author: JUSTICE HUNT JUSTICE NELSON

text:
    JAMES MOODY, Plaintiff and Appellant, v. NORTHLAND ROYALTY CO., Defendant and Respondent.
    No. 97-127.
    Submitted on Briefs June 12, 1997.
    Decided December 12, 1997.
    54 St.Rep. 1317.
    286 Mont. 89.
    951 P.2d 18.

      For Appellant: Jeff Lynch, Lynch Law Firm, Great Falls.
    For Respondent: Robert J. Emmons, Emmons & Sullivan, Great Falls.
   JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the Ninth Judicial District Court, Glacier County. On June 6,1996, the District Court entered an order dismissing Appellant James Moody’s (Appellant) second amended complaint with prejudice. On February 4,1997, Appellant filed a notice of entry of judgment. From this, Appellant appeals. We reverse and remand with instructions.

The issues raised on appeal are as follows:

1. Does this Court have appellate jurisdiction over this case?
2. Did the District Court err under Rule 2, Uniform District Court Rules, when it granted Respondent’s motion to dismiss?

BACKGROUND

The procedural history of this case is convoluted. On March 23, 1995, Appellant filed a complaint against Respondent Northland Royalty Co. (Respondent), alleging he had been wrongfully discharged from his employment. Appellant filed a second amended complaint on April 16,1996. Respondent moved to dismiss the action on May 6, 1996, but it did not file a supporting brief that same day. Four days later, on May 10, 1996, Respondent filed a two-page document entitled “Respondent’s Answer To Appellant’s Second Amended Complaint.” Appellant did not respond to Respondent’s motion.

On June 6, 1996, the District Court granted Respondent’s motion and dismissed the entire complaint with prejudice. It treated Respondent’s “answer” as Respondent’s brief in support of the motion to dismiss and further noted that Appellant had not responded to the motion. Respondent did not file a notice of entry of judgment.

On June 10, 1996, Appellant filed a motion for reconsideration, requesting that the court either rescind its order or allow Appellant to respond to Respondent’s motion. Subsequently, on July 1, 1996, before the District Court had ruled on the motion, Appellant filed a notice of appeal. On January 9,1997, this Court dismissed the appeal without prejudice. We held that the motion for reconsideration was actually a Rule 59(g), M.R.Civ.R, motion to alter or amend the judgment according to our decision in Miller v. Herbert (1995), 272 Mont. 132, 135-36, 900 P.2d 273, 275. Once Appellant had filed the Rule 59(g) motion, he could not properly appeal until the District Court had either denied the motion or until the motion was “deemed denied” upon failure of the court to rule within 60 days. Appellant’s notice of appeal, filed prior to the disposal of that motion, was thus premature and had no effect.

We further noted that although Rule 5(a)(4), M.R.App.P., subsequently amended effective October 1,1997, provides that an appellant may refile a notice of appeal after the Rule 59(g) motion has been denied or “deemed denied,” Appellant could not file such an appeal, because the appeal time had long since run. However, because the Respondent had never filed a notice of entry of judgment with respect to the District Court’s dismissal order as required by Rule 77(d), M.R.Civ.R, the time limit for appealing that order had neither begun nor ended. We thus stated that Appellant could refile a notice of appeal.

Respondent still failed to file a notice of entry of judgment. On February 4, 1997, Appellant himself filed a notice of entry of judgment, and filed another notice of appeal. On May 6,1997, the District Court entered its judgment, dismissing the case with prejudice, and on May 7, 1997, Respondent served a notice of entry of judgment.

ISSUE ONE

Does this Court have appellate jurisdiction over this case?

In our January 1997 order dismissing Appellant’s first appeal as premature, we stated that because Respondent had never filed a notice of entry of judgment as required by Rule 77(d), M.R.Civ.R, Appellant could “therefore still properly and timely refile with this Court a notice of appeal of the District Court’s dismissal order.”

Respondent argues our order was incorrect, because a notice of entry of judgment is never required when a Rule 59(g), M.R.Civ.R, motion has been filed. He contends that the appeal time ran from the date the Rule 59(g) motion was deemed denied. Because no notice of appeal was timely filed after the disposal of that motion, this Court lacks appellate jurisdiction.

We need not resolve the Respondent’s argument, because our January 1997 order is law of the case, even if incorrect. The law of the case doctrine “expresses the practice of courts generally to refuse to reopen what has been decided. It expresses the rule that the final judgment of the highest court is the final determination of the parties’ rights.” Scott v. Scott (1997), [283 Mont. 169], 939 P.2d 998, 1001-02 (citing Fiscus v. Beartooth Electric Cooperative, Inc. (1979), 180 Mont. 434, 436, 591 P.2d 196, 197). We have described the doctrine as follows:

The rule is well established and long adhered to in this state that where upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal.

Scott, 939 P.2d at 1002 (citing Fiscus, 591 P.2d at 197). Further, “[w]hether the opinion is right or wrong, it is the law of the case ... and is binding upon us.” Fiscus, 591 P.2d at 198 (citation omitted).

Our prior order stated that Appellant could still timely refile a notice of appeal, which he promptly did on February 4, 1997. That order is law of the case, and we will not revisit it.

Respondent next contends that this Court lacks jurisdiction because Appellant did not pay the $45.00 filing fee required by § 25-1-201(1)(c), MCA, for entry of judgment before he filed the notice of entry of judgment on February 4, 1997. It argues that because Appellant did not pay a fee, no judgment was entered at that time. Therefore, the February 1997 notice of entry of judgment had no legal effect. Respondent points out that judgment was not actually entered until May 1997, when Respondent itself paid the filing fee for entry of judgment and also served a notice of entry of judgment. Accordingly, Appellant’s notice of appeal, filed February 4, 1997, was premature.

We do not agree with Respondent’s argument. First, the filing fee is required on entry of judgment from the prevailing party, which in this case was the Respondent and not the Appellant. Section 25-1-201(1)(c), MCA.

Second, this Court has jurisdiction to hear appeals that are filed prior to the entry of judgment appealed from. Rule 5(a)(2), M.R.App.P., provides:

[A] notice of appeal filed after the announcement of a decision or order but prior to the time that the appeal period begins to run under subsection (a)(1) of this Rule 5, i.e., before the entry of the order or judgment appealed from or the service of the notice of entry of judgment as the case may be, shall be treated as filed after such entry and on the day thereof.

Thus, even though judgment was not entered until May 6,1997, after Appellant had already filed the notice of appeal, we treat the notice as though filed “after such entry and on the day thereof.” Rule 5(a)(2), M.R.App.P.

Furthermore, as this Court has already held, we will not revisit whether in fact Appellant was entitled to refile a notice of appeal on the basis that no notice of entry of judgment had been entered as of January 1997.

ISSUE TWO

Did the District Court err under Rule 2, Uniform District Court Rules, when it granted Respondent’s motion to dismiss?

The District Court dismissed Appellant’s second amended complaint on the grounds that Appellant had not responded to Respondent’s motion to dismiss in the time permitted by Rule 2, Unif.Dist.Ct.R., and that therefore the motion was deemed to be well-taken. The District Court did not address the merits of Respondent’s motion.

