-166. Under Counts III and V, the court finds the defendant guilty and enters a conviction of record. The defendant shall receive credit for days that the defendant shall serve at the Gallatin County Detention Center after May 17,1995, until her transportation to the Women’s Correctional Facility by the Gallatin County Sheriff.

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 Herman A. Watson, attorney from Bozeman. The state was represented by Jane Mersen, 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 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 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 Herman A. Watson, attorney from Bozeman for his assistance to the defendant and to this Court, and also to Jane Mersen for representing the State.


text:
    FROM: The District Court of the 15th Judicial District. County of Roosevelt.
    STATE OF MONTANA, Plaintiff, vs. Eddie Parham, Defendant.
    NO. 1216-C DECISION
    DATED this 17th day of August, 1995.
   On April 18, 1995, it was ordered that the defendant, Eddie Parham, be sentenced to the Department of Corrections and Human Services, State of Montana, for a period of ten (10) years for the crime of Issuing a Bad Check (common scheme). The Department of Corrections and Human Services may place the defendant, Eddie Parham, into an appropriate community-based program, facility or a state correctional institution. Further, it is ordered that the defendant, Eddie Parham, make restitution to the victims in the amount of $9,800.00.

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 Eddie L. Parham for representing himself in this matter.


author: JUSTICE ERDMANN

text:
    THADDEUS SOLEM, KENNETH NICHOLSON, and DAVID STEWART, Plaintiffs and Respondents, v. KEN CHILCOTE, Defendant and Appellant.
    No. 95-110.
    Submitted on Briefs October 19, 1995.
    Decided November 21, 1995.
    52 St.Rep. 1128.
    906 P.2d 209.
    274 Mont. 72.

      For Appellant: Michael Sol, Sol & Wolfe, Missoula.
    For Respondents: John Rayburn Velk, Attorney at Law, Missoula.
   JUSTICE ERDMANN

delivered the opinion of the Court.

This is an appeal of a decision of the Fourth Judicial District Court, Missoula County, awarding damages and attorney fees to Thaddeus Solem, Kenneth Nicholson, and David Stewart (the tenants) against Ken Chilcote (the landlord). We affirm in part, reverse in part, and direct the return of the landlord’s appeal bond.

We restate the issues as follows:

1. Did the District Court err in finding that the landlord wrongfully withheld a portion of the tenants’ security deposit?

2. Did the District Court err in determining there was an illegal provision in the rental agreement and awarding damages?

3. Did the District Court err in awarding attorney fees to the tenants?

4. Is the landlord entitled to the return of his appeal bond?

Facts

The tenants rented a residential unit from the landlord. The lease was a month-to-month agreement and required a $300 security deposit. Prior to the tenants moving in, the landlord completed a condition of premises statement which all three of the tenants signed. On March 15, 1991, the tenants gave an oral 30-day notice to terminate on April 15, 1991. Although the notice was not in writing as required by the lease, the landlord accepted it.

The landlord advised the tenants it was easier to lease the apartment at the beginning of the month and, if they could vacate by April 1,1991, they would receive a prorated portion of their rent back. The landlord started to run his advertisement to rent the apartment on March 23,1991. The tenants moved out by April 1,1991.

On March 30,1991, and prior to the tenants moving, The landlord alleges that he and his wife conducted a cleaning inspection and went through the apartment pointing out specific items to the tenants that needed cleaning. The landlord also alleges that later the same day he hand delivered a written notice of general cleaning requirements to the tenants’ mailbox. The tenants deny any such cleaning inspection and delivery of notice.

The apartment was leased to a new tenant on April 8,1991. On April 17, 1991, the landlord prepared a written statement of damages and cleaning and presented this statement to the tenants. The landlord deducted $70.50 for cleaning charges, $126.67 of prorated rent from April 1 through the date the premises were re-let on April 8, and $18.00 in damages and repairs ($10 for a missing smoke alarm and $8 for nail holes). He returned $84.83 of the $300 deposit to the tenants.

The tenants objected to the deductions and filed suit in Justice Court. Justice Court found that the landlord had agreed orally to refund any rent due after April 1, and that the rent from April 1 to April 8 was wrongfully withheld. The court then ordered double damages. The court also found that the landlord had wrongfully withheld $10 for a smoke detector and had failed to give a proper 48-hour notice for cleaning as required by the lease.

The landlord appealed the decision to the District Court for a trial de novo. In its August 3,1994, Judgment, the District Court awarded the tenants withheld rent, double damages, damages for an illegal provision in the lease, and attorney fees. From this Judgment, the landlord appeals.

Standard of Review

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 finding that the landlord wrongfully withheld a portion of the tenants’ security deposit?

The landlord withheld $88.50 from the tenants’ security deposit for cleaning ($70.50) and for repairing damages ($18.00 — nail holes and missing smoke alarm). The District Court found that the landlord did not meet the burden of proving he gave to the tenants a 48-hour notice of needed cleaning as required by § 70-25-201(3), MCA, and therefore held that this portion of the tenants’ security deposit was wrongfully withheld. Likewise, the court found that the landlord could not withhold funds for repairing the nail hole because he failed to provide the requisite 48-hour notice. In addition, the court found that the landlord wrongfully charged the tenants for a smoke detector when there was no credible evidence that a smoke detector was in the apartment when it was leased to the tenants.

The landlord argues that the Residential Landlord and Tenant Act and the Residential Security Deposits Act do not require a notice of any kind to be given to repair damages. He points out that the 48-hour notice requirement of § 70-25-201, MCA (1991), refers exclusively to cleaning. The landlord also contends he properly provided the tenants with a list of damages and a partial refund as required under § 70-25-202, MCA.

The tenants argue that damage to property, by nature, is very similar to cleaning charges and therefore the tenants should be allowed an opportunity to repair damages before money is withheld from their security deposit. The tenants claim, in any event, the landlord did not meet his burden of proving damages as required by § 70-25-204(1), MCA.

The tenants’ argument is incongruous. The District Court’s finding of fact stated “[tjenants have admitted liability for causing damage to the property in the form of nail holes ... .” However, the District Court’s determination that the landlord is still liable because prior notice of damages was required is incorrect. There is no requirement in the Residential Security Deposits Act that notice be given for repairs. The only action that the landlord needed to take under § 70-25-202, MCA, was to provide the tenant with a list of damages within 30 days of the termination of tenancy or 30 days after a surrender of the premises. The landlord did this in regard to the $8 nail holes, and therefore, that amount was properly withheld from the security deposit. We hold that the District Court erred in finding the landlord incorrectly withheld funds for the nail holes.

The landlord, however, is required to give a 48-hour notice for cleaning under § 70-25-201, MCA (1991). The landlord contends that he and his wife inspected the apartment on March 30, 1991, pointed out to the tenants what needed to be cleaned, and then delivered a written notice of cleaning to be done to the tenants’ mailbox. The landlord surmises that the tenants left without checking their mailbox. The tenants deny that the inspection and the delivery of the notice ever occurred.

