author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER JUSTICE LEAPHART,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. CORY SCOTT WALSH, Defendant and Appellant.
    No. 95-420.
    Submitted on Briefs October 10, 1996.
    Decided January 10, 1997.
    54 St.Rep. 64.
    281 Mont. 70.
    931 P.2d 42.

      For Appellant: David E. Stenerson, Hamilton.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Pamela P. Collins, Assistant Attorney General, Helena; George Com, County Attorney, Hamilton.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Cory Scott Walsh appeals his criminal convictions in the District Court for the Twenty-First Judicial District, Ravalli County. A jury found Walsh guilty of aggravated assault, accountability for aggravated assault, accountability for misdemeanor assault and assault. We affirm.

The issues on appeal are whether sufficient evidence supports the jury’s findings and whether prosecutorial misconduct was established in the State’s amendments to the information.

Because the sufficiency of the evidence is at issue, we set forth the facts in the light most favorable to the prosecution.

On May 11, 1994, Melodie Stewart, her ten-year-old daughter Chellsi, and her fiance Christopher Lecce went to Lake Como, near Hamilton, Montana, for a picnic. They left the lake at dusk in Stewart’s Chevrolet pickup truck, with Lecce at the wheel.

A car came up behind the pickup on the highway and began following it closely with its bright lights on. Lecce flipped his rear-view mirror down so that the bright lights would not be in his eyes, and slowed down to let the car pass. The car continued to tailgate the pickup with its bright lights on for a little over two miles. When the car finally passed them, Lecce flicked his bright lights on and off.

The two persons in the car, Cory Walsh and Christopher Driscoll, made obscene gestures out of the car windows. They then stopped the car directly in front of the pickup. They jumped out, leaving their car doors open and blocking the roadway. Appearing very upset, they approached the pickup.

Lecce got out of the pickup and the three men began to argue. Walsh was very close to Lecce, and Lecce pushed him away. Stewart, still in the car with Chellsi, screamed at them to stop. Walsh said, “Shut up, bitch.” Lecce turned to look at Driscoll, who was behind him. Walsh then hit Lecce so hard that it brought him to his knees. When Lecce got up, Walsh hit him again. Lecce tried to get up, but both Walsh and Driscoll were hitting him, preventing him from getting to his feet.

Stewart locked the doors to the pickup and told Chellsi to lie down out of sight. Lecce was on the ground and Walsh and Driscoll were kicking him when a second car drove up. Stewart hoped someone in the second car would help them. However, three people got out of the car hooting and hollering, and one of them, later identified as Walsh and Driscoll’s friend Joshua Vieth, joined in hitting and kicking Lecce.

Stewart got out of the pickup with a cellular phone in her hand and said (untruthfully — the phone was out of range) that she had called the police, who were on their way. The two cars and their occupants left the scene.

Lecce was left lying unconscious in a puddle of blood. When he regained consciousness, Stewart drove him to the hospital. He had bumps and bruises all over his head and bruises on his chest. His throat was injured so that he had a hard time swallowing and could not talk. Stewart was instructed to wake him every hour that night because of his head injury. He lost one tooth during the assault and another the next day. For several months, he had problems with his balance and suffered from headaches.

Walsh was initially charged with aggravated assault on Lecce. The State later obtained leave to amend the information, adding charges of accountability for aggravated assault on Lecce by Driscoll and Vieth, and assault on Stewart and Chellsi. The jury found Walsh guilty of aggravated assault on Lecce, accountability for aggravated assault by Vieth on Lecce, accountability for assault by Driscoll on Lecce, and assault on Chellsi.

ISSUE 1

Was sufficient evidence presented at trial to support the charges?

In criminal appeals, this Court reviews the sufficiency of the 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. Richards (1995), 274 Mont. 180, 184, 906 P.2d 222, 224.

The State initially points out that Walsh did not move for judgment of acquittal based on insufficiency of the evidence either at the close of the prosecution’s case or at the close of all the evidence. He did, however, move for new trial, arguing that the evidence was insufficient to support a finding of serious bodily injury to Lecce or to support the charge of assault on Chellsi.

Section 46-16-702(2), MCA, requires that a motion for new trial must be filed within thirty days following a verdict. The State points out that Walsh’s motion for new trial was untimely because it was not filed until some fifty-five days after the verdict. While the State is correct that the motion was untimely and should not have been considered, see State v. Gollehon (1995), 274 Mont. 116, 906 P.2d 697, this argument was not raised before the District Court, and therefore we consider it waived.

Accordingly, we will consider whether the evidence was sufficient to support the verdict on the charges of aggravated assault upon Lecce and assault upon Chellsi. However, because Walsh failed to argue at any time prior to filing his brief on appeal that the evidence was insufficient to support the verdict on the accountability charges, we decline to consider that argument. See State v. Johnson (1993), 257 Mont. 157, 162, 848 P.2d 496, 499.

Under § 45-5-202, MCA, a defendant commits aggravated assault if he purposely or knowingly causes serious bodily injury to another. At the time of the offenses charged here, “serious bodily injury” was statutorily defined as bodily injury that:

(i) creates a substantial risk of death;
(ii) causes serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ; or
(iii) at the time of the injury, can reasonably be expected to result in serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ.

Section 45-2-101(59), MCA (1993). As the District Court noted, the trial record in this case is devoid of evidence that Lecce was in substantial risk of death. Therefore, we examine the record for evidence of serious permanent disfigurement or protracted loss or impairment of the function or process of any bodily member or organ, or reasonable expectation of the same.

Walsh contends that the evidence at trial was not sufficient to sustain his conviction of aggravated assault because Lecce did not suffer serious bodily injury as defined in § 45-2-101(59), MCA (1993). Walsh cites the opinion testimony of Lecce’s dentist, Dr. Olson. Dr. Olson testified that although Lecce’s loss of two teeth would cause serious or permanent disfigurement and impairment of the function of the teeth in general, the loss of the two teeth could not reasonably have been expected to cause a protracted impairment of the function of the teeth in general. Dr. Olson reasoned that a lot of people get along without all of their teeth.

Dr. Olson further testified that, prior to the beating, Lecce had crowns on teeth numbers eight and nine, but that there were teeth underneath with which he could work. After the beating, the root was exposed on tooth number nine, and Dr. Olson had to perform a root canal and insert a post inside the root large enough to place a crown where the tooth had previously been. He also replaced the crown on tooth number eight.