Appellant raises two arguments in support of his contention that the District Court erred. Both center on the parties’ respective obligations to file briefs in connection with the motion to dismiss, and both involve Rule 2, Unif.Dist.Ct.R., which provides in part:

(a) Upon filing a motion or within five days thereafter, the moving party shall file a brief. The brief may be accompanied by appropriate supporting documents. Within ten days thereafter the adverse party shall file an answer brief which also may be accompanied by appropriate supporting documents. Within ten days thereafter, movant may file a reply brief or other appropriate responsive documents.
(b) Failure to file briefs. Failure to file briefs may subject the motion to summary ruling. Failure to file a brief within five days by the moving party shall be deemed an admission that the motion is without merit. Failure to file an answer brief by the adverse party within ten days shall be deemed an admission that the motion is well taken. Reply briefs by movant are optional, and failure to file will not subject a motion to summary ruling.

We have interpreted this rule as allowing the lower court discretion to either deny or grant unsupported or unanswered motions. In re Marriage of Grounds (1993), 256 Mont. 397, 403, 846 P.2d 1034, 1038 (unsupported motion); Maberry v. Gueths (1989), 238 Mont. 304, 309, 777 P.2d 1285, 1289 (unanswered motion). Hence, we will not overturn the District Court’s decision absent an abuse of discretion. However, the question as to whether a “brief’ has been filed within the meaning of Rule 2, Unif.Dist.Ct.R., presents a question of law. This Court reviews issues of law to determine whether the lower court’s application or interpretation of the law is correct. Hollister v. Forsythe (1995), 270 Mont. 91, 93, 889 P.2d 1205, 1206.

Appellant argues that Respondent did not file a brief in support of the motion to dismiss within five days as required by Rule 2(a), Unif.Dist.Ct.R. He reasons that this failure should be deemed an admission that the motion was without merit and he was therefore not obligated to respond. Rule 2(b), Unif.Dist.Ct.R. Respondent counters, and the District Court agreed, that the document labeled “Respondent’s Answer to Appellant’s Second Amended Complaint,” which was filed four days after the motion was filed, was in fact a supporting brief.

For purposes of characterizing post-judgment motions, this Court has generally held that the substance, not the caption, of the document controls. See, e.g., Miller v. Herbert (1995), 272 Mont. 132, 136, 900 P.2d 273, 275 (“We shall look to the substance of a motion, not just its title, to identify what motion has been presented.”) However, we make a distinction for those types of documents which have such procedural significance that the label or title of the document is significant to the recipient. Examples of such documents are a summons, requests for admissions, and briefs in support of motions to dismiss. All such documents require a response from the recipient within a fixed period of time, and failure to provide the appropriate response within that time has substantive consequences.

In the event that an appearance is not made within twenty days from the date on which a summons is served, a party’s default may be entered. Rule 55(a), M.R.Civ.R See also Rule 12, M.R.Civ.P.; § 25-3-401, MCA. In the event that requests for admissions are not answered within thirty days, the facts the party is requested to admit are deemed true. Rule 36(a), M.R.Civ.P. In the event that a motion to dismiss is supported by a brief within five days, the adverse party’s failure to file an answer brief is deemed an admission that the motion is well-taken. Rule 2(b), Unif.Dist.Ct.R.

In the regular course of office practice, an attorney attaches different procedural significance to a document entitled “written interrogatories” than he or she would to a document entitled “requests for admissions.” Likewise, an attorney attaches different procedural significance to a document entitled “answer” than to a document entitled “brief in support of motion to dismiss.” A motion to dismiss without a supporting brief is deemed to be without merit. However, when a motion to dismiss is supported by a brief, it is deemed well-taken unless the adverse party files a brief in opposition. Rule 2(b), Unif.Dist.Ct.R.

Written interrogatories are not routinely treated with the same sense of urgency by a practicing attorney that requests for admissions stimulate. Likewise, “answers” are not treated with the same sense of urgency as briefs in support of motions to dismiss.

For these reasons, this Court requires that those documents which have procedural significance beyond the merits of their content to be correctly labeled before the recipient can be held to have defaulted for failure to file a timely response. Otherwise, the party filing the misleading document, whether inadvertently or intentionally, would benefit from his or her own error.

We hold that the District Court erred when it granted Respondent’s motion to dismiss on the basis that Appellant had not filed an answer brief. Respondent’s motion was not supported by a properly identified brief, and unless, on remand, leave is given by the District Court to correct that error, the motion is deemed, at this point, to be without merit.

Reversed and remanded.

JUSTICES REGNIER, LEAPHART and TRIEWEILER concur.

JUSTICE NELSON

specially concurs and dissents.

I concur with our discussion of Issue 1; I dissent from our discussion of Issue 2.

Regardless of how it was labeled, it is inconceivable to me that any attorney could read the document filed by Respondent and conclude that it was anything other than a brief. Even a cursory glance at the “answer” filed in this case would have revealed that fact.

We have held that it is the substance of a document that controls, not its caption. See Miller v. Herbert (1995), 272 Mont. 132, 136, 900 P.2d 273, 275 (‘We shall look to the substance of a motion, not just its title, to identify what motion has been presented.”) In substance, the document at issue here is clearly a brief regardless of how it was captioned. Respondent’s “answer” neither admits nor denies any of the allegations contained in the second amended complaint. Instead, the document sets forth the Respondent’s arguments, analysis and supporting case and statutory authority as to why the action should be dismissed; this document was filed four days after the Respondent filed its motion to dismiss. There is no evidence that Respondent intended to trick or mislead the Appellant. Rather, it appears that Respondent simply mis-captioned its response brief — an error merely of form, not of substance.

From whole cloth, we have now created an exception to Miller. We have also ignored the statutory principal underlying that case — “[t]he law respects form less than substance.” Section 1-3-219, MCA. Now, “documents which have a procedural significance beyond the merits of their content” must be correctly labeled before the recipient can be held to have defaulted for failure to file a timely response. Apparently, a summons, a brief in support of a motion to dismiss and requests for admissions fall into this category, while, an answer and written interrogatories do not. Not surprisingly, the majority cites no authority for this arbitrary categorization. There is none. In fact, we have stated the contrary — i.e., that “[w]e disregard the terminology in the title ofthe summons. ...’’ Association of Unit Owners v. Big Sky (1986), 224 Mont. 142, 148, 729 P.2d 469, 472. Very recently, in discussing this decision we noted that “in [Association of Unit Owners] the content of the summons was more important than its title.” Yarborough v. Glacier County (1997), [285 Mont. 494], 948 P.2d 1181, 1183.

Until we amend the Rules of Civil Procedure to provide otherwise, it is my opinion that all pleadings, motions and other documents provided for by those rules are procedurally significant, as are the time frames that govern their filing. That is one of the underlying premises of Rule 11, M.R.Civ.R, if not the entirety of the Rules themselves. Moreover, I do not believe that it is the obligation of this or of any other court in this State to hand-hold those members of the bar who cannot tell the difference between an answer and a brief.