The District Court found that the tenants never received written notice as required by statute. See § 70-25-201, MCA (1991). The tenants testified to the facts found by the District Court. In Williams v. DeVinney (1993), 259 Mont. 354, 359, 856 P.2d 546, 549, we stated “[d]ue regard is to be given the trial court’s ability to judge the credibility of the witnesses, and it is not this Court’s function to substitute its judgment for that of the trier of fact. DeSaye, 820 P.2d at 1287-88.” The record provides substantial evidence to support the District Court’s finding. We further determine that the court did not misapprehend this evidence and we have no firm conviction that a mistake has been made. We therefore conclude the District Court did not err in awarding to the tenants the $70.50 withheld for cleaning.

Additionally, the District Court agreed with the tenants and found that the smoke detector was not present when the tenants moved into the apartment. The landlord introduced a condition of premises statement signed by the tenants which lists a smoke detector as present and working when the tenants signed the lease. However, the landlord did not record the testing of the smoke detector as was his practice and the District Court did not find his testimony credible. Again, we will defer to the District Court’s judgment of the witnesses’ credibility. Williams, 856 P.2d at 549. There was substantial credible evidence to support the District Court’s finding. This evidence was not misapprehended. Nor do we have any conviction that a mistake has been made. We thus conclude that the District Court did not err in awarding to the tenants the $10.00 withheld for the smoke detector.

Finally, the landlord withheld $126.67 as prorated rent. The lease provided for 30-days notice to terminate the tenancy. The tenants asked the landlord if they could leave early, and he apparently agreed. The District Court went on to hold, however, that this attempted oral modification of the lease agreement was not effective. The court concluded that for an oral agreement to be effective, it must be fully executed on both sides. The court held that if the tenants had vacated the premises by April 1, which was done, and the landlord prorated the rent to April 1, which was not done, there would have been a full execution of the oral agreement and the lease would be modified. The court held, however, that the oral modification was not fully executed by the landlord and therefore was not effective.

The court’s conclusion regarding the attempted oral modification was not appealed by either party and so is not before this Court. On appeal, we confine ourselves solely to the case as it is appealed to us. Feely v. Lacey (1958), 133 Mont. 283, 293, 322 P.2d 1104, 1109. Accordingly, we must accept the District Court’s holding on this issue.

Based on that holding, the District Court should have allowed the landlord to prorate the April rent and charge the tenants for the period of time for which the property was not re-leased. That period of time was from April 1 through April 8 and was reflected by the $126.67 that the landlord withheld from the security deposit for unpaid rent. Thus, the landlord properly withheld $126.67 from tenants’ security deposit and the District Court erred in awarding that amount to the tenants.

The landlord was authorized to withhold a total of $134.67 from the security deposit ($8 nail hole and $126.67 prorated rent). The landlord wrongfully withheld the $70.50 for cleaning and the $10 for the smoke detector for a total of $80.50. Under § 70-25-204, MCA, the tenants were entitled to double the amount wrongfully withheld for the total of $ 161 in damages. We therefore hold that the District Court erred in part in finding that the landlord wrongfully withheld a portion of the tenants’ security deposit.

Issue 2

Did the District Court err in determining there was an illegal provision in the rental agreement and awarding damages?

The lease contained a provision which stated: “Acceptance of a refund of all or a portion of the deposit by tenant shall constitute a full and final release of landlord from any claims of tenant of any nature whatsoever.” The District Court relied on § 70-24-202(1), MCA, in concluding this provision of the landlord’s lease agreement was illegal. Section 70-24-202(1), MCA, states that a rental agreement may not provide that a party agree to waive or forego rights provided under the Residential Landlord and Tenant Act. The District Court found that the contested provision in the rental agreement was in conflict with the provisions of § 70-24-442(1), MCA, which provides as follows:

In an action on a rental agreement or arising under this chapter, reasonable attorney fees, together with costs and necessary disbursements, may be awarded to the prevailing party notwithstanding an agreement to the contrary.

The tenants’ first amended complaint alleged that the lease agreement contained a provision prohibited by § 70-24-202(1), MCA. The action constituted “an action on a rental agreement” and that provision grants tenants the right to pursue attorney fees — a right which the contested provision in the rental agreement attempted to waive. Although the tenants requested and were awarded attorney fees under the provisions of the Residential Security Deposits Act, they also alleged that the contested provision in the lease agreement was an attempt to waive the right to request attorney fees under § 70-24-442(1), MCA.

The District Court went on to assess additional damages under the provisions of § 70-24-403(2), MCA(1991), in the Residential Landlord and Tenant Act for this illegal provision. Section 70-24-403, MCA (1991), provides:

(1) Aprovision prohibited by 70-24-202 included in a rental agreement is unenforceable.

(2) If a party purposefully uses a rental agreement containing provisions known by him to be prohibited, the other party may recover, in addition to his actual damages, an amount up to three months’ periodic rent.

The landlord argues that this is an action brought under Chapter 25 of Title 70, the Residential Security Deposits Act, and the court was therefore prohibited from relying on § 70-24-403, MCA (1991), in the Residential Landlord and Tenant Act to award additional damages. This argument ignores the allegations in the first amended complaint that the contested provision was prohibited by § 70-24-202(1), MCA. The District Court did not err in finding that the contested provision in the rental agreement was prohibited by § 70-24-202(1), MCA, or in awarding additional damages under § 70-24-403(2), MCA (1991). We therefore affirm the District Court on this issue.

Issue 3

Did the District Court err in awarding attorney fees to the tenants?

The landlord questions why he must pay attorney fees when he prevailed on the major part of his reason for this appeal — the unexecuted oral agreement to prorate rent from April 1, 1991, was held invalid. The landlord references cases where we have upheld the reductions of attorney fees when the amount in controversy is simply not worth such a fee. See Carkeek v. Ayer (1980), 188 Mont. 345, 348, 613 P.2d 1013, 1016. He argues it is unjustified for the District Court to award attorney fees of $5253.68 for a $70.50 judgment.

Attorney fees are available under § 70-25-204, MCA. That section provides that any person who wrongfully withholds a residential property security deposit, or any portion thereof, shall be liable in damages to the tenant in a civil action, and attorney fees may be awarded to the prevailing party at the discretion of the district court. Section 70-25-204, MCA.

In E.C.A. Environmental Management Services, Inc. v. Toenyes (1984), 208 Mont. 336, 679 P.2d 213, we discussed the proper construction of “prevailing party” in regard to attorney fees. We stated that

[n]o one factor should be considered in determining the prevailing party for the purpose of attorney fees. The party that is awarded a money judgment in a lawsuit is not necessarily the successful or prevailing party. However, this Court agrees with those jurisdictions that have found the award of money to be an important item to consider when deciding who, in fact, did prevail. Ocean West Contractors v. Halec Const. Co. (1979), 123 Ariz. 470, 600 P.2d 1102. ... The party that survives an action involving a counterclaim, set-off, refund or penalty with the net judgment should generally be considered the successful or prevailing party.