Walsh has cited no authority indicating that medical testimony is necessary to establish serious bodily injury. A nonexpert witness is competent to testify as to his past or present condition. State v. Bower (1992), 254 Mont. 1, 10, 833 P.2d 1106, 1112. Lecce testified that it took about eight appointments and four months before Dr. Olson was able to insert replacement teeth for him. He also testified that, since the beating, there were some foods he could no longer eat or could eat only with caution.

We note that several state courts have held that the loss of a tooth was sufficient to support a charge of aggravated assault. See State v. Bridgeforth (Minn. Ct. App. 1984), 357 N.W.2d 393, 394; Lenzy v. State (Tex. Crim. App. 1985), 689 S.W.2d 305, 310.

Further, as did the District Court, we consider the evidence of the injury to Lecce’s teeth in conjunction with the evidence of his other injuries. Walsh and his friends left Lecce lying unconscious in a puddle of blood. Lecce testified that the aftereffects of the beating included headaches and problems with his balance for several months. His injuries were potentially serious enough to justify a CAT scan of his head.

Walsh next points to uncertainty in the evidence as to who inflicted the blow that knocked Lecce’s teeth loose. He alludes to the absence of evidence of blood on his footwear or clothing. Lecce testified that he did not recall whether the blow which loosened his teeth occurred before or after the second car arrived. Walsh testified that he hit Lecce only once. Stewart, in contrast, testified that Lecce was lying on the ground unconscious, with Walsh and Driscoll kicking him, when the second car drove up.

The weight and credibility of the evidence are exclusively within the province of the trier of fact. State v. Flack (1993), 260 Mont. 181, 189, 860 P.2d 89, 94. It was the jury’s task to determine which testimony was most credible concerning the extent of Walsh’s involvement in this incident.

Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found the essential elements of the crime of aggravated assault upon Lecce beyond a reasonable doubt.

We next examine the sufficiency of the evidence concerning the charge of assault against Chellsi. Assault is defined in Montana, in relevant part, as purposely or knowingly causing reasonable apprehension of bodily injury in another. Section 45-5-201(l)(d), MCA. Walsh maintains that there was no evidence that he at any time made any move toward the occupants of the pickup. While he concedes that Chellsi’s fear may have been real, he contends her fear was not reasonably associated with actions which created an apprehension of impending bodily injury to her.

It is not necessary that the victim of an assault be the direct recipient of the defendant’s actions. In State v. Keup (1987), 228 Mont. 194, 741 P.2d 1330, this Court sustained Keup’s conviction for assault after he fired a gun at the victim’s dog, next to which the victim was standing at the time. Walsh attempts to distinguish this case from Keup, arguing that no shot was fired or move was made in Chellsi’s direction. However, it was undisputed that moves were made against Lecce, another occupant of the pickup in which Chellsi was riding.

“The jury may use common experience to conclude that a particular situation would cause a person to experience fear.” State v. Lewis (1986), 220 Mont. 418, 422, 715 P.2d 1064, 1067; citing State v. Case (1980), 190 Mont. 450, 621 P.2d 1066. Chellsi, who was ten years old at the time of this incident, testified that she saw Walsh and Driscoll walk over to her mother’s pickup and that they were big, were cussing, and appeared to be drunk. Driscoll testified that at the beginning of the confrontation with Lecce, he heard a little girl scream in the pickup. Chellsi testified that she was screaming and frightened because she thought Walsh and Driscoll were going to attack her and her mom, too. She saw Walsh punch Lecce, heard her mother scream at them to stop, and heard Walsh respond “Shut up, bitch.”

Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Chellsi reasonably apprehended bodily injury to herself, as one of the essential elements of the crime of assault against her.

In summary, we determine that Walsh’s claims of insufficiency of the evidence are unsupported by the record. We affirm on all grounds raised under this issue.

ISSUE 2

Was prosecutorial misconduct established in the State’s amendments to the information?

Walsh was initially charged with aggravated assault on May 25, 1994. Two months later, the State asked for and received permission to file an amended complaint adding the accountability charges. In November 1994, two weeks before trial, the State again obtained leave to amend the information, adding the charges of misdemeanor assault against Stewart and Chellsi.

Walsh contends that the amendments were not based upon newly-discovered facts, but were instead filed in response to his refusal to accept a plea agreement. He points out that multiple charges carry with them an inherent prejudice to a defendant. He maintains that no purpose can be shown for the amendment of charges and it should not have been allowed.

“[W]hen the facts of a case support a possible charge of more than one crime, the crime to be charged is a matter of prosecutorial discretion.” State v. Booke (1978), 178 Mont. 225, 230, 583 P.2d 405, 408. Section 46-11-205(1), MCA, allows an information to be amended in matters of substance at any time up to five days before trial. In this case, the prosecutor complied with all applicable legal requirements in filing the amended information.

Moreover, the record discloses no factual basis for Walsh’s assertion that the State improperly amended the information in an attempt to coerce him to plead guilty. Prejudice in a criminal case will not be presumed; it must be established by the record that the defendant was denied a substantial right. State v. Arlington (1994), 265 Mont. 127, 150, 875 P.2d 307, 321. We hold that Walsh has not established prosecutorial misconduct in the amendments made to the information.

Affirmed.

JUSTICES GRAY, ERDMANN, NELSON and LEAPHART concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur with the majority’s conclusions that there was sufficient evidence to sustain the defendant’s conviction of aggravated assault, and that based on the record available to us, the allegation of prosecutorial misconduct is not established.

I dissent from the majority’s conclusion that there was sufficient evidence to sustain the jury’s verdict that the defendant assaulted Chellsi Sventgard.

Walsh was involved in one fight with one victim (albeit the odds were unfair and a brutal beating was administered). As a result, he has been convicted of four separate crimes, even though, based on the same facts now known, one charge was originally deemed appropriate. Presumably, based on the majority’s conclusions, if more of Walsh’s friends had been passing by and stopped to participate in the beating, and if more people had witnessed the beating, Walsh could be charged with an endless number of additional crimes. Applying the same theories applied to Walsh’s prosecution, the average hockey player in the NHL would spend the rest of his life behind bars.

Section 45-5-201, MCA, provides, in relevant part, that:

(1) A person commits the offense of assault if he:
(d) purposely or knowingly causes reasonable apprehension of bodily injury in another.

There was no evidence that Walsh did anything to purposely or knowingly cause Chellsi to fear that she personally would be injured. She remained in Lecce’s vehicle at all times during Lecce’s altercation with Walsh. During that time, the doors of the vehicle were locked. At no time did Walsh threaten her. In fact, he said nothing to her. He did not approach the vehicle in a threatening manner; nor did he make any other threatening gesture toward her. Her mother left the vehicle during Lecce’s altercation with Walsh, and moved about freely without any threat being made to her physical well-being. In sum, there was no evidence that Walsh either said or did anything which would support a finding that he knowingly or purposely caused Chellsi to fear that she would be personally harmed.