The District Court was absolutely correct in its decision. I would affirm.

CHIEF JUSTICE TURNAGE and JUSTICE GRAY concur in the foregoing concurrence and dissent.


source: Caselaw Access Project

license: Public Domain

text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Wayne Alan Partin, Defendant.
    NO. DC 94-376 DECISION
    DATED this 11th day of September, 1997.
   On January 8, 1996, it was therefore ordered, adjudged and decreed that the said Wayne Partin be committed to the Department of Corrections for the offense of Criminal Possession of Dangerous Drugs (Felony) 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 Fifty-Two (52) months to run concurrently with any pending sentence. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 4 days. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated, plus the sum of Five Dollars ($5.00) for Court Automation Surcharge. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty-Five Dollars ($25.00) to the Treasurer of this County.

On August 22, 1997, 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.11 (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 22nd day of August, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Richard Phillips and Alternate Member, Hon. Jeff Langton

The Sentence Review Board wishes to thank Wayne Alan Partin for representing himself in this matter.


text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.
    STATE OF MONTANA, Plaintiff, vs. Elmer D. Perry, Defendant.
    NO. DC 96-33 DECISION
    DATED this 11th day of September, 1997.
   On September 27, 1996, it was the sentence and judgment of this court as follows: 1. The court finds the defendant guilty of Count 1: Driving Under the Influence of Alcohol, Fourth or subsequent offense, a Felony, in violation of Section 61-8-401, MCA. 2. For the offense of Driving Under the Influence of Alcohol, a Felony, the defendant shall serve a period of eight years at the Montana State Prison in Deer Lodge, Montana. 3. The defendant shall receive credit for 214 days previously served at the Gallatin County Detention Center from February 11, 1996, through September 12, 1996, and shall receive credit at the Gallatin County Detention Center after September 12,1996, until his transportation to the Montana State Prison by the Gallatin County Sheriff. The Court waives the fine and fees. 4. The court finds the defendant guilty of Count 2: Displaying License Plates Issued to Another Vehicle, a Misdemeanor, in violation of Section 61-3-301(3) MCA. 5. For the offense of Displaying License Plates Issued to Another Vehicle, the Court waives the fine and fees; 6. The court finds the defendant guilty of Count 3: Driving without Valid Insurance in effect, Third or subsequent offense, a Misdemeanor, in violation of Section 61-6-301(4) MCA. 7. For the offense of Driving without Valid Insurance in effect, Third or subsequent offense, the Court sentences the defendant to six (6) months in the Gallatin County Detention Center and shall receive credit for time served. The court waives the fine and fees; 8. The court finds the defendant guilty of Count 4: Habitual Traffic Offender Operating a Motor Vehicle, a Misdemeanor, in violation of Section 61-11-213, MCA, a Misdemeanor, in violation of Section 61-6-301(4) MCA. 9. For the offense of Habitual Traffic Offender Operating a Motor Vehicle, the Court sentences the defendant to six (6) months in the Gallatin County Detention Center and shall receive credit for time served. The Court waives the fine and fees; 10. The sentences on the misdemeanors shall run concurrently with Count 1: Driving Under the Influence, a Felony.

On August 21, 1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by attorney Daniel Buckley. 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 21st day of August, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Richard Phillips and Alternate Member, Hon. Jeff Langton

The Sentence Review Board wishes to thank attorney Daniel Buckley for representing Elmer D. Perry in this matter.


text:
    FROM: The District Court of the 1st Judicial District. County of Lewis & Clark.
    STATE OF MONTANA, Plaintiff, vs. Bruce R. Purdom, Defendant.
    NO. BDC 96-261 DECISION
    DATED this 1st day of October, 1997.
   On March 20, 1997, it was ordered, adjudged and decreed that for the offense of Count I - DUI, a felony, the defendant is sentenced to Montana Department of Corrections for a period of ten (10) years, with two (2) suspended, upon the conditions set forth in the March 20, 1997 judgment. The Department may place the defendant into an appropriate community based program, facility or a State correctional institution, with the Court’s recommendation that the defendant be placed in a pre-release center, if eligible. It is further ordered, adjudged and decreed that for the offense of Count II - Driving While License is Suspended/Revoked, a misdemeanor, the defendant is sentenced to the Lewis & Clark County Jail for a period of ten (10) days, with all that time suspended upon the conditions set forth in the March 20, 1997 judgment. The foregoing sentences shall run concurrently with each other. Conditions of defendant’s parole/probation are stated in the March 20, 1997 judgment. The defendant is granted 109 days’ credit for time served prior to sentencing.

On August 21, 1997, 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 deputy county attorney Michael Menahan.

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 21st day of August, 1997.

Alternate Chairman, Hon. Robert Boyd, Member, Hon. Richard Phillips and Alternate Member, Hon. Jeff Langton

The Sentence Review Board wishes to thank Bruce R. Purdom for representing himself in this matter and also deputy county attorney Michael Menahan for representing the State.


text:
    FROM: The District Court of the 1st Judicial District. County of Lewis & Clark.
    STATE OF MONTANA, Plaintiff, vs. Charles Lee Reynolds, Jr., Defendant.
    NO. BDC 95-126 DECISION
    DATED this 1st day of October, 1997.
   On April 3,1997, it was ordered, adjudged and decreed that for the offense of Theft (Common Scheme), a felony, in Cause No. BDC 95-126, the defendant is sentenced to Montana State Prison for a period of ten (10) years. The Court recommends defendant be placed in a pre-release center. If Montana State Prison deems it appropriate, the defendant may serve his sentence at another prison. Conditions of defendant’s parole/probation are stated in the April 3, 1997 judgment. On May 29, 1997, in an addendum to Judgment, the judgment imposed herein on April 3, 1997, shall include the following: The defendant is granted forty-eight (48) days’ credit for time served prior to sentencing.

On August 21, 1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by attorney Charles Petaja. The state was represented by deputy county attorney Michael Menahan.

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. It is the decision of the Honorable Robert Boyd and the Honorable Jeff Langton that the sentence shall be affirmed with the requirement that the defendant complete the anger management course at Montana State Prison.

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.

Alternate Chairman, Hon. Robert Boyd, Alternate Member, Hon. Jeff Langton.

The Honorable Richard Phillips dissents. Judge Phillips would suspend five (5) years but require the defendant to complete the anger management course given by Montana State Prison.

Member, Hon. Richard Phillips.

Done in open Court this 21st day of August, 1997.

The Sentence Review Board wishes to thank attorney Charles Petaja for representing Charles Reynolds in this matter and also deputy county attorney Michael Menahan for representing the State.


text:
    FROM: The District Court of the 1st Judicial District. County of Lewis & Clark.