E.C.A., 679 P.2d at 217-18. Although we have modified the District Court’s award to the tenants, the action involved a refund of tenants’ security deposit for a net judgment of $80.50 in favor of the tenants. The tenants are therefore still the prevailing parties on this issue and are entitled to their attorney fees at the District Court’s discretion.

We will not reverse a district court’s award of attorney fees absent an abuse of the court’s discretion. Sage v. Rogers (1993) 257 Mont. 229, 242, 848 P.2d 1034, 1042. The District Court awarded attorney fees to the tenants for those fees associated with the recovery of the tenants’ security deposit. The court then ordered the tenants to file an affidavit of those fees and provided for a period of time in which the landlord may object to the tenants’ claim and request a hearing. We conclude the District Court did not abuse its discretion in its award of attorney fees, and therefore hold that the District Court did not err in awarding attorney fees to the tenants.

Issue 4

Is the landlord entitled to the return of his appeal bond?

The landlord requests this Court to order the return of his appeal bond in the amount of $2000. The District Court did not respond to the landlord’s motions to return the appeal bond to him though the judgment had been executed, and thus, the appeal bond has remained filed with the Justice Court. The tenants have conceded the validity of the landlord’s claim to the bond and we conclude that the landlord is entitled to return of the bond.

We affirm in part, reverse in part, and direct the District Court to order the Justice Court to return the $2000 bond to the landlord.

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


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Dennis Ray Peterson, Defendant.
    NO. DC 93-025(A) DECISION
    DATED this 17th day of August, 1995.
   On March 8, 1995, it was the judgment of the Court that the defendant serve a term of ten (10) years at the Montana State Prison. It is also recommended that the defendant be considered for placement at the Swan River Boot Camp. The defendant must complete the Chemical Dependency Treatment and Criminal Thinking Errors programs available at the Montana State Prison and follow all resulting recommendations to the satisfaction of his supervising officers and treatment providers before he may be considered eligible for parole. Should the defendant be granted parole, he must comply with all requirements imposed by this Court’s March 24,1993, judgment as conditions of his release and supervision. The defendant is to be given credit for two hundred forty-one (241) days served in the Flathead County Detention Center pending final disposition in this matter. Given his numerous violations of the conditions of his probation, the defendant is not to be given credit for time otherwise served on probation.

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. Jeffrey M. Sherlock, Member, Hon. Robert Boyd, Alternate Member.

The Sentence Review Board wishes to thank Dennis Peterson for representing himself in this matter.


text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.

      STATE OF MONTANA, Plaintiff, vs. Barry G. Powers, Defendant.
    NO. DC 94-238 DECISION
    DATED this 17th day of August, 1995.
   On April 28, 1995, the Court found the defendant guilty under Count I of Burglary, a Felony and guilty under Count II of Theft, a Felony. Under Count I for the offense of Burglary, a Felony, the defendant shall serve a period of 15 years commitment to the Montana Department of Corrections and Human Services for placement in an appropriate correctional facility or program. Under Count II for the offense of Theft, a Felony, the defendant shall serve a period of ten years commitment to the Montana Department of Corrections and Human Services for placement in an appropriate correctional facility or program. The sentences imposed under Count I and Count II shall be served concurrently. The defendant is designated a non-dangerous offender for purposes of parole release. The defendant shall receive credit for 123 days previously served at the Gallatin County Detention Center as of April 25,1995, and shall receive credit for such additional days that the defendant shall serve at the Gallatin County Detention Center after April 25, 1995, until his transportation to the Montana State Prison by the Gallatin County Sheriff.

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 from the Montana Defender Project. 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 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 and also to Marty Lambert, Chief Deputy County Attorney from Bozeman for representing the State.


text:
    FROM: The District Court of the 20th Judicial District. County of Lake.

      STATE OF MONTANA, Plaintiff, vs. Reynaldo J. Thompson, Defendant.
    NO. DC 95-08 DECISION
    DATED this 17th day of August, 1995.
   On April 19, 1995, the Court ordered that the defendant shall be punished by confinement in the Montana State Prison for a term of ten (10) years, with five (5) years suspended. The defendant shall receive credit for time served in the Lake County Jail, which as of the date of this judgment totals seventy-five (75) days. The Court at this time does not make a designation of the defendant as a dangerous or non-dangerous offender for purposes of parole eligibility. The Court further orders that the suspended portion of the sentence shall be upon conditions as stated in the April 19, 1995 judgment. The Court further orders that the defendant shall be responsible for restitution to the victim of the offense: Total Home, 719 Highway 93 North, Ronan, Montana 59864, in the amount of One Thousand Two Hundred Thirty-Six Dollars ($1,236.00). The Court further orders that the defendant shall be fined the sum of Four Hundred Dollars ($400.00), which is suspended. The Court further orders that the defendant shall pay surcharge of Forty Dollars ($40.00), 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 restitution and surcharge shall be paid to the Clerk of the District Court in monthly payments as determined by his probation officer, which payments shall commence thirty (30) days after the defendant’s release from the Montana State Prison, and shall be paid in full no later than one (1) year prior to his discharge from parole/probation.

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 Chad Wright, 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, there is a split decision of the Sentence Review Division. The Honorable Ed McLean and Honorable Ted Lympus vote to affirm the sentence 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.

The Honorable Jeffrey Sherlock dissents. He would reduce the sentence to make the defendant parole eligible immediately.

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 Chad Wright, Legal Intern from the Montana Defender Project for his 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. Ricky Lynn White, Defendant.
    NO. 11423 DECISION
    DATED this 17th day of August, 1995.
   On April 24, 1995, it was the judgment of the Court that Ricky Lynn White be committed to the Department of Corrections for a term of five (5) 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 if the defendant is released on parole and/or placed in a pre-release center that the defendant not be placed in Missoula or near the defendant’s ex-wife or any of the defendant’s children. Defendant shall receive credit for time served at Missoula County Jail from December 28, 1994, through April 24, 1995, in the amount of one hundred eighteen (118) 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 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. Ted O. Lympus, Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Robert Boyd, Alternate Member.