The majority cites various facts in support of its conclusion. However, they all relate to what Chellsi observed Walsh or Driscoll do in relation to some third person. None of the facts demonstrate any aggressive act toward Chellsi, and none of the facts relied on by the majority distinguish her from any other person who witnesses a fight between two other people.

The concurring opinion suggests that this case is distinguishable from a hockey brawl or a barroom fight because of the age of the alleged assault victim and the fact that she was returning from a picnic when the alleged assault occurred. Based on the result-oriented approach advocated by the concurring opinion, the amorphous test for assault is simply whether the majority finds the defendant’s conduct sufficiently offensive.

The concurring opinion wanders further astray by suggesting that in lieu of any aggressive action toward Chellsi during the defendant’s altercation with Lecce, it was sufficient that the State proved defendant tailgated the vehicle in which Chellsi was a passenger with his bright lights on and made obscene gestures at the Lecce vehicle. I am sure the general public will be surprised to learn that tailgating and obscene gestures can serve as the basis for a misdemeanor assault conviction. Furthermore, there is no evidence that Walsh was even aware of Chellsi’s presence in the Lecce vehicle while he followed it, much less that by tailgating and gesturing to the vehicle he “purposely or knowingly” caused her fear of bodily injury. Finally, the State’s charge of assault was not based on tailgating or gesturing. It was based simply on the fact that Walsh fought with Lecce in Chellsi’s presence. The charging document states that:

On or about the 11th day of May, 1994, in Ravalli County, Montana, the defendant Cory Scott Walsh purposely or knowingly engaged in conduct which placed C. Sv., a youth, in reasonable apprehension of bodily injury by exiting the vehicle which had caused the car in which she was riding to stop and then violently attacking and beating without apparent reason the driver of the car in which she was riding, all in close proximity to C. Sv., which was in violation of the above statute.

While the concurring opinion strikes an admirable blow for chivalry, it is a clear setback for predictable application of the law.

The majority relies on State v. Keup (1987), 228 Mont. 194, 741 P.2d 1330. However, there is no similarity between the facts in Keup and those in this case. In Keup, the defendant actually fired a gun in the direction of the victim. The victim was actually endangered and had reason to fear'that she would be injured. Chellsi was not similarly endangered in this case.

Although the number of crimes for which Walsh was convicted based on one fight is not the issue that has been raised, the result in this case presents some bizarre possibilities. Distilled to its essence, the crime that Walsh is guilty of is an unfair fight which resulted in potentially serious injury to his victim.

However, as a consequence of an unfair fight, Walsh has now been convicted of two felonies and two misdemeanors. He was convicted of one felony because of his own participation. He was convicted of a second felony because of another person’s participation. He was convicted of a misdemeanor because of a third person’s participation. And, he was convicted of a second misdemeanor because of what a witness to the fight observed.

If this case sets any precedent, the opportunities for prosecution of people involved in barroom brawls is endless. For example, if five people beat up one person, each could be charged with five felonies and sentenced to twenty years for each felony conviction. If fifty people witness the beating, each defendant could be charged with fifty counts of misdemeanor assault and sentenced to another six months for each misdemeanor conviction. All sentences could be imposed consecutively, and each participant in the barroom brawl could end up being sentenced to 145 consecutive years for his or her participation.

I doubt very much that there was ever a legislative intention that our criminal statutes be piled on in this fashion. The purpose of misdemeanor assault statutes is to punish people who knowingly harm or threaten harm to someone else.

The purpose of accountability statutes is to punish people who, in combination with someone else, cause serious bodily harm when it cannot be determined who actually inflicted the blow that caused the harm.

The inconsistency of the jury’s verdict is apparent in this case when analyzed in terms of the only serious bodily harm that was inflicted.

Walsh’s conviction for aggravated assault was affirmed on the basis that there was substantial evidence from which a jury could have found that one of his blows knocked out one of Lecce’s teeth. However, he was also convicted of accountability for aggravated assault based on blows struck by Joshua Vieth. If the only serious bodily injury that Lecce sustained was the loss of his tooth, how could two separate people on two separate occasions have caused the same serious bodily injury? If both Walsh and Vieth did not cause separate serious bodily injuries, then how could Walsh have been convicted of two felonies? The whole series of developments in this case, beginning with an information which charged only aggravated assault; a subsequent amendment which added accountability for aggravated assault; and a second amendment which added charges of two misdemeanors, when all the information on which the amendments were based was available to the State at the time of the original information, smacks of prosecutorial mischief.

Although our decision is limited to the issues presented to us, the fact that the majority gives its implied stamp of approval to overcharging and over-conviction in this manner by concluding that witnesses to fights are now separate victims, will assuredly lead to future charges which have more to do with coercing plea agreements than with honestly stating the nature of an accused’s alleged criminal conduct.

I am not suggesting that we canonize Walsh, but was it really necessary to convict him of four crimes for one beating?

Call me soft, but I have an idea which, if considered and acted upon, would restore some sanity to the criminal justice system. It goes like this. One defendant who administers one beating to one victim who sustains one serious injury is subject to conviction for one felony, punishable by imprisonment for a period of twenty years and a fine of up to $50,000. I know that my idea probably does not satisfy the mob instinct to extract a pound of flesh from Walsh for his abusive and uncivilized conduct; however, it might restore some predictability, rationality, and proportionality to our system of criminal laws. I hope the majority will not reject it out of hand.

For these reasons, I dissent from that part of the majority opinion which concludes that there was sufficient evidence to affirm the jury’s finding that Cory Scott Walsh assaulted Chellsi Sventgard.

JUSTICE HUNT joins in the foregoing concurring and dissenting opinion.

JUSTICE LEAPHART,

specially concurring.

I specially concur with the Court’s opinion. I write in response to the dissent’s view that there was insufficient evidence to sustain the jury’s verdict that the defendant Walsh assaulted Chellsi Sventgard.

The dissent, in concerning itself with hockey players or barroom denizens, overlooks the fact that in this case we are not talking about someone who attended a sporting event or witnessed a barroom fight. Rather, the present matter involves a 10-year-old girl who was a passenger in a vehicle with her mother and her mother’s fiance Lecce, returning home from a picnic when this assault occurred.