      STATE OF MONTANA, Plaintiff, vs. Shawn K. Smaage, Defendant.
    NO. BDC 94-249 DECISION
    DATED this 1st day of October, 1997.
   On August 24, 1995, it was ordered, adjudged and decreed that for the offense of Criminal Endangerment, a felony, the defendant is sentenced to ten (10) years at Montana State Prison. It is further ordered, adjudged and decreed that the defendant is adjudged a dangerous offender based upon findings as stated in the August 24,1995 judgment. The defendant shall serve a minimum of three (3) years at Montana State Prison before becoming eligible for parole. The defendant shall not be eligible for parole until he successfully completes chemical dependency treatment and anger management at the prison, and a pre-release program, to include continued chemical dependency care, moral reconation therapy and a reasonable effort to obtain a G.E.D., if the defendant has not done so. Any parole granted the defendant shall include conditions as stated in the August 24, 1995 judgment. The defendant is granted 24 days’ credit for time served prior to sentencing.

On August 21, 1997, 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 Deputy County Attorney Michael Menahan.

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 21st day of August, 1997.

Alternate Chairman, Robert Boyd, Member, Hon. Richard Phillips and Alternate Member, Hon. Jeff Langton

The Sentence Review Board wishes to thank Shawn K. Smaage for representing himself in this matter and also Deputy County Attorney Michael Menahan.


text:
    FROM: The District Court of the 17th Judicial District. County of Phillips.
    STATE OF MONTANA, Plaintiff, vs. Ernest Emmett Strid, Defendant.
    NO. DC 96-018 DECISION
   On March 25, 1997, it was ordered that for the offense of Count I, Driving or in actual physical control of a vehicle while under the influence of alcohol (4th offense), a felony, this court orders that the defendant be committed to the Department of Corrections of a period of six (6) years, with the last four (4) years to be suspended on the terms and conditions set forth below. The defendant shall be given credit for one day served in the Phillips County Jail. This Court strongly recommends that the defendant be placed in the Intensive Supervision Program in Billings, Montana, so that the defendant can continue to reside and work in that community. This Court also recommends that the defendant receive an in-depth chemical dependency evaluation and that he be required to follow all recommendations of that evaluation prior to being released on parole. The defendant shall also pay afine of $1,000.00. This amount shall be paid to the Phillips County Clerk of Court no later than six (6) months prior to the completion of this six year sentence. For the offense of Count II: Driving while privilege to do so is suspended or revoked, a misdemeanor, the defendant is sentenced to the Phillips County Jail for a period of six (6) months. This sentence shall be served concurrently with the sentence given for Count I. The defendant shall pay a fine of $250.00. This amount shall be used to reimburse Phillips County for the cost of the defendant’s court-appointed attorney. This amount shall be paid to the Phillips County Clerk of Court no later than six (6) months prior to the completion of the sentence given the defendant in Count I. The defendant shall be subject to terms and conditions while on parole or serving the suspended portions of his sentence which are stated in the March 25,1997 judgment.

DATED this 11th day of September, 1997.

On August 22, 1997, 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 22nd day of August, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Richard Phillips and Alternate Member, Hon. Jeff Langton

The Sentence Review Board wishes to thank Ernest Strid for representing himself in this matter.


text:
    FROM: The District Court of the 6th Judicial District. County of Park.
    STATE OF MONTANA, Plaintiff, vs. Richard Lee Turner, Jr., Defendant.
    NO. CR 96-128 DECISION
   On February 18, 1997, the defendant, Richard Turner, Jr., was sentenced to Montana State Prison for a period of five (5) years for the offense of felony driving under the influence of alcohol. Defendant shall not be eligible for parole until he completes the chemical dependency program at Montana State Prison. Defendant’s conditions of parole shall include all standard conditions of parole and terms and conditions as stated in the February 18,1997judgment. That defendant shall be given credit for three (3) days in the Park County Jail.

DATED this 11th day of September, 1997.

On August 21, 1997, 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 21st day of August, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Richard Phillips and Alternate Member, Hon. Jeff Langton

The Sentence Review Board wishes to thank Richard Lee Turner for representing himself in this matter.


text:
    SEPTEMBER 1997 CALENDAR
    FROM: The District Court of the 1st Judicial District. County of Lewis & Clark.
    STATE OF MONTANA, Plaintiff, vs. Lori Lin Aggieri, Defendant.
    NO. BDC 90-45 DECISION
    DATED this 29th day of September, 1997.
   On April 24, 1997, it was ordered that for the offense of Issuing a Bad Check (Common Scheme), a felony, the defendant is sentenced to the Women’s Correctional Center for ten (10) years. The defendant is granted no time for street time. The defendant is granted 27 days’ credit for time served prior to sentencing.

On September 12,1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

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

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

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

Done in open Court this 12th day of September, 1997.

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

The Sentence Review Board wishes to thank Lori Lin Aggieri for representing herself in this matter.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Dawn Ann Gauchay, Defendant.
    NO. DC 96-009(A) DECISION
   On February 9, 1996, it was the judgment of this court that the defendant be committed to the Department of Corrections for forty (40) years for appropriate placement by that agency. Given the nature of her offense and this Court’s concerns about her future behavior, the defendant is to be ineligible for parole until she completes all treatment programs deemed appropriate for her rehabilitation and is no longer considered a danger to others by her supervising officers and treatment providers. Should the defendant be allowed parole and/or probation, conditions are imposed of her release from custody which are stated in the February 9,1996judgment. The defendant is to be given credit for one hundred forty-one (141) days served in the Flathead County Detention Center pending final disposition in this matter.

On April 18,1997, 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 Julie Weddle, legal intern of the Montana Defender Project. The State was represented by Ed Corrigan, Flathead Deputy County Attorney.

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

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 with the modification that the defendant receive a complete psychological evaluation by Warm Springs State Hospital personnel, and after that time, appropriate placement for the defendant will be determined by the Department of Corrections.

Reasons for the amendment are because it does not appear that appropriate placement was made initially, based upon the defendant’s age and the limited amount of background information which was made available to the Department of Corrections.

On June 17, 1997, Lois Adams, Attorney for Department of Corrections filed a Motion for Rehearing in regards to defendant, Dawn Ann Gauchay. On June 20,1997, Jeff Renz, Attorney for Petitioner, filed a Petitioner’s Response to Respondent’s Motion for Rehearing. After review of both motion and response, Judge Baugh, who was acting chairman at the April 18,1997 Sentence Review hearing, granted a rehearing for Dawn Ann Gauchay.

On September 12, 1997, the rehearing of the April 18, 1997 Sentence Review decision of Dawn Ann Gauchay was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by attorney Jeff Renz. The state was represented by Lois Adams, attorney for the Department of Corrections.

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

After review of brief and arguments, it is the decision of the Sentence Review Board to deny the petition for rehearing. The Sentence Review board does not have jurisdiction in this matter. The board’s ruling in this case which was issued May 6, signed the 30th of April, stated the defendant receive a complete psychological evaluation by Warm Springs State Hospital personnel. The Department of Corrections can engage other mental health professionals to conduct the evaluation if they do not want to use professionals from Warm Springs State Hospital. However, it is important that an evaluation be completed so the appropriate placement decisions are made for this defendant.