The Sentence Review Board wishes to thank Ricky Lynn White for representing himself in this matter.


text:
    FROM: The District Court of the 7th Judicial District. County of Richland.
    STATE OF MONTANA, Plaintiff, vs. Scott Lavel Zieske, Defendant.
    NO. 94-007 DECISION

      DATED this 17th day of August, 1995.
   On May 11, 1995, it was ordered that the petition for revocation of suspended sentence dated January 31, 1995, is hereby granted, and pursuant thereto, the order suspending sentence dated November 28, 1994, is hereby vacated. The defendant is given credit for time served in the Richland County Jail relative to this matter, but shall not be given credit for the time of his fourteen (14) day furlough ending January 4, 1995. The defendant is given credit for one hundred forty-one (141) days served, which figure includes the one day for which the defendant was given credit in the judgment and sentence of this Court dated November 28,1994. The defendant is hereby committed to the Department of Corrections and Human Services for the remainder of his term. The Department of Corrections and Human Services may place the defendant in a state correctional institution or into an appropriate community based program or facility.

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 Scott Zieske for representing himself in this matter.


text:
    OCTOBER 1995 CALENDAR
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Carlos Ambriz, Defendant.
    NO. CDC 94-163a DECISION
    DATED this 1st day of November, 1995.
   On August 11, 1995, it was ordered that the defendant be sentenced to Montana State Penitentiary for a period of forty (40) years for the crime of Deliberate Homicide, a Felony. Should parole be obtained, conditions will apply as stated in the August 11, 1995 judgment. The defendant is to be given credit for time served in the Cascade County Detention Center, a total of 419 days. This Court recommends that the Department of Immigration and Naturalization should consider deportation upon release from prison.

On October 19, 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 requested that his case be continued.

After careful consideration, the motion for a continuance was granted. The case shall be heard at the March, 1996 hearing.

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Tony Lawrence Benton, Defendant.
    NO. DC 95-063A DECISION
   On June 20th, 1995, it was the finding of the court that the defendant is guilty of the offense of Theft, a felony. It is the order of the Court that the defendant be sentenced to ten (10) years at the Montana State Prison with five (5) years suspended provided the defendant comply with conditions as stated in the June 20, 1995 judgment. The defendant shall pay restitution in the amount of $1,140.00 and payments shall be payable through the Flathead County Attorney’s Office Trust Account, P.O. 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 134 days served in the Detention Center in pre-sentence incarceration as of June 20, 1995.

DATED this 2nd day of November, 1995.

On October 20, 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 hfis 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 20th day of October, 1995. '

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


text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.
    STATE OF MONTANA, Plaintiff, vs. Anthel LaVan Brown, Defendant.
    NO. 2744 DECISION
   On November 8, 1976, it was the sentence and judgment of the Court as follows: 1. The defendant shall be imprisoned in the State Prison at Deer Lodge, Montana, for a period of ten (10) years on Count I: Felony, Theft; for a period of one hundred years (100) years on Count II: Felony, Deliberate Homicide; for a period of twenty (20) years on Count III: Felony, Sexual Intercourse Without Consent; for a period of forty years (40) on Count IV: Felony, Robbery; and for a period of twenty (20) years on Count V: Felony, Aggravated Assault. Each sentence is to be considered as a separate and distinct term as applied to any and all Montana rules and regulations concerning pardons and parole. Said terms and sentences to be served consecutively. The defendant shall receive a total credit of forty-five (45) days for time served in jail prior to sentencing.

On October 19, 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 Edmund F. Sheehy, Jr., attorney from Helena. The state was represented by Marty Lambert, 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. \

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.

DATED this 1st day of November, 1995.

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

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Edmund F. Sheehy, Jr., attorney from Helena, for representing Mr. Brown in this matter and also to Marty Lambert, Deputy County Attorney from Bozeman for representing the State.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Duane A. Burchill, Defendant.
    NO. DC 94-553 DECISION
   On March 24, 1995, it was ordered that Duane Burchill be punished by imprisonment in the Montana State Prison as follows: 1. On Count I: Robbery (Felony) that the said defendant is hereby sentenced for the term of forty (40) years. 2. On Count II: Assault (Felony) that the said defendant is hereby sentenced for the term of ten (10) years to run concurrently with the sentence received in Count I of this criminal cause. 3. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 163 days. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County. The defendant is further notified that the law imposed upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court.

On October 19, 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 Jack Sands, attorney from Billings. The state was represented by Josh VanDeWetering, Deputy County Attorney from Billings.

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

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

DATED this 1st day of November, 1995.

The Sentence Review Division does not find the defendant’s explanation that he was not an active participant in the crime of robbery credible, and a reduction of the sentence is not warranted.

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

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Jack Sands, attorney from Billings, for representing Mr. Burchill in this matter and also to Josh VanDeWetering, Deputy County Attorney from Billings, for representing the State.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Christian Chronister, Defendant.
    NO. 11401 DECISION
   On June 12, 1995, it was the judgment of the Court that the defendant be sentenced to a term of twenty (20) years in the Montana State Prison. It is the recommendation of the Court to the Parole Board that as a condition of any parole that the defendant shall be required to pay restitution as ordered in the June 12, 1995 judgment. That, however, ten (10) years of defendant’s sentence is hereby suspended on terms and conditions as stated in the June 12, 1995 judgment. Defendant shall receive credit for time served at Missoula County Jail from December 6,1994, through date of sentencing, June 12, 1995, in the amount of one hundred eighty-nine (189) days. It is further ordered that as restitution in this matter is received by the Clerk of Court, the Clerk may pro rate partial payments to the victims. The restitution shall be disbursed to St. Patrick Hospital (RE: Damian McCarty, Account #9434000268), 500 W. Broadway, Missoula, MT 59802 in the amount of Fifty-eight Thousand Four Hundred Sixteen and 58/100 Dollars ($58,416.58); to Consultec, Inc. (RE: Damian McCarty, Account #9434000268), PO Box 8000, Helena, MT 59604, in the amount of Twenty Thousand Eight Hundred Forty-five and 43/100 Dollars ($20,845.43); to Dr. Chriss Mack (RE: Damian McCarty), 601 W. Spruce, Missoula, MT 59802, in the amount of One Thousand Nine Hundred Twenty-nine and 96/100 Dollars ($1,929.96); to Missoula Radiology (RE: Damian McCarty), 3205 Russell, Missoula, MT 59802, in the amount of One Thousand Sixty and 75/100 Dollars ($1,060.75); to Dr. Ray Norgaard (RE: Damian McCarty), 327 E. Broadway, Missoula, MT 59802, in the amount of Two Thousand Dollars ($2,000.00); and to Dr. Susan Larson, Western Montana Clinic, 515 West Front, Missoula, MT 59802, in the amount of Two Hundred Dollars ($200.00).

On October 19, 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.

DATED this 1st day of November, 1995.