Walsh was convicted of assaulting Chellsi under § 45-5-201, MCA, which provides that a person commits the offense of assault if he “purposely or knowingly causes reasonable apprehension of bodily injury in another.” The dissent contends that there was no evidence that Walsh did anything to purposely or knowingly cause Chellsi to fear that she personally would be injured. The dissent states:

At no time did Walsh threaten her. In fact, he said nothing to her. He did not approach the vehicle in a threatening manner; nor did he make any other threatening gesture toward her. Her mother left the vehicle during Lecce’s altercation with Walsh, and moved about freely without any threat being made to her physical well-being. In sum, there was no evidence that Walsh either said or did anything which would support a finding that he knowingly or purposely caused Chellsi to fear that she would be personally harmed.

I strongly disagree. The evidence very clearly indicates that Walsh and his accomplice Driscoll went to great lengths to strike fear into the hearts of all the occupants of this vehicle. For starters, the fact that Walsh refused to pass, choosing instead to menacingly tailgate the vehicle for two miles with his bright lights on, would cause both the driver and passengers concern for their safety. The evidence indicates that when Walsh’s car did pass, he and Driscoll made obscene gestures at the Lecce vehicle. There is nothing to indicate that Walsh and Driscoll were selective and excluded Chellsi from their threatening gestures. The dissent contends that there is no evidence that Walsh was even aware of Chellsi’s presence in the vehicle. If, after tailgating the Lecce vehicle for two miles with lights on high beam, Walsh was unaware that there were three people in the vehicle, it would only be because he could not count. Notwithstanding the dissent’s skepticism in this regard, there was no evidence to support such a conclusion.

Walsh then stopped his car directly in front of Lecce’s and blocked the roadway. In my view, young Chellsi had, at that point in time, cause to reasonably apprehend bodily injury. That is, when two grown men menacingly tailgate your vehicle for two miles, make obscene gestures at you while passing and then block the roadway, you had best be concerned for your welfare. Their malevolent purpose soon became evident when the two men proceeded to mercilessly beat and kick Lecce. The dissent is correct in noting that neither of them actually made any verbal threats to Chellsi, although they did say “Shut up, bitch” to her mother when she asked them to stop. Then, as if the 2 to 1 odds were not sufficiently favorable, three fresh accomplices arrived on the scene, one of whom joined in hitting and kicking Lecce while the other two stood waiting in reserve. Lecce, who at this point was off his feet, was now confronted with five men. Fortunately we will never know whether these five brave fellows would have turned their attention to Chellsi because Chellsi’s mother outwitted them by feigning a call for help on a cellular phone which, unbeknownst to them, was not working.

From Chellsi’s 10-year-old perspective, if Walsh found it sporting to engage in a grossly lopsided assault on Lecce, was it not reasonable for Chellsi to fear that Walsh would find it equally sporting to beat up on one little girl, one on one? In this day and age, whether you are 10 years old or 50, whether male or female, when a group of inebriates stops your car on a rural road at night, after favoring you with obscene gestures, you can assume that they are not going to offer you tickets to a hockey game.

There was more than sufficient evidence to support the verdict that Walsh knowingly and purposely caused Chellsi to reasonably apprehend that she would be personally harmed.

CHIEF JUSTICE TURNAGE and JUSTICE NELSON join in the foregoing specially concurring opinion.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. Vanessa T. Bahr, Defendant.
    NO. CDC 95-389
    DECISION
   On November 7,1995, it was ordered that defendant is sentenced on the charge of Count I: Robbery, a Felony, to the Department of Corrections for ten (10) years. On the charge of Count II: Criminal Endangerment, a Felony, the Court sentences defendant to the Department of Corrections for ten (10) years. On the charge of Count III: Assault, a Felony, the Court sentences defendant to the Department of Corrections for ten (10) years. These sentences shall run concurrently. The Court adds an additional two (2) years to the sentence imposed herein for use of a weapon to run consecutively to Count I. Defendant shall not be eligible for parole for three (3) years from today’s date. Defendant is given credit for the days already served, such credit to be applied at the end of the sentence only. During any time of parole, the defendant shall be subject to conditions as stated in the November 7, 1995 judgment.

DATED this 16th day of September, 1996.

On August 22, 1996, 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 22nd day of August, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Vanessa T. Bahr for representing herself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. William J. Baker, Defendant.
    NO. DC 95-1503
    DECISION
   On March 14, 1996, it was ordered that the defendant be sentenced to the custody of the Department of Corrections for a term of ten (10) years for the offense of Forgery, a Felony, and be subject to all rules and restrictions of the Department of Corrections, with credit to be given by the Jefferson County Sheriff’s Office for time served. The Court further recommends that the defendant be screened for placement at a pre-release center and comply with the conditions as stated in the March 14,1996judgment.

On August 23, 1996, 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 application shall be dismissed without prejudice.

Done in open Court this 23rd day of August, 1996.

DATED this 16th day of September, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Justin D. Becker, Defendant.
    NO. DC 95-55
    DECISION
    DATED this 19th day of September, 1996.
   On February 28, 1996, it was ordered that the defendant be committed to the custody of the Montana Department of Corrections for a term of five (5) years. Defendant shall be subject to conditions as stated in the February 28,1996 judgment. The defendant shall receive credit for time served in the Big Horn County Detention Facility from and after August 30, 1995. It is the recommendation of this Court that Defendant be considered for acceptance in the Swan River Boot Camp Program. In the event that Justin Dale Becker completes the Boot Camp Program and follow-through provisions required by that Program, he may be returned to this Court for suspension of the balance of any prison sentence. Any suspension shall be subject to compliance with provisions and conditions set forth in this judgment. It is further ordered that the sentence imposed herein shall run concurrently to the sentence imposed in Counts I and II in Big Horn County criminal cause number DC 93-24.

On August 23, 1996, 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 attorney Thomas Scott.

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. Upon further consideration, however, the Defendant elected not to further proceed and so advised.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the application shall be dismissed without prejudice.

Done in open Court this 23rd day of August, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Justin D. Becker for representing himself in this matter and also attorney Thomas Scott for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Justin Dale Becker, Defendant.
    NO. DC 95-58
    DECISION
    DATED this 19th day of September, 1996.
   On February 28, 1996, it was ordered that the said Justin D. Becker shall be, and hereby is, committed to the custody of the Montana Department of Corrections for a term of five (5) years. Defendant shall be subject to conditions as stated in the February 28,1996 judgment. The defendant will be placed under the supervision of the Department of Adult Probation and Parole, and will abide by the rules and regulations of that office. The defendant shall receive credit for time served in the Big Horn County Detention Facility from and after August 30, 1995. It is the recommendation of this Court that defendant be considered for acceptance in the Swan River Boot Camp Program. In the event that Justin Dale Becker completes the Boot Camp Program and follow-through provisions required by that Program, he may be returned to this Court for suspension of the balance of any prison sentence. Any suspension shall be subject to compliance with provision and conditions set forth in this Judgment. It is further ordered that the sentence imposed herein shall run concurrently to the sentence imposed in Counts I and II in Big Horn County criminal cause number DC 93-24.