DATED this 29th day of September, 1997.

Done in open Court this 12th day of September, 1997.

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


author: JUSTICE TRIEWEILER

text:
    SHERRY ROBINSON SCHMIDT, Individually and as Personal Representative of the Estate of Steven Daniel Schmidt, Deceased, Plaintiff and Appellant, v. STATE OF MONTANA, Defendant and Respondent
    No. 97-166.
    Submitted on Briefs November 13, 1997.
    Decided December 15, 1997.
    54 St.Rep. 1321.
    286 Mont. 98.
    951 P.2d 23.

      For Appellant: Thomas A. Budewitz, Attorney at Law, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Paul D. Johnson, Assistant Attorney General; Agency Legal Services; Helena.
    For Amicus Curiae: Norman H. Grosfield, Attorney at Law, Helena (for Montana Association of Comities).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiff, Sherry Robinson Schmidt, filed a complaint against the defendant, State of Montana, in the District Court for the First Judicial District in Broadwater County, in which she alleged that the death of her husband, Steven Daniel Schmidt, was caused during the course of his employment with the State of Montana by the State’s wrongful conduct. She sought damages on behalf of his estate and his survivors as a result of his injuries and death. The District Court granted summary judgment to the State based on the exclusive remedy provision of the Workers’ Compensation Act. Schmidt appeals. We affirm the judgment of the District Court.

The issue on appeal is whether the District Court erred when it dismissed Sherry Robinson Schmidt’s complaint by summary judgment.

FACTUAL BACKGROUND

Steven Daniel Schmidt died in an accident that occurred on July 21, 1992, while doing maintenance work for the Department of Fish, Wildlife and Parks, a department of the State of Montana. At the time of his death, Steven and a co-employee, John Stoner, were removing bundles of tires which had been connected by a steel cable to form a breakwater in Canyon Ferry Lake near the Silos Campground in Broadwater County. Steven’s function was to pull the tires from the water using a tractor provided by his employer, and tow them a short distance to a location from which a recycler could pick them up.

Work had begem on the project the day before Steven’s injury and death. The tractor being used was a 1960 Massey-Ferguson Model 90 which had been acquired by Fish, Wildlife and Parks from the State Highway Department the previous winter. Bill Hahn, the maintenance supervisor for Region VIII of Fish, Wildlife and Parks, and Steven’s supervisor, had made the decision to use the tractor for the tire removal project and assigned Steven and Stoner to do the work.

On the second day of the project, while Steven was towing a bundle of connected tires from the lake or beach to the pick-up site, the weight of the load caused the front end of the tractor to rise off the ground and eventually turn completely over, pinning Steven beneath the tractor. Steven died at the scene of the accident from the injuries that he sustained.

The Department is insured against claims for workers’ compensation by the State Compensation Insurance Fund. Sherry Schmidt filed a claim for benefits based on her husband’s injuries and death, and that claim was accepted.

Sherry also filed this action in the District Court to recover common law damages as a result of her husband’s death. She alleged that Steven was killed because his supervisor, Bill Hahn, knowing that there was a high probability of injury to him, deliberately and intentionally directed him to perform work in conscious disregard of that high probability of injury and, therefore, that the State is liable for damages to Steven’s estate and his survivors.

In answer to Sherry’s complaint, the State admitted that Steven was killed during the course of his employment with the State of Montana, but denied the rest of her allegations, and affirmatively alleged that since Steven’s employer was covered by the Workers’ Compensation Act, the State was not subject to further liability for damages as a result of his death.

The State moved for summary judgment pursuant to § 39-71-411, MCA, which provides that an employee’s exclusive remedy for injury or death which occurs during the course of employment is to pursue those rights provided for by the Workers’ Compensation Act. The State contended that the exception set forth at § 39-71-413, MCA, does not apply unless there is an intent by a fellow employee to injure a co-worker and, in this case, that no such intent had been established.

In response to the State’s motion for summary judgment, Sherry contended that based on the plain language of § 39-71-413, MCA, the District Court should not require a specific intent to injure, but should follow the “substantial certainty’ rule applied in other jurisdictions and, in this case, that there was a “substantial certainty’ that Steven would be injured because of the circumstances under which he was required to perform his work.

Relying on our prior decisions, the District Court concluded that Sherry had not proven that any employee of the State of Montana had a specific intent to harm Steven and, therefore, that she had not established sufficient facts to remove her claim from the exclusive remedy provision of the Workers’ Compensation Act. For that reason, the District Court granted summary judgment to the State of Montana.

On appeal, Sherry contends that the District Court erred by requiring that she prove a specific intent to injure Steven in order to satisfy the requirements of § 39-71-413, MCA. She contends that the plain language of the statute requires only that she prove that an employee of the State acted intentionally and maliciously and that that requirement is satisfied by proving that Steven was ordered to work under conditions which his employer or supervisor knew created a high probability that he would be injured. She contends that Hahn required Steven to perform his job with inadequate equipment, without adequate safety devices, or training, and in spite of the fact that he was unqualified to do the job and, therefore, that Hahn acted intentionally and maliciously, regardless of the statutory definition of malicious that this Court chooses to apply. She contends that this Court’s prior decisions in Great Western Sugar Co. v. District Court (1980), 188 Mont. 1, 610 P.2d 717, Noonan v. Spring Creek Forest Products, Inc. (1985), 216 Mont. 221, 700 P.2d 623, and Blythe v. Radiometer America (1993), 262 Mont. 464, 866 P.2d 218, misapply the plain language of § 39-71-413, MCA, and should not be followed.

The State responds that this Court’s prior decisions are controlling; that based on those decisions employees or their survivors cannot bring personal injury actions against an employer on the basis of injury sustained during the course of employment unless it can be proven that there was an intent to injure the person on whose behalf the claim is made; and that the undisputed facts establish that there was no intent to injure Steven Schmidt.

STANDARD OF REVIEW

We review a summary judgment de novo to decide if the district court was correct as a matter of law. See Motarte v. Northern Mont. Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785.

Summary judgment is governed by Rule 56(c), M.R.Civ.P, which provides, in relevant part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

In Bruner v. Yellowstone County (1995), 272 Mont. 261, 900 P.2d 901, we established the following sequential burdens:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Bruner, 272 Mont. at 264-65, 900 P.2d at 903 (citations omitted).

DISCUSSION

Did the District Court err when it dismissed Sherry Robinson Schmidt’s complaint by summary judgment?

Section 39-71-411, MCA (1991), known as the exclusive remedy section of the Workers’ Compensation Act, provides in relevant part as follows:

For all employments covered under the Workers’ Compensation Act or for which an election has been made for coverage under this chapter, the provisions of this chapter are exclusive. Except as provided in part 5 of this chapter for uninsured employers and except as otherwise provided in the Workers’ Compensation Act, an employer is not subject to any liability whatever for the death of or personal injury to an employee covered by the Workers’ Compensation Act or for any claims for contribution or indemnity asserted by a third person from whom damages are sought on account of such injuries or death. The Workers’ Compensation Act binds the employee himself, and in case of death binds his personal representative and all persons having any right or claim to compensation for his injury or death ....