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

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

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Christian Chronister for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Keith Brandley Creger, Defendant.
    NO. 11110 DECISION
   On May 5, 1995, it was the judgment of the court that Keith Brandley Creger be and is hereby sentenced to a term of twenty (20) years in the Montana State Prison for the offense of Sexual Assault, a Felony. 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. That however, ten (10) years of defendant’s sentence is hereby suspended on terms and conditions as stated in the May 5, 1995 judgment. That as a condition of suspending the last ten (10) years of defendant’s sentence, the defendant shall complete the sex offender program while at the Montana State Prison. That the defendant shall reimburse Missoula County through the Clerk of the District Court for his court appointed attorney in the amount of Four Hundred Seventy-five Dollars (475.00), according to a schedule as set by his probation officer. That the defendant shall pay a fee through the Clerk of the District Court in the amount of Twenty Dollars ($20.00), according to a schedule as set by his probation officer, to go to the County Attorney Surcharge Fund as provided in Section 46-18-236, M.C.A. That the defendant shall pay a fine to go to the community service program in the amount of Eighty-five Dollars ($85.00). Said fine shall be paid through the Clerk of the District Court and according to a schedule as set by his probation officer. That the defendant shall pay a probationary supervision fee in the amount of Ten Dollars ($10.00) per month or One Hundred Twenty Dollars ($120.00) per year, pursuant to Section 46-23-1011, M.C.A., on a schedule to be determined by his probation officer. The fee shall be paid through the Clerk of the District Court. Defendant shall receive credit for time served at Missoula County Jail from April 13,1994, through date of sentencing, May 5,1995, in the amount of three hundred eighty-eight (388) days.

On October 19, 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.

DATED this 1st day of November, 1995.

It is hereby ordered that the petition is dismissed.

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. ELLEN ARTHUN and BRUCE ARTHUN, Defendants and Appellants.
    No. 95-086.
    Submitted on Briefs September 21, 1995.
    Decided November 21, 1995.
    52 St.Rep. 1133.
    906 P.2d 216.
    274 Mont. 82.

      For Appellant: Larry Jent, Williams, Jent & Dockins, Bozeman.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, John A. Paulson, Assistant Attorney General, Helena; Robert W. Brown, Special Deputy Park County Attorney, Montana Law Enforcement Academy, Bozeman.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Defendants Ellen and Bruce Arthun were charged by information with possession of drug paraphernalia and criminal possession of dangerous drugs. After a nonjury trial in the District Court for the Sixth Judicial District in Park County, the Arthuns were found guilty of all charges. The Arthuns appeal the District Court’s denial of their motion to suppress evidence and the court’s verdict. We affirm the order and judgment of the District Court.

There are three issues on appeal:

1. Did the District Court err when it denied the Arthuns’ motion to suppress the package of marijuana?

2. Was there sufficient evidence to convict both defendants of felony criminal possession of dangerous drugs?

3. Was there sufficient evidence to convict Bruce Arthun of misdemeanor possession of drug paraphernalia?

FACTUAL BACKGROUND

On May 25, 1993, Mike Bracket, a police officer in Louisville, Kentucky, contacted Park County Deputy Sheriff, Henry Tashjian, and informed him that the United Parcel Service (UPS) transport hub in Louisville had inspected a package addressed to Ellen Arthun in Park County, Montana, and had discovered what appeared to be a sizeable amount of marijuana. The marijuana had been shipped in a motor oil box from Tucson, Arizona, and was addressed to Ellen at the Arthuns’ rural home located on U.S. Highway 89 between Wilsall and Clyde Park.

Officer Tashjian arranged for the box to be sent to the Livingston Police Department. When the package arrived the next day, the officers tested the contents and resealed it for delivery to the Arthuns’ residence.

Livingston Police Officer Gerald Cox, disguised as a UPS delivery man, made the delivery on May 26, 1993, at about 3:45 p.m. Ellen Arthun came to the door and accepted the package. She expressed no surprise at its delivery, and neither Ellen nor Bruce did anything to return or disclaim it.

Officer Tashjian and other local law enforcement personnel set up surveillance points near the Arthuns’ home and observed the area through binoculars for several hours after the delivery of the package. They saw Bruce and his young stepson leave the residence and drive to an unlocked farm shed located about 400 yards away on the other side of U.S. Highway 89. Bruce entered the shed for a short time, then drove one mile to his parents’ranch home. That afternoon, Bruce and his stepson also went gopher hunting and drove to a store in Wilsall before they returned home. The officers’ surveillance was obstructed at times during their surveillance, and they did not see Bruce take the box out of his home.

Following the surveillance, Officer Tashjian obtained a search warrant for the Arthuns’ residence and served it at 8:39 p.m. Officer Tashjian walked up to the Arthuns’ home and spoke with Ellen and Bruce. He explained the reason for the search, told them about the officers’ involvement in the UPS delivery, and had them wait on the living room couch while the search was conducted. The Arthuns were not handcuffed during the search.

During the search, the officers found a baggie of marijuana, some Zig Zag rolling papers, and a marijuana pipe in the kitchen cupboards. They also found another marijuana pipe, a “roach” clip used for holding marijuana cigarettes, and numerous partially burned marijuana cigarettes in two glass bowls on the kitchen counter. In Ellen’s purse, located on the kitchen counter, the officers found more Zig Zag papers, some marijuana, and a variety of pills for which Ellen had no prescription. Also in Ellen’s purse were several UPS receipts for shipments to Tucson, Arizona. However, the officers did not find the UPS box in the house.

Following the search, Officer Tashjian placed the Arthuns under arrest. They were advised of their rights outside the presence of their two children and were placed in separate patrol cars. Officer Tashjian then asked Bruce Arthun where the UPS package was located. At first Bruce replied, “What box?” Officer Tashjian again explained that the officers had conducted and observed the controlled delivery of the box and had watched Bruce’s movements after the delivery, including his trips to the farm shed and his parents’ house. Officer Tashjian told Bruce he could get a search warrant for the shed and Bruce’s parents’ house if necessary. Bruce did not state where the box was located, but said he would show the officers. He directed two of the officers to the farm shed located 400 yards away on the other side of the highway, entered the shed with them, and pointed out where the box was concealed behind some old boards and farm supplies. The officers retrieved the box, which had not been opened.

The items retrieved from the Arthuns’home and from Ellen’s purse were tested at the Montana Crime Lab, and were found to be dangerous drugs of different types (marijuana, oxycodene, alprazolan, and morphine). Tests of the contents of the UPS package discovered in the shed disclosed 3.96 pounds of marijuana, a controlled substance. On the basis of these tests, both Ellen and Bruce were charged with criminal possession of drug paraphernalia and criminal possession of dangerous drugs.

On November 15,1993, the Arthuns filed a motion to suppress the UPS package on the basis that it was the product of a warrantless search to which they had not consented. The District Court denied that motion and found that there was a search of the farm shed, but that Bruce consented to it, and that neither Bruce nor Ellen had standing to complain of a warrantless search of the structure. Following a nonjury trial, Bruce was convicted of criminal possession of drug paraphernalia and one count of criminal possession of dangerous drugs. Ellen was convicted of four counts of criminal possession of dangerous drugs and one count of criminal possession of drug paraphernalia.