On August 23, 1996, 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 attorney Thomas Scott.

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. Upon further consideration, however, the Defendant elected not to further proceed and so advised.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the application shall be dismissed without prejudice.

Done in open Court this 23rd day of August, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Justin D. Becker for representing himself in this matter and also attorney Thomas Scott for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Justin D. Becker, Defendant.
    NO. DC 93-24
    DECISION
   On February 28,1996, it was therefore ordered, adjudged and decreed: As to Count I: Burglary (Felony): A. That defendant’s six (6) year deferred imposition of sentence be, and hereby is, REVOKED. B. That defendant shall be, and hereby is, committed to the custody of the Department of Corrections for a term of fifteen (15) years. The last five (5) years of defendant’s fifteen (15) year sentence shall be suspended upon terms and conditions as stated in the February 28,1996judgment. The defendant shall receive credit for time served in the Big Horn County Detention Facility from and after August 30,1995. It is further ordered that the sentence imposed in Count II shall run concurrently with the sentence imposed in Count I herein and concurrently with the sentence imposed in Big Horn County criminal cause numbers DC 95-55 and DC 95-58. It is the recommendation of this Court that defendant be considered for acceptance in the Swan River Boot Camp Program. In the event that Justin Dale Becker complete the Boot Camp Program and follow-through provisions required by that Program, he may be returned to this Court for suspension of the balance of any prison sentence. Any suspension shall be subject to compliance with provisions and conditions set forth in this judgment. It is further ordered that the sentence imposed in Count I shall run concurrently with the sentence imposed in Count II herein and concurrently with the sentence imposed in Big Horn County criminal cause numbers DC 95-55 and DC 95-58. As to Count II: Burglary (Felony): A. That defendant’s six (6) year deferred imposition of sentence be, and hereby is, REVOKED. B. That defendant shall be, and hereby is, committed to the custody of the Department of Corrections for a term of fifteen (15) years. The last five (5) years of defendant’s fifteen (15) year sentence shall be suspended upon terms and conditions as stated in the February 28, 1996 judgment. It is further ordered that the sentence imposed in Count II shall run concurrently with the sentence imposed in Count I herein and concurrently with the sentence imposed in Big Horn County criminal cause numbers DC 95-55 and DC 95-58.

DATED this 19th day of September, 1996.

On August 23, 1996, 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 attorney Thomas Scott.

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. Upon further consideration, however, the Defendant elected not to further proceed and so advised.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the application shall be dismissed without prejudice.

Done in open Court this 23rd day of August, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Justin D. Becker for representing himself in this matter and also attorney Thomas Scott for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Tiffany T. Berger, Defendant.
    NO. 11449
    DECISION

      DATED this 16th day of September, 1996.
   On March 5,1996, it was the judgment of the Court that the defendant be sentenced to a term of ten (10) years on Count I: Assault, a Felony, in the Women’s Correctional Facility at Billings, Montana, and to a term of six (6) months on Count V: Assault, a Misdemeanor, in the Missoula County Jail in Missoula, Montana. The sentences shall run concurrently with each other. Additionally, pursuant to Section 46-18-221(1), M.C.A., for the use of a dangerous weapon during the commission of this offense, the defendant is sentenced to a term of five (5) years in the Women’s Correctional Facility at Billings, Montana. The sentence shall run consecutively with the sentence imposed in Count I and V. The Court finds that the defendant is a violent offender and further the Court designates the defendant a dangerous offender for the purposes of parole. Defendant shall receive credit in the amount of forty-eight (48) days.

On August 22, 1996, 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 Doug Skjelset. The state was represented by Fred VanValkenburg, Deputy County Attorney of Missoula.

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 22nd day of August, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Doug Skjelset for representing Tiffany Berger in this matter and also Fred VanValkenburg, Deputy County Attorney for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Jared Braun, Defendant.
    NO. DC 11821
    DECISION
   On February 28, 1996, it was the judgment of the Court that Jared Braun be sentenced to a term of ten (10) years in the Montana State Prison. Additionally, pursuant to Section 46-18-221(1), M.C.A., for the use of a dangerous weapon during the commission of this offense, the defendant is sentenced to ten (10) years in the Montana State Prison. Said sentence shall run consecutively with the sentence imposed. Defendant shall receive credit for time served at Missoula County Jail from October 14,1995, through date of sentencing, February 28,1996, in the amount of one hundred thirty-eight (138) days.

DATED this 16th day of September, 1996.

On August 22, 1996, 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 per phone conference call and proceeded Pro Se. The state was represented by Fred VanValkenburg, Deputy County Attorney of Missoula.

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, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Jared Braun for representing himself in this matter and also Fred VanValkenburg, Deputy County Attorney, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Albert Clinton Dalton, Defendant.
    NO. 11690
    DECISION
   On January 17, 1996, it was the judgment of the Court that Albert Clinton Dalton be sentenced to a term of forty (40) years in the Montana State Prison in Deer Lodge, Montana for the offense of Mitigated Deliberate Homicide. Pursuant to Section 46-18-202(2), M.C.A., the defendant shall not be eligible for parole or participation in a supervised release program while serving his time. It is further ordered that the defendant shall register as a violent offender, pursuant to Section 46-23-504 and 46-23-505, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for a period of ten (10) years following his release from custody. The defendant shall further notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if he should change his address during this ten (10) year period. That, however, thirty (30) years of defendant’s sentence is hereby suspended on the terms and conditions as listed in the January 17, 1996 judgment. Defendant shall receive credit for time served at Missoula County Jail from June 29, 1995, through date of sentencing, January 17, 1996, in the amount of two hundred three (203) days.

DATED this 23rd day of September, 1996.

On August 22, 1996, 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 Fred VanValkenburg, Deputy County Attorney of Missoula.

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 application shall be dismissed without prejudice.