An exception to the exclusive remedy of the Workers’ Compensation Act, however, is found at § 39-71-413, MCA (1991), in the case of injuries caused by intentional and malicious acts or omissions. That section provides as follows:

If an employee receives an injury while performing the duties of his employment and the injury or injuries so received by the employee are caused by the intentional and malicious act or omission of a servant or employee of his employer, then the employee or in case of his death his heirs or personal representatives shall, in addition to the right to receive compensation under the Workers’ Compensation Act, have a right to prosecute any cause of action he may have for damages against the servants or employees of his employer causing the injury.

Although the literal language of § 39-71-413, MCA, does not so provide, we have held that an exception to the exclusive remedy pursuant to § -413 does not exist unless it can be shown that the person injuring the employee intended to do so. See Great Western Sugar Co. v. District Court (1980), 188 Mont. 1, 610 P.2d 717.

In Great Western Sugar Co., the plaintiff alleged that he was injured during the course of his employment when he was required by his employer to work with equipment for which he was untrained and unqualified and which the employer knew was extremely hazardous. The District Court refused to dismiss the claim against the plaintiff’s employer, but in the exercise of supervisory control, we held that the exclusive remedy provision of the Workers’ Compensation Act could only be avoided by an intentional tort and that allegations of negligence, no matter how wanton or malicious, are insufficient. See Great Western Sugar Co., 188 Mont. at 7, 610 P.2d at 720. We held that:

[T]he “intentional harm” which removes an employer from the protection of the exclusivity clause of the Workers’ Compensation Act is such harm as it maliciously and specifically directed at an employee, or class of employee out of which such specific intentional harm the employee receives injuries as a proximate result. Any incident involving a lesser degree of intent or general degree of negligence not pointed specifically and directly at the injured employee is barred by the exclusivity clause as a basis for recovery against the employer outside the Workers’ Compensation Act.

Great Western Sugar Co., 188 Mont. at 7, 610 P.2d at 720.

In Millers Mutual Insurance Co. v. Strainer (1983), 204 Mont. 162, 663 P.2d 338, a declaratory judgment action to determine rights and liabilities pursuant to a homeowner’s policy, we held that the language of § 39-71-413, MCA, “refers to an intentional act without regard to intending the results of the act” and, therefore, was not as broad as language in the insured’s homeowner’s policy which excluded coverage for only that bodily injury which is intended. Millers Mutual Ins., 204 Mont. at 166, 663 P.2d at 340. We also held:

In summary, we hold that section 39-71-413, of the Workers’ Compensation Act, permits the filing of a third-party action where acts of an employee are intentional irrespective of whether the results of that act were intended.

Millers Mutual Ins., 204 Mont. at 168, 663 P.2d at 341-42.

However, two years later, in Noonan v. Spring Creek Forest Products, Inc. (1985), 216 Mont. 221, 700 P.2d 623, we ignored our holding in Millers Mutual Ins. and followed our holding in Great Western Sugar Co. The plaintiff in Noonan, as does the plaintiff in this case, advocated adoption of the “substantial certainty” doctrine pursuant to which an employee alleges sufficient facts to establish the intentional tort exception to the exclusivity provision of the Workers’ Compensation Act if he or she can show that the “employer knows or believes that harm is a ‘substantially certain’ consequence of the unsafe workplace” and allows hazards to exist anyway. Noonan, 216 Mont. at 224, 700 P.2d at 625. Even though we agreed that the employer in Noonan had operated a hazardous and dangerous work place which resulted in an unusual number of employee injuries, we reaffirmed that a specific intent to injure the employee was necessary. We declined to adopt the “substantial certainty” doctrine. See Noonan, 216 Mont. at 225-26, 700 P.2d at 626.

More recently, in Blythe v. Radiometer America (1993), 262 Mont. 464, 866 P.2d 218, this Court, by a 4-3 majority, reaffirmed its adherence to the rule established in Great Western Sugar Co. and followed in Noonan. The majority again granted summary judgment to the employer where no proof had been shown that an intent to harm was directed at the specific employee who was injured. In addition, we held that the type of malice necessary to satisfy § 39-71-413, MCA, was that malice described by § 1-1-204(3), MCA, which defines malice as “a wish to vex, annoy, or injure another person,” and not actual malice as defined in § 27-1-221(2), MCA, which provides that a person acts with malice:

[I]f [he] has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and:
(a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or
(b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff.

In dissent to the majority opinion in Blythe, the author of this opinion concluded that the plain language of § 39-71-413, MCA, did not require a specific intent to injure the employee and that it was more reasonable and logical to apply that statutory definition of malice found at § 27-1-221(2), MCA, and that Millers Mutual Ins., not Great Western Sugar Co. or Noonan, more accurately applied the language of § -413 and should be followed in that case. See Blythe, 262 Mont. at 479-80, 866 P.2d at 228 (Trieweiler, J., dissenting).

Sherry, likewise, contends that the plain language of § -413, and our decision in Millers Mutual Ins., allows recovery by an injured employee against his or her employer where the acts of a fellow employee are intentional, irrespective of whether the results were intended. She contends that it makes no difference whether we use the definition of malice provided for in § 27-1-221(2), MCA, or that found at § 1-1-204(3), MCA, because the latter also defines malice as “an intent to do a wrongful act” and that that requirement was satisfied in this case by the employer’s violation of §§ 50-71-201(2) and -203(4), MCA, of the “Montana Safety Act” which require the employer to provide and require “the use of health and safety devices” and “do any other thing reasonably necessary to protect the life, health, and safety of employees.”

Without attempting to reconcile the inconsistencies in our prior decisions, and to further reconcile those decisions with the plain language of § 39-71-413, MCA, we reaffirm our commitment to at least that part of our decision in Great Western Sugar Co. which held that allegations of negligence, no matter how wanton, are insufficient to avoid the exclusive remedy of the Workers’ Compensation Act. We conclude, based on the undisputed facts established in this case, that Sherry has not established that an employee or agent of the State of Montana committed an intentional act with malice, which caused injuries to Steven. We arrive at that conclusion regardless of whether we apply the definition of malice found at § 1-1-204(3), MCA, or that found at § 27-1-221, MCA.

Our conclusion is based on the following summary of the facts which were established in this case:

Hahn, Steven’s supervisor, arrived at the process for removal of the tires from Canyon Ferry Lake after consultation with Steven and his co-worker, John Stoner. He made the decision to use the tractor that was being used because it was one of the better tractors that the Department owned and both Steven and Stoner had operated it before and were familiar with its operation. He selected Steven and Stoner because they were his most competent employees and worked well together.

Hahn had no prior frame of reference for how to do the job and sent Steven to the job with instructions to ease into it and see how things went. There were no standard operating procedures for this type of project. He also told both employees to ease into the job and if they ran into a problem to quit and let him know about the problem. He testified that he assumed the tractor was adequately equipped and did not foresee any serious hazard from the activity in which the employees would be engaged.