ISSUE 1

Did the District Court err when it denied the Arthuns’ motion to suppress the package of marijuana?

We review a district court’s denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law. State v. Williams (1995), [273 Mont. 459], 904 P.2d 1019, 1021 (citing State v. Flack (1993), 260 Mont. 181, 188, 860 P.2d 89, 94).

In this case, the facts are undisputed. Both parties agree that, based on the evidence seized during a lawful search of the Arthuns’ home, Officer Tashjian arrested Bruce and Ellen and advised them of their rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1062, 16 L.Ed.2d 694. Both parties further agree that later, after the UPS package was not discovered in the Arthuns’ home, Officer Tashjian told Bruce that he could get a search warrant for the shed and Bruce’s parents’house. Finally, the parties agree that Bruce responded to the request for evidence by taking two officers to the farm shed and specifically directing them to the location of the package.

Based on the foregoing facts, the District Court denied the Arthuns’ motion to suppress. The court held that there was a search of the farm shed, but that Bruce had consented to it, and that neither Bruce nor Ellen had standing to challenge a warrantless search of the structure. Although we disagree that the Arthuns lacked standing (see State v. Bullock (1995), [272 Mont. 361], 901 P.2d 61), it is well established that this Court will uphold the district court’s result, if correct, even though arrived at for the wrong reason. Hagan v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387. Therefore, we hold that the District Court correctly denied the Arthuns’ motion to suppress because there was no search of the shed which could have violated the Fourth Amendment of the United States Constitution, or Article II, Section 11, of the Montana Constitution.

The issue of whether the discovery of the UPS box constituted a “search” in violation of the Fourth Amendment was raised and briefed at the district court level. In response to the Arthuns’ motion to suppress, the prosecutor argued that the box had not been recovered by means of a search and seizure under either the Fourth Amendment, or Article II, Section 11, since Bruce had essentially handed over the box of marijuana and no search had been conducted. At both the district court level and on appeal, the State cited State v. Graves (1981), 191 Mont. 81, 622 P.2d 203, for the proposition that a defendant’s delivery of a piece of evidence does not constitute a search.

In Graves, the defendant was involved in a bar fight in which he stabbed another bar patron. A police officer later approached the defendant and asked him if he had been involved in the altercation. The defendant answered that he had. When the officer asked him if a knife had been involved, the defendant said “yes” and turned the knife over to the police. The defendant later maintained that the knife should be suppressed as a result of a nonconsensual warrantless search and seizure. This Court held that no search was involved because the defendant handed the evidence over to the police. Graves, 622 P.2d at 208.

We agree that the Graves holding applies to this case. The record is clear that the officers did not conduct an independent inspection of the farm shed, but rather entered it at Bruce’s invitation and retrieved the box which Bruce located for them. This Court has previously stated that:

A ‘search’ is a prying into hidden places for that which is concealed. ...

The distinctive factor that turns an observation into a search, in the constitutional sense, is whether the person making the observation has a right to be in the place where the observation is made.

State v. Carlson (1982), 198 Mont. 113, 118-19, 644 P.2d 498, 501.

We conclude that under the facts of this case, the officers were invited into and had a right to be in the farm shed where the package was located. We further conclude that there was no prying or investigation, and thus no “search” so as to implicate either the Fourth Amendment or the Montana Constitution.

Since Bruce was in police custody when he directed the officers to the UPS package, and since there was no “search” pursuant to the Fourth Amendment, the proper inquiry should have been whether Bruce’s statement to the police was voluntary. Although Bruce did not raise the issue of his Fifth Amendment rights at either the district court level or on appeal, we find ample evidence in the record to support a conclusion that Bruce’s disclosure of the evidence was voluntary. Bruce had been read his Miranda rights and had failed to invoke either his right to remain silent or his right to an attorney. His statement to Officer Tashjian was clearly made of his own free will, without duress. As the District Court noted, “[t]he totality of the circumstances indicate Bruce acted voluntarily, and there was no violation or abuse of defendants’ constitutional or statutory rights.” Therefore, we affirm the District Court’s denial of the Arthuns’ motion to suppress the package of marijuana found in the shed on the property belonging to Bruce’s parents.

ISSUE 2

Was there sufficient evidence to convict both defendants of felony criminal possession of dangerous drugs?

We review the sufficiency of evidence to determine “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” State v. Arlington (1994), 265 Mont. 127, 146, 875 P.2d 307, 318 (quoting State v. Cyr (1987), 229 Mont. 337, 339, 746 P.2d 120, 122).

Bruce and Ellen claim that the evidence failed to show that they had “knowing” possession of the UPS package. The Arthuns maintain that mere possession of the unopened package which was addressed to Ellen is not enough to establish their knowledge of its contents.

Section 45-9-102, MCA, requires proof that a defendant possessed dangerous drugs. “Possession” is defined as “the knowing control of anything for a sufficient time to be able to terminate control.” Section 45-2-101(52), MCA (1993) (emphasis added). Section 45-2-101(33), MCA (1993), provides that a person acts knowingly with respect to a circumstance described in a statute “when the person is aware of the person’s own conduct or ... that the circumstance exists.”

Although “knowing control” cannot be inferred from mere possession alone, this Court has held that knowledge of the contents of a package may be proven by direct evidence or any evidence of acts, declarations, or conduct of the accused from which the trier of fact may infer knowledge. State v. Hall (1991), 249 Mont. 366, 371, 816 P.2d 438, 441. See also § 45-2-103(3), MCA (“[t]he existence of a mental state may be inferred from the acts of the accused and the facts and circumstances connected with the offense.”).

The Arthuns claim that there is no evidence that Ellen had any knowledge of the contents of the box, and that Bruce’s knowledge cannot be presumed from his knowledge of the location of the box. We hold, however, that there was sufficient evidence from which the District Court could have inferred that both Bruce and Ellen had knowledge of the contents of the package. Ellen accepted the package without question or surprise, and both Bruce and Ellen kept the package without attempting to return or disclaim it. Bruce took the package to a farm shed within hours of its delivery and concealed it behind a pile of farm tools. Although Bruce feigned ignorance when questioned about the box’s location, he later directed two officers to its exact location in the shed. The officers conducting a search of the Arthuns’ home found other marijuana and paraphernalia in easily accessible places. Ellen had several UPS receipts in her purse for items sent to Tucson, Arizona, the place from which the package of marijuana had been sent.

We acknowledge that mere delivery is not enough to establish knowing control. State v. Smith (1983), 203 Mont. 346, 350, 661 P.2d 463, 465. We hold, however, that delivery combined with other suspicious circumstances — in this case, the drugs and other paraphernalia found in the Arthuns’ home, the receipts found in Ellen’s purse, and Bruce’s attempt to conceal the package — is sufficient evidence from which a trier of fact could infer knowing possession. Accordingly, we hold that there was sufficient evidence to support the District Court’s conviction of Bruce and Ellen Arthun for felony criminal possession of dangerous drugs. Their convictions are, therefore, affirmed.