Done in open Court this 22nd day of August, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Mark A. Fagliano, Defendant.
    NO. DC 95-104
    DECISION
   On May 30, 1996, the Order deferring Imposition of Sentence issued by this court on December 5,1995, is revoked. For the offense of Theft, the defendant is committed to the Department of Corrections for a period of ten (10) years. Four years of this commitment is suspended. The defendant shall be given credit for 144 days that the defendant has served from his arrest on January 4, 1996. In addition, the defendant shall be given credit for as many days as the defendant shall serve at the Gallatin County Detention Center from May 29,1996, until he is transported to the Department of Corrections by the Gallatin County Sheriff. Upon his release from incarceration, the defendant shall pay restitution in the amount of $ 4,001.37 for the original offense and $530.08 for the checks listed in the Exhibit Ato 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 of $100.00 to begin within 30 days of his release. The Clerk of the District Court shall pay restitution as listed in the Order Deferring Imposition of Sentence and to the merchants listed on Exhibit A. During the suspended portion of the sentence, the defendant shall be placed under the supervision of the Department of Corrections, Community Corrections Bureau. The defendant shall sign and abide by the rules and conditions of probation. During the suspended portion of the sentence, the defendant is subject to the conditions as stated in the May 30, 1996 judgment.

On August 23, 1996, 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.

DATED this 23rd day of September, 1996.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the application shall be dismissed without prejudice.

Done in open Court this 23rd day of August, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. David Wayne Follette, Defendant.
    NO. BDC 95-158
    DECISION
    DATED this 16th day of September, 1996.
   On February 29,1996, it was ordered that for the offense of Sexual Assault, a felony, the defendant is sentenced to Montana State Prison for a period of twenty (20) years, with ten (10) years suspended, upon conditions as stated in the February 29, 1996 judgment. Defendant’s eligibility for parole shall be contingent upon the defendant having completed chemical dependency care, anger management, Phases I and II of the sexual offender program, and his acceptance into an approved community sexual offender program.

On August 22, 1996, 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.

It is the unanimous decision of the Sentence Review Division that the petition shall be dismissed without prejudice.

Done in open Court this 22nd day of August, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Wm. Neis Swandal

Alternate Member, Hon. Robert Boyd


text:
    STATE OF MONTANA, Plaintiff, vs. Jamie T. Froelich, Defendant.
    NO. 9845
    DECISION

      DATED this 16th day of September, 1996.
   On July 19, 1994, the Court found the defendant in violation of the conditions of his deferred sentence and it is the judgment of the Court that defendant’s prior deferred sentence is hereby revoked and that the defendant be and he 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 the defendant be considered for placement at the Swan River Correctional Training Center. If the defendant successfully completes the Swan River Correctional Training program and the defendant is placed under the Department of Corrections, all of the conditions and provisions of the Judgment done in open Court on the 20th day of February, 1992, shall apply. Pursuant to 46-18-202(e), M.C.A., the Court recommends as a condition of any parole or early release that the defendant shall be required to pay all of the costs as ordered in the Judgment done in open Court on the 20th day of February, 1992. The defendant should pay the financial obligations on a schedule which the defendant shall devise with the Probation Officer as soon as possible after the defendant is released, if the defendant is released. Due to the defendant’s failure to comply with the terms and conditions of his deferred sentence while under the supervision of the Department of Probation and Parole, the Court finds that he 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 for August 3,1991; from September 18,1992, through September 19, 1992; from January 4, 1994, through January 5, 1994; from April 23, 1994, through April 26,1994, for nine (9) days jail time which he has previously served.

On March 22, 1995, a motion for reduction of defendant’s sentence was filed with the State responding on March 30, 1995, stating the matter is in the discretion of the Trial Court. Therefore, based on defendant’s successful completion of Boot Camp, the Courts orders that the imposition of sentence in the above matter be deferred for a period of six years commencing on the date of the original judgment. The terms and conditions of probation are listed as in the May 11, 1995 judgment.

On August 22, 1996,. 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, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Jamie T. Froehlich for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Jayme Todd Froehlich, Defendant.
    NO. 10974
    DECISION
    DATED this 16th day of September, 1996.
   On July 18,1994, it was the judgment of the Court that the defendant 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 the defendant shall be considered for placement at the Swan River Correctional Training Center. In the event the defendant successfully completes the Swan River Correctional Training Center the defendant shall be released and placed under the supervision of the Department of Corrections and Human Services, Adult Parole and Probation Bureau of the State of Montana. In the event the defendant does not successfully complete the Swan River program, the defendant shall be committed to the Montana State Prison in Deer Lodge, Montana, for a period of five (5) years on Count I. Thereafter on the 25th day of July, 1994, the defendant was brought back before the Court for sentencing on Count II. It was the judgment of the Court that the defendant be sentenced to a term of six (6) months on Count II (Criminal Possession of Dangerous Drugs, a Misdemeanor) in the Missoula County Jail in Missoula, MT. After completion of the Swan River Correctional Training Program on Count I, the defendant shall be released and placed under the supervision of the Department of Corrections and Human Services, Adult Parole and Probation Bureau of the State of Montana. In the event the defendant does not successfully complete the Swan River program on Count I, the defendant shall be committed to the Missoula County Jail in Missoula, Montana, for six (6) months on Count II. Said sentences shall run concurrently with each other. Defendant shall receive credit for time served at Missoula County Jail from January 4, 1994, through January 5, 1994; from April 23, 1994, through April 26,1994; in the amount of six (6) days.

On August 22, 1996, 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, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Jamie T. Froehlich for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. CHARLES A. GRAVELEY, Defendant.
    NO. ADC 93-215
    DECISION
   On December 20, 1994, after having been convicted upon his plea of guilty of the offense of Solicitation, a felony, in violation of Sections 45-4-101 and 45-5-102, Montana Code Annotated, occurring December 16, 1993, Defendant Charles A. Graveley was committed to the Montana Department of Corrections for a period of forty years for placement that may include Montana State Prison or other suitable corrections placement. It was the recommendation of the Court that Defendant serve a portion of his sentence in a prison environment. The Department was authorized to award additional good time if deemed appropriate for parole eligibility. Defendant was given credit for 35 days served in the Lewis and Clark County Jail, together with such good time as would have been earned had he been incarcerated in the Montana State Prison. The Court further ordered that when Defendant is not incarcerated he shall be subject to several conditions as stated in the December 20, 1994, judgment, including the conditions that Defendant have no contact with his victim/complainant, any member of her family or any person with whom she may have a romantic interest and that Defendant not enter Lewis and Clark County without permission of his supervising parole or probation officer and then only in the company of another adult. The Court reserved jurisdiction to revise the foregoing sentence if Defendant violates any conditions imposed therein. The Department of Corrections was further authorized to revoke the suspended portion of Defendant’s sentence should he violate any conditions thereof. The reasons for the sentence included the protection of the victim as well as society, to provide Defendant an opportunity to return to a productive life and other factors as enumerated by the Court on the record at time of imposing sentence.