When Hahn visited with Steven the morning of the accident he was told by Steven that things were going well and he was having no problems. Neither Steven nor Stoner raised any safety concerns with him during the previous day when he was at the job site. He testified that either employee was free to advise him if things had not been working to their satisfaction, and that they had the option of changing the operation in any way that suited them. Furthermore, if either worker had felt and expressed that they needed additional equipment, he would have done something to procure the equipment.

Stoner, who was Steven’s fellow employee and the only eye witness to the events which preceded Steven’s death, confirmed Hahn’s version of events. He felt that the tractor selected for performance of the task was the safest one available. He testified that it was Steven’s decision to operate the tractor; that Steven was capable of operating the tractor; and that it was Steven who attached to the tractor the chain which was being used. He testified that Steven was performing the job the way he wanted to, and that when the tractor began to tip backward, Steven froze, in spite of Stoner’s instructions to release the clutch or to jump.

Stoner testified that based on his prior observations of Steven operating equipment, he had no concern about him operating the tractor on which he was injured, that he thought he had done a fine job of operating the tractor, and that prior to the accident Steven did not appear to be having any problems with the project he was being asked to perform. Neither did Steven express any concerns about the safety of the tractor or the equipment provided with it prior to his accident. When he left the work site the day before, he stated to Stoner that he thought they had a good system operating and would get a lot done the next day.

In spite of this evidence, Sherry contends that Hahn acted intentionally and maliciously because he knew the tractor was inadequate for the job to which it had been assigned; because Hahn violated the previously mentioned provisions of the “Montana Safety Act”; and because the Department of Labor issued a safety order following the accident which criticized the Department of Fish, Wildlife and Parks for failing to adequately train its employees in the recognition of unsafe conditions and take other safety precautions to avoid the accident. However, Hahn’s previous advice to Steven to release the clutch if the front end began to rise up on the tractor does not establish that he knew the tractor was inadequate for its purpose and maliciously required that Steven use it anyway. Furthermore, assuming a violation of the statutes relied on by Sherry and the omissions noted by the Department of Labor, those violations and omissions would, at most, constitute negligence and not serve as the basis for an intentional tort. For these reasons, we conclude that Sherry has not proven that the State of Montana, through an agent or employee, committed any intentional or malicious act which caused injury to Steven during the course of his employment. Therefore, we conclude that Sherry Schmidt’s complaint is barred by § 39-71-411, MCA, the exclusivity remedy provision of the Workers’ Compensation Act.

We therefore affirm the judgment of the District Court.

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


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Lisa Ikard, Defendant.
    NO. DC 93-452 DECISION
    DATED this 29th day of September, 1997.
   On March 6,1997, it was ordered, adjudged and decreed that the said Lisa Ikard 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 five (5) years to run concurrently with the sentences received in criminal cause numbers DC 92-257 and 93-433. In all other respects, the previous Orders, conditions and reasons of this Court entered on the 7th day of April, 1994 shall remain unchanged and are reimposed and shall continue as if set forth herein. It is the findings of this court pursuant to 46-18-201(4), Montana Code Annotated, the Court shall reject the elapsed time as credit against the sentence for reasons as stated in the March 6,1997judgment.

On September 12,1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

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

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

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

Done in open Court this 12th day of September, 1997.

Acting Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard Phillips Judge Baugh abstained from the decision making process in this hearing.

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


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.
    STATE OF MONTANA, Plaintiff, vs. Lisa Ikard, Defendant.
    NO. DC 92-257 DECISION
    DATED this 29th day of September, 1997.
   On March 6,1997, the previous sentence dated the 7th day of April, 1994, was duly revoked and the defendant was resentenced for the crime of Forgery (FelonyXCommon Scheme). Wherefore, it is ordered, adjudged and decreed that the said Lisa Ikard 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 five (5) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 16 days. In all other respects, the previous Orders, conditions and reasons of this Court entered on the 7th day of April, 1994, shall remain unchanged and are reimposed and shall continue as if set forth herein. It is the finding of this Court pursuant to 46-18-201(4), Montana Code Annotated, the Court shall reject the elapsed time as credit against the sentence for reasons as set forth in the March 6,1997 judgment.

On September 12,1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

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

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

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

Done in open Court this 12th day of September, 1997.

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

Judge Baugh abstained from the decision making process in this hearing.

The Sentence Review Board wishes to thank Lisa Ikard for representing herself in this matter.


text:
    FROM: The District Court of the 13th Judicial District. County of Yellowstone.

      STATE OF MONTANA, Plaintiff, vs. Lisa Ikard, Defendant.
    NO. DC 93-433 DECISION
    DATED this 29th day of September, 1997.
   On March 6,1997, the previous sentence dated the 7th day of April, 1994, was duly revoked and the defendant was resentenced for the crime of Theft (Felony). Wherefore, it is ordered, adjudged and decreed that the said Lisa Ikard 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 Five (5) years to run concurrently with the sentence received in criminal cause number DC 92-257. In all other respects, the previous Orders, conditions and reasons of this Court entered on the 7th day of April, 1994, shall remain unchanged and are reimposed and shall continue as if set forth herein. It is the finding of this Court pursuant to 46-18-201(4), Montana Code Annotated, the Court shall reject the elapsed time as credit against the sentence for reasons as stated in the March 6,1997judgment.

On September 12,1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

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

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

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

Done in open Court this 12th day of September, 1997.

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

Judge Baugh abstained from the decision making process in this hearing.

The Sentence Review Board wishes to thank Lisa Ikard for representing herself in this matter.


text:
    FROM: The District Court of the 21st Judicial District. County of Ravalli.
    STATE OF MONTANA, Plaintiff, vs. Michelle Bernice Jensen, Defendant.
    NO. DC 96-96 DECISION
   On June 4,1997, it was the sentence and judgment of the court as follows: 1. That the defendant, Michelle Bernice Jensen, is guilty of the crime of Attempted Aggravated Assault, a Felony, Section 45-4-103 M.C.A.; 2. That the defendant shall be imprisoned in the Montana State Women’s Correctional Facility at Billings, MT, for a period of ten (10) years, with eight (8) years suspended subject to conditions which are stated in the June 4,1997judgment. The Court hereby directs that the Department make available to the defendant all appropriate psychological counseling and anger management counseling that is available at the prison. The defendant shall receive credit for nine days for jail time served prior to sentencing. It is further ordered that as restitution is collected, the Clerk of Court shall distribute said restitution as follows: $2,742.26 to Angie Breneman, P.O. Box 635, Florence, MT 59833. $1,171.47 to Crime Victims Compensation Program, P.O. Box 201408, Helena, MT 59620-1408 (for reimbursement of awards made to the victim for medical and/or counseling expenses incurred relating to this offense).

DATED this 29th day of September, 1997.

On September 12,1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by attorney David Stenerson. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended from ten (10) years with eight (8) suspended to the Montana State Women’s Correctional Facility to six (6) years deferred. All conditions as stated in the June 4,1997 judgment shall remain the same.