ISSUE 3

Was there sufficient evidence to convict Bruce Arthun of misdemeanor possession of drug paraphernalia?

Bruce contends that the evidence was insufficient to support his conviction for criminal possession of drug paraphernalia, pursuant to § 45-10-103, MCA. Section 45-10-103, MCA, requires proof that the defendant (1) possessed the drug paraphernalia, and (2) intended to use it. Bruce asserts no reasonable inference can be made that he possessed or intended to use the paraphernalia found in the kitchen area of the Arthuns’ home.

This Court has, however, upheld convictions where drugs have been found in joint or common areas of a residence. State v. Scheffelman (1987), 225 Mont. 408, 413, 733 P.2d 348, 351. We have, in fact, held that “[w]here a controlled substance is found in a place subject to the joint dominion and control of two persons, possession may be imputed to either or both persons.” State v. Hall (1991), 249 Mont. 366, 371, 816 P.2d 438, 441. In this case, the Arthuns’kitchen, where the paraphernalia was found, was unlocked and openly accessible to anyone in the house. We conclude, therefore, that there was sufficient evidence to support the District Court’s finding that Bruce had constructive possession of the paraphernalia.

The second element of “intent to use” is more difficult to prove. Because there is rarely direct proof, intent must be inferred from the acts of the accused and the facts and circumstances of the offense. Hall, 816 P.2d at 441. In this case, the police found marijuana, two marijuana pipes, and two glass bowls of marijuana “roaches.” From this evidence, the District Comb could have properly inferred that the marijuana was being consumed by two users. In addition, Bruce was also convicted of the related crime of felony possession of a UPS package of marijuana, which he had knowingly concealed in a farm shed. Although Bruce submitted to a post-arrest drug test which did not indicate the presence of any THC, the active ingredient in marijuana, the test was performed approximately one week after Bruce’s arrest and the District Court noted that Bruce did not submit any evidence of how long THC is detectable after the use of marijuana.

This Court has stated that “[w]hen circumstantial evidence is susceptible to two interpretations, one which supports guilt and the other which supports innocence, the trier of fact determines which is most reasonable.” State v. Bernhardt (1991), 249 Mont. 30, 32, 813 P.2d 436, 437. We hold that the presence of the drugs and paraphernalia in the Arthuns’ kitchen, combined with Bruce’s connection to the box of marijuana, would have been sufficient to infer that Bruce possessed the paraphernalia with the intent to use it. We conclude there was sufficient evidence to support Bruce’s conviction of possession of drug paraphernalia.

Based on the foregoing analysis, we affirm the District Court’s denial of the Arthuns’ motion to suppress, and affirm the convictions of Bruce and Ellen Arthun for possession of dangerous drugs, and Bruce Arthun’s conviction for possession of paraphernalia.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON, GRAY and HUNT concur.


text:
    FROM: The District Court of the 20th Judicial District. County of Lake.
    STATE OF MONTANA, Plaintiff, vs. Randy A. Eastvold, Defendant.
    NO. DC 94-88 DECISION
   On June 28, 1995, it was ordered that the suspension of sentence heretofore entered on January 11, 1995 is revoked. It is further ordered that the defendant be punished by confinement in the Montana State Prison for a period of ten (10) years, with five (5) years suspended. The defendant shall receive credit for time previously served on this offense at initial sentencing of one hundred twenty (120) days, and on this revocation which as of the date of this judgment totals forty-two (42) days, for a total jail credit of one hundred sixty-two (162) days. The defendant shall not receive credit for any other elapsed probationary time due to his violations of his probation. It is further ordered that pursuant to MCA 46-18-202(2), the defendant not be considered eligible for parole until he has successfully completed the inpatient chemical dependency treatment program at the Montana State Prison. The Court finds that the defendant has shown an unwillingness or inability to complete alcohol treatment and remains a danger to society. It is recommended that the defendant not be considered eligible for parole until he has successfully completed mental health and anger management counseling at the Montana State Prison. The Court further orders that the suspended portion of the sentence shall be upon the conditions as stated in the June 28, 1995 judgment. The defendant shall continue to be responsible for restitution as previously ordered to Gladys Owen, 1305 Rocky Point Road, Poison, Montana, in the amount of Forty-Five Dollars ($45.00). The defendant shall continue to be responsible for the fine and surcharge as previously ordered in the amount of Three Hundred Forty-Five Dollars ($345.00). The defendant continue to be responsible for the mandated supervisory fee of $120.00 per year, prorated at $10.00 per month, for the number of months under supervision. Payments on the fee shall be made in the amount of $30.00 per quarter.

On October 19, 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.

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.

DATED this 1st day of November, 1995.

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

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Randy Eastvold for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. David Allan Filori, Defendant.
    NO. 11411 DECISION
   On June 7, 1995, it was the judgment of the Court that David Alan Filori is hereby committed to the Department of Corrections for a term of fifteen (15) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. 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. That the defendant shall reimburse Missoula County through the Clerk of the District Court for his court appointed attorney in the amount of One Hundred Dollars ($100.00), according to a schedule as set by his Probation Officer. That the defendant shall pay a fee through the Clerk of the District Court in the amount of Twenty Dollars ($20.00), according to a schedule as set by his Probation Officer, to go to the County Attorney Surcharge Fund as provided in Section 46-18-236, M.C.Á. That the defendant shall pay the cost of prosecution through the Clerk of the District Court in the amount of One Hundred Dollars ($100.00), according to a schedule as set by his probation officer. That the defendant shall pay a fine to go to the community service program in the amount of Eighty-Five dollars ($85.00). Said fine shall be paid through the Clerk of the District Court and according to a schedule as1 set by his probation officer. That the defendant shall pay a probationary supervision fee in the amount of Ten Dollars ($10.00) per month or One Hundred Twenty dollars ($120.00) per year, pursuant to Section 46-23-1011, M.C.A., on a schedule to be determined by his Probation Officer. The fee shall be paid through the Clerk of the District Court. Defendant shall receive credit for time served at Missoula County Jail from December 14,1994, through date of sentencing, June 7, 1995, in the amount of one hundred seventy-five (175) days.

On October 20, 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 Johnathon Kudrna, 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 1st day of November, 1995.

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.

The Sentence Review Division also finds that Judge Larson did consider the individual characteristics of this defendant, specifically his criminal record, his substance abuse problems and the record that he was able to obtain of the defendant’s psychological makeup.

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

Done in open Court this 20th day of October, 1995.