On August 16,1996, the District Court, Judge Ed McLean, the original sentencing judge herein, presiding, issued an Order upon Defendant’s motion to modify or amend his sentence wherein the Court concluded that, even though its intended sentence was not being followed by the Department of Corrections, it nevertheless was without jurisdiction to modify or amend its original judgment and order to correct such failure. The Court therefore urged Defendant to file the within application and expressed its hope that its intended sentence would be reflected in the decision resulting therefrom.

On August 23, 1996, Defendant’s application for review of his sentence was heard by the Sentence Review Division of the Montana Supreme Court. Defendant was present and was represented by counsel, J.C. Weingartner and Greg Jackson. The State was not represented.

Before hearing the application, 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. Defendant was further advised that there is no appeal from a decision of the Sentence Review Division. Defendant acknowledged that he understood this and stated that he wished to proceed.

As stated in its above referenced Order, the District Court intended, and the transcript of the proceedings therein so verify, that Defendant (1) be under the supervision of the Department of Corrections for the entire forty year period; (2) be exposed to the prison system for a short period of time, i.e., the reception process; (3) be discharged to a pre-release center; and (4) be returned to the family farm within twelve to fifteen months of the date of sentencing. Although the District Court was assured by representatives of the Department that its judgment would accomplish such intent, the Department’s subsequent interpretation thereof has failed to do so and is apparently contrary to what the Court specifically instructed.

DATED this 23rd day of September, 1996.

In said Order, the District Court also stated that,

If the Court knew then what it does now, and if it were aware that the Department of Corrections will not do what it said it would do, it would have sentenced Defendant to a straight forty year sentence with thirty years suspended, with specific instructions to grant him sufficient good time to allow him to enroll in a pre-release center after he completed the reception process at the Montana State Prison.

Upon consideration of the foregoing, it is the unanimous decision of the Sentence Review Division that the sentence shall be modified so as to effectuate the original intention of the sentencing District Court, as stated both in its above referenced Order and in the transcript of the sentencing hearing. Such modification will incorporate the provisions of the District Court’s Order of August 16, 1996, which Order is attached hereto and incorporated herein by this reference. The remainder of the sentence initially imposed upon Defendant is therefore to be suspended upon the filing hereof. All other conditions of probation imposed upon Defendant in the original Judgment shall remain so imposed.

Chairman, Hon. Ted O. Lympus

Member, Hon. Wm. Neis Swandal

Alternate Member, Hon. Robert Boyd

The Sentence Review Board wishes to thank attorneys J.C. Weingartner and Greg Jackson for representing the Defendant in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Rebecca Gunhammer, Defendant.
    NO. 11790
    DECISION
   On May 6, 1996, it was the judgment of the Court that defendant’s prior deferred sentence on Count I (Criminal Mischief, a Felony) is hereby revoked and that the defendant be and she 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. The Court will take no action on Count II (Criminal Michief, a Misdemeanor) and the deferred sentence on that count will expire. The defendant shall receive credit from August 30,1995, through October 16,1995; and from April 19,1996, through date of sentencing, May 6,1996, for sixty-six (66) days jail time which she had previously served.

On August 22, 1996, 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 16th day of September, 1996.

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 22nd day of August, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

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


text:
    STATE OF MONTANA, Plaintiff, vs. Richard J. Hager, Defendant.
    NO. CR 95-55
    DECISION
    DATED this 16th day of September, 1996.
   On April 8,1996, it was ordered that the defendant, Richard Jay Hager, is sentenced to the Montana State Prison for a period of fifteen (15) years, with five (5) years suspended. Defendant shall not be eligible for parole until he has completed Phases I and II of the Sexual Offender Treatment Program. Defendant’s parole shall be conditioned upon conditions as stated in the April 8,1996 judgment.

On August 22, 1996, 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 application shall be dismissed without prejudice.

Done in open Court this 22nd day of August, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. Wm. Neis Swandal


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MARTIN ROMANNOSE, Defendant and Appellant.
    No. 96-046.
    Submitted on Briefs July 11, 1996.
    Decided January 17, 1997.
    54 St.Rep. 72.
    281 Mont. 84.
    931 P.2d 1304.

      For Appellant: Mark T. Errebo, Deputy Public Defender, Billings.
    For Respondent: Joseph P. Mazurek, Attorney General, Jennifer Anders, Assistant Attorney General, Helena; Dennis Paxinos, Yellowstone County Attorney, Dale Mrkich, Deputy Yellowstone County Attorney, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

Defendant Martin Romannose (Martin) appeals from a judgment and commitment entered in the Thirteenth Judicial District Court, Yellowstone County, imposing a five-year sentence at the Montana State Prison upon his conviction for felony escape. We affirm.

We restate the following issues on appeal:

1. Did the District Court properly deny Martin’s motion for a directed verdict?

2. Did the District Court err in admitting the State’s exhibits into evidence?

3. Did the State’s questions and closing argument impermissibly shift the burden of proof to Martin?

4. Did the District Court properly sentence Martin under § 45-7-306, MCA?

FACTUAL AND PROCEDURAL BACKGROUND

Defendant Martin Romannose (Martin) began serving a ten-year plus a three-year consecutive sentence at the Montana State Prison on February 6, 1991. In August 1992, Martin was paroled, but returned to the Montana State Prison in April 1993 due to a parole violation. His parole was subsequently revoked. Later in 1993, Martin was transferred to a pre-release facility, known as Alpha House, located in Billings, Montana. Alpha House is a facility for inmates of the Montana State Prison or a federal penitentiary who are working toward probation or parole status. Alpha House is administered by a private corporation known as Alternatives, Inc.

Before entering Alpha House, Martin signed a pre-release referral form whereby he acknowledged that he was a Montana State Prison inmate and that any unauthorized absence from Alpha House constituted felony escape carrying a ten-year consecutive sentence. Additionally, in the recommended case disposition from the Board of Pardons, Martin signed a statement that he understood he was subject to “official detention” until paroled. In February 1994, the Board of Pardons conditionally granted Martin parole upon successful completion of pre-release. However, Martin did not complete this condition because of the incident at issue.

While at Alpha House, Martin was approved for “live-out” status which allowed him to maintain his own residence while still being subject to the same conditions as if he were residing at Alpha House. That is, Martin was still required to check into Alpha House once a day and abide by its rules such as urinalysis and alcohol testing. On April 9, 1994, Martin’s employer sent him home from work for drinking on the job. Alpha House personnel were informed of this incident, checked up on Martin at his residence and conducted a breathalyser test. Later that same day, they conducted another breathalyser test on Martin at the Alpha House. Both tests were positive for alcohol consumption.