The reasons for the amendment are as follows: The impaired mental capacity exception was clearly applicable under the evidence and should have been considered and addressed on the merits. The defendant has five dependents and no priors of any sort, is clearly remorseful, no weapons were used and she has not been given a chance to pay restitution.

Done in open Court this 12th day of September, 1997.

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

The Sentence Review Board wishes to thank attorney David Stenerson for representing Michelle Jensen in this matter.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Billie Remillard, Defendant.
    NO. ADC 96-394 DECISION
   On June 16, 1997, it was ordered that the defendant, Billie Dee Remillard, is sentenced for the crime of Criminal Possession of Dangerous Drugs, a Felony, to the Department of Corrections for a period of five (5) years. This sentence is to run concurrently with any other sentence presently being served.

On September 12,1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

DATED this 29th day of September, 1997.

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

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

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

Done in open Court this 12th day of September, 1997.

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

The Sentence Review Board wishes to thank Billie Remillard for representing herself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Trinity Simmert, Defendant.
    NO. 12076 DECISION
   On May 12,1997, it was the judgment of the Court that Trinity Simmert be and is hereby committed to the Department of Corrections for a term of ten (10) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the recommendation of the Court that as a condition of any parole or early release that the defendant shall pay restitution through the Clerk of the District Court in the amount of Six Thousand Two Hundred Seventy-two and 63/100 Dollars ($6,272.63). The restitution shall be disbursed as set out in the Restitution List attached to the May 12, 1997 judgment.

On September 12,1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and proceeded Pro Se. The state was not represented.

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

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

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

Done in open Court this 12th day of September, 1997.

DATED this 29th day of September, 1997.

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

The Sentence Review Board wishes to thank Trinity Simmert for representing herself in this matter.


text:
    OCTOBER 1997 CALENDAR
    FROM: The District Court of the 6th Judicial District. County of Park.
    STATE OF MONTANA, Plaintiff, vs. Donald E. Anderson, Defendant.
    NO. CR 95-91 DECISION
    DATED this 10th day of November, 1997.
   On May 7,1997, the defendant, Donald E. Anderson, is sentenced to the Montana Department of Corrections for a period of fifteen (15) years and the last five (5) years of this sentence is suspended. This Court does not mandate the defendant be required to stay at the Montana State Prison for any particular length of time and leaves this decision to the Montana Department of Corrections. However, the Court strongly suggests that defendant be placed in a pre-release center in Billings, Montana as soon as possible to complete both the alcohol counseling that he has started and that he be allowed th enroll in the sex offender treatment program offered by Michael D. Sullivan, M.S.W. The Court believes that defendant will respond much more quickly to sex offender counseling and alcohol treatment at a pre-release center than at Montana State Prison. The defendant shall successfully complete phases I and II of the sex offender treatment before being considered for parole and will thereafter follow all program conditions. Any time during which the defendant spends on probation or parole pursuant to this sentence, he will be subject to terms and conditions as stated in the May 7,1997 judgment.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by attorney Art Thompson. 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 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Richard Phillips and Alternate Member, Hon. Robert Boyd

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


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, vs. Michael P. Barnaby, Defendant.
    NO. ADC 96-033 DECISION
    DATED this 10th day of November, 1997.
   On April 14, 1997, it was therefore ordered, adjudged and decreed, that for the offense of Accountability (Deliberate Homicide), a Felony, the defendant is sentenced to the Montana State Prison for a period of eighty (80) years with no chance of parole eligibility for the first twenty-five (25) years. This sentence shall run concurrently with any other sentence the defendant is serving. If the defendant is released into a community he shall be subject to conditions as stated in the April 14,1997 judgment.

On October 16, 1997, 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.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition for review of sentence shall be dismissed.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips


text:
    FROM: The District Court of the 20th Judicial District. County of Sanders.
    STATE OF MONTANA, Plaintiff, vs. Kirk Wayne Bay, Defendant.
    NO. DC 96-41 DECISION
   On March 11, 1997, it was the judgment of the Court, with respect to Count I - Criminal Possession with Intent to Sell, a felony and Count II - Criminal Possession with Intent to Sell, a felony that the defendant Kirk Wayne Bay is hereby sentenced, for each such count, to a term of twenty (20) years in the Montana State Prison in Deer Lodge, Montana. That, however, ten (10) years of defendant’s sentence for each such count, Count I and II, is hereby suspended on the terms and conditions of probation set forth in the March 11,1997 judgment. It is the judgment of the court, with respect to Count III - Use or Possession of Property Subject to Criminal Forfeiture, a felony, that the defendant Kirk Wayne Bay is sentenced to a term of ten (10) years in the Montana State Prison, no part of which is suspended. Furthermore, it is ordered that the defendant shall forfeit to the Sanders County Drug Fund all of the defendant’s right, title and interest in a 1993 Isuzu Rodeo vehicle, VIN #4S2CY58V7P4313850 and shall further forfeit to the Sanders County Drug Fund all of the contents of said vehicle seized pursuant to the Search Warrant. Further, it is Ordered that the defendant shall sell a 1989 Bayliner boat and trailer currently titled in defendant’s name, and defendant shall apply the proceeds of that sale towards the balance of the lien against the 1993 Isuzu Rodeo vehicle, which lien is in favor of the First State Bank of Thompson Falls, Montana. Defendant shall pay the mandatory Twenty-Five Dollar ($25.00) surcharge for each count. The sentences for all three counts shall run concurrently. Defendant shall receive credit for one (1) day time already served in the Sanders County Jail as of the date of this judgment.

DATED this 5th day of November, 1997.

On October 16, 1997, 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 decision of the Sentence Review Division that the sentence shall be suspended.

In light of the fact there was no pre-sentence investigation done, and it was the defendant’s first felony offense, it is the view of the Sentence Review Division that the sentence be amended.

Done in open Court this 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal.

The Honorable Richard Phillips dissents. It is Judge Phillips opinion that since there was a plea agreement which the defendant agreed with, the sentence should remain the same.

Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Kirk Wayne Bay for representing himself in this matter.


text:
    FROM: The District Court of the 16th Judicial District. County of Treasure.
    STATE OF MONTANA, Plaintiff, vs. Richard L. Blythe, Defendant.
    NO. DC 96-05 DECISION
   On March 13,1997, it was the judgment of the Court that the defendant be and is hereby sentenced to the State Prison in Deer Lodge, Montana, for a period of thirty (30) years, none of this time is to be suspended. In addition, the Court finds that the parole eligibility of this defendant shall be restricted, and that the defendant shall not be eligible for parole for the first fifteen (15) years of this sentence as authorized under M.C.A. 46-18-202(2). This sentence, to be served, is consecutive to the defendant’s December, 1995 sentence for Domestic Abuse.

DATED this 10th day of November, 1997.

On October 16, 1997, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by attorney Art Thompson. The state was represented by Valerie Wilson, Jefferson County Attorney.

Before hearing the application, the defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that 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 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

The Sentence Review Board wishes to thank Art Thompson for representing Richard Blythe in this matter and Valerie Wilson for representing the State.