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

The Sentence Review Board wishes to thank Johnathon Kudrna, legal intern of the Montana Defender Project for representing Mr. Filori in this matter.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Andrew Greer, Jr., Defendant.
    NO. DC 94-539 DECISION
   On June 21, 1995, it was ordered that the said Andrew Greer, Jr. be committed to the Department of Corrections and Human Services pursuant to Section 46-18-201(e), Montana Code Annotated to be placed in an appropriate community based program, facility or a State Correctional Institution, for custody, care and treatment for the term of ten (10) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 16 days. It is further ordered that special conditions shall apply as stated in the June 21, 1995 judgment. In the event that defendant shall become gainfully employed, the defendant shall make restitution toward the amount of twenty-nine thousand one hundred ninety-one dollars ($29,191.00). Said restitution shall be made payable in monthly payments on a schedule to be supervised and regulated by the Adult Probation and Parole Field Services and to be made payable to the Clerk of Court, P.O. Box 35030 (Room 704, Courthouse), Billings, Montana, 59107, and the said Clerk of Court is hereby ordered to distribute the money collected to: Allstate Insurance, 1215 North 24th Street, Billings, Montana 59102, $29,191.00. The defendant is further notified that the law imposed upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year pro-rated at Tan Dollars ($10.00) per month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to Statute 46-18-236, Montana Code Annotated. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County.

DATED this 1st day of November, 1995.

On October 19, 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 Josh VanDeWetering, Deputy County Attorney from Billings.

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 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Christopher Shawn Haegen, Defendant.
    NO. 11239 DECISION
   On July 26, 1995, the Court found the defendant in violation of the conditions of his suspended sentences and it is the judgment of the Court that defendant’s prior suspended sentences are hereby revoked and that the defendant be and he is hereby committed to the Department of Corrections for a term of ten (10) years on each count for suitable placement. The sentences shall run concurrently with each other. The Court finds that the defendant is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this Order, except that he shall receive credit from August 1, 1994, through September 19, 1994; and from July 9, 1995, through date of sentencing, July 26, 1995, for sixty-eight (68) days jail time which he has previously served.

On October 19, 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.

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.

The Sentence Review Division finds that the time spent incarcerated in Minnesota was pursuant to a violation of Minnesota law. It is appropriate that Mr. Haegen not be given credit for such time upon his Montana sentence.

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

DATED this 1st day of November, 1995.

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Christopher Haegen for representing himself in this matter.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Christopher A. Hale, Defendant.
    NO. DC 93-369 DECISION
    DATED this 1st day of November, 1995.
   On March 4, 1994, it was ordered that the said defendant be punished by imprisonment in the Montana State Prison for the term of ten (10) years for the offense of Forgery (Felony). Defendant shall receive credit for time spent in the Yellowstone County Detention Facility from January 3, 1994 through March 4, 1994, for 50 days. The court recognizes that defendant presents a hazard whenever he is behind the wheel of an automobile; therefore defendant’s driving privileges are revoked for the full ten (10) years term of this sentence. It is further ordered that defendant not be eligible for parole until the defendant has successfully completed the alcohol and chemical dependency treatment programs available. The defendant shall continue with an aftercare program as developed through said treatment and shall not terminate aftercare without prior approval from his Supervising Officer. It is further ordered that the execution of the last two (2) years of said prison sentence this day imposed on said defendant is suspended, and said defendant is hereby placed on probation for the last two (2) years of said period of ten (10) years, and the court retains jurisdiction of said defendant in the above-entitled cause during the entire term of said imprisonment above-mentioned, and the last two (2) years of said prison sentence is suspended upon conditions as stated in the March 4, 1994 judgment.

On October 19, 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 Josh VanDeWetering, Deputy County Attorney from Billings.

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

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

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

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Christopher A. Hale for representing himself in this matter and also to Josh VanDeWetering, Deputy County Attorney from Billings for representing the State.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Christopher A. Hale, Defendant.
    NO. DC 93-373 DECISION
   On March 4, 1994, the previous sentence dated the 16th day of December, 1993, was duly revoked and the defendant was resentenced for the crime of Forgery (Felony). Wherefore, it is ordered, adjudged and decreed that the said Christopher Hale be punished by imprisonment in the Montana State Prison for the term of ten (10) years to run consecutively with the sentence received in criminal cause number DC 93-369. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, from January 3, 1994 through March 4, 1994, for 50 days. It is further ordered that defendant not be eligible for parole until the defendant has successfully completed the alcohol and chemical dependency treatment programs available. The defendant shall continue with an aftercare program as developed through said treatment and shall not terminate aftercare without prior approval from his Supervising Officer. It is further ordered that the execution of the last two (2) years of said prison sentence this day imposed on said defendant, as hereinabove set forth, be and the same hereby is suspended, and said defendant is hereby placed on probation for the last two (2) years of said period of ten (10) years to run consecutively with the sentence received in criminal cause number DC 93-369, and the Court retains jurisdiction of said defendant in the above-entitled cause during the entire term of said imprisonment above-mentioned, and the last two (2) years of said prison sentence is suspended upon conditions as stated in the March 4, 1994 judgment. It is further ordered that the said Christopher Hale’s driver’s license and/or driving privilege is hereby suspended or revoked for the term of this sentence. No occupational license is recommended. It is further ordered, adjudged and decreed that if the defendant fails to comply with any of the above-conditions, a bench warrant of arrest will he issued, the defendant apprehended, and the said defendant will be required to appear before this Court for further proceedings.

On October 19, 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 Josh VanDeWetering, Deputy County Attorney from Billings.

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

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

DATED this 1st day of November, 1995.

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

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

The Sentence Review Board wishes to thank Christopher A. Hale for representing himself in this matter and also to Josh VanDeWetering, Deputy County Attorney from Billings for representing the State.


text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.
    STATE OF MONTANA, Plaintiff, vs. Darren E. Hopper, Defendant.
    NO. DC 92-237 DECISION
    DATED this 1st day of November, 1995.
   On July 7, 1995, it was the order and sentence and judgment of this Court as follows: 1. The Order Deferring Imposition of Sentence entered by this Court on October 18, 1993, is revoked. For the offense of Criminal Mischief, the defendant is committed to the Department of Corrections for a period of ten (10) years. 2. The defendant shall be given credit for as many days as the defendant shall serve at the Gallatin County Detention Center from July 6,1995, until he is transported to the Montana State Prison by the Gallatin County Sheriff. Upon his release to probation or parole from the Montana State Prison, the defendant shall pay restitution in the amount of $2,356.38 to the Clerk of the District Court of the Eighteenth Judicial District, 615 South 16th, Bozeman, Montana. Restitution shall be paid by the defendant in regular monthly payments and a schedule of restitution shall be arranged for the defendant upon his release from the Montana State Prison through the defendant’s supervising parole officer.

On October 19, 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.

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

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

Done in open Court this 19th day of October, 1995.

Hon. John Warner, Chairman, Hon. Ted O. Lympus, Member, Hon. Jeffrey M. Sherlock, Member.

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