Alpha House immediately made arrangements to transport Martin to jail, and, while such arrangements were in progress, Martin walked away from Alpha House without permission. Not until May 16, 1994, was Martin finally found and arrested in Spokane, Washington and eventually returned to Montana. Martin was charged by information with felony escape pursuant to § 45-7-306, MCA, in the Thirteenth Judicial District Court, Yellowstone County. On October 25, 1995, after a jury trial, Martin was convicted of the charge. On November 21,1995, the District Court sentenced Martin to five years imprisonment at the Montana State Prison to run consecutively with his current sentence. From this judgment and commitment, Martin appeals. We affirm.

DISCUSSION

1. Did the District Court properly deny Martin’s motion for a directed verdict?

At the close of the evidence, Martin moved for a directed verdict based on the grounds that the State failed to prove the two essential elements of felony escape as defined in § 45-7-306, MCA: (1) Defendant was subject to “official detention” and (2) Defendant acted purposely or knowingly. The District Court denied Martin’s motion.

Section 46-16-403, MCA, allows a trial court to direct a verdict of acquittal and dismiss a criminal charge at the close of the evidence when the evidence is insufficient to support a guilty verdict. State v. Johnson (1996), 276 Mont. 447, 450, 918 P.2d 293, 294. We review a trial court’s denial of a motion for a directed verdict to determine whether, after reviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson, 918 P.2d at 294. Because a district court’s decision to direct a verdict at the close of the State’s case lies within the sound discretion of the district court, it will not be disturbed on appeal absent an abuse of that discretion. State v. Mummey (1994), 264 Mont. 272, 276, 871 P.2d 868, 870.

Martin argues that the State failed to present any evidence that he was subject to “official detention” and that he acted purposely or knowingly. Martin contends that he presented evidence that he was not subject to “official detention,” but rather was on parole status, and, therefore, the District Court should have granted his motion for directed verdict. The State responds that it presented evidence showing that Martin was subject to “official detention” and that this evidence was sufficient to withstand Martin’s motion for a directed verdict.

Under § 45-7-306(1), MCA, “official detention” is defined to include “placement in a community corrections facility or program.” Alpha House, as a pre-release center, is a “community corrections facility or program.” See State v. Chandler (1996), 277 Mont. 476, 922 P.2d 1164, 1166. Therefore, as a resident of Alpha House, Martin was subject to “official detention.”

Martin contends that the State did not present evidence that while on ‘live-out” status with Alpha House, he was still involved in a community corrections program as contemplated by § 45-7-306(1), MCA. However, we note that despite Martin’s ‘live-out” status, the evidence shows he was still considered a resident of Alpha House and subject to its rules, including checking into Alpha House once a day and submitting to periodic urinalysis and alcohol testing. Consequently, the evidence shows that Martin was involved with a “community corrections facility or program” and was thereby subject to “official detention.”

Martin also asserts that he was a parolee at the time he left Alpha House, and, consequently, he was not subject to “official detention” as defined by § 45-7-306(1), MCA. However, no evidence in the record supports this conclusion. In fact, all evidence points to the contrary — that Martin was on inmate status and under “official detention” as a resident of Alpha House. Specifically, prior to his placement at Alpha House, Martin signed a pre-release referral form whereby he acknowledged that any unauthorized absence on his part from Alpha House would constitute felony escape. Furthermore, Martin signed a recommended case disposition from the Board of Pardons acknowledging that he was subject to “official detention” until the Board of Pardons formally approved him for parole.

Finally, Martin argues that the State failed to prove that he acted “knowingly or purposely” when he left Alpha House and thereby removed himself from official detention. We find this argument unpersuasive. The documentation offered by the State clearly shows that Martin was aware that he was subject to “official detention” while a resident of Alpha House and that any unauthorized absence on his part constituted felony escape.

Thus, we conclude that the State presented sufficient evidence concerning Martin’s “official detention” and his mental state to allow this case to be submitted to the jury. Furthermore, we conclude that the District Court did not abuse its discretion in denying Martin’s motion for directed verdict. Accordingly, we hold that the District Court properly denied Martin’s motion for directed verdict.

2. Did the District Court err in admitting the State’s exhibits into evidence?

The State offered three exhibits into evidence through one witness who worked as Martin’s case manager at Alternatives, Inc. Exhibit 1, dated February 22, 1994, was a “Recommended Case Disposition” from the Montana Board of Pardons, prepared and signed by Jeff Walters, the executive secretary of the Board of Pardons. Additionally, Exhibit 1 contained a statement signed by Martin indicating that he understood he was subject to “official detention” until paroled. Exhibit 2, dated February 24, 1994, was a “Case Disposition” signed by two members of the Montana Board of Pardons. Both exhibits showed that the Board of Pardons granted Martin parole subject to completion of certain special conditions, including completion of pre-release. Exhibit 3, dated June 7, 1993, was a “Pre-Release Referral” form prepared by Alternatives, Inc. and signed by Martin. Exhibit 3 contained a statement signed by Martin wherein he acknowledged that he was a Montana State Prison inmate while at the pre-release facility and that any unauthorized absence on his part constituted felony escape, carrying a 10-year consecutive sentence. Martin objected to the introduction of all three exhibits into evidence on the grounds that the documents were hearsay and without foundation. The District Court admitted all three exhibits under Rule 803(6), M.R.Evid., the business records exception to the hearsay rule.

Martin argues that the District Court improperly admitted the State’s exhibits into evidence under Rule 803(6), M.R.Evid. Martin contends that because the exhibits are from a public office or agency, they are potentially admissible only under Rule 803(8), M.R.Evid., the public records and reports exception to the hearsay rule. Yet, Martin asserts that while Rule 803(8), M.R.Evid., provides an exception to the hearsay rule, it also states that “factual findings offered by the government in criminal cases” are not within this exception to the hearsay rule. Martin argues that because the State’s exhibits constitute such “factual findings” under Rule 803(8), M.R.Evid., they would not qualify for admission into evidence under this exception to the hearsay rule either. Martin concludes that as stated in United States v. Cain (5th Cir. 1980), 615 F.2d 380, 382, “statements inadmissible as public agency reports under Rule 803(8) may not be received merely because they satisfy Rule 803(6)[;] ... section (6) does not open a back door for evidence excluded by section (8).”

The State responds that while its witness did not personally prepare the documents, the proper foundation was laid for the exhibits to be introduced into evidence. Specifically, Martin’s caseworker testified that he had personal knowledge of the facts contained in the documents and that the documents were prepared contemporaneously with those facts by a person with a business relationship with Alternatives, Inc. Furthermore, Martin’s caseworker testified that it was routine practice in the business to prepare these documents and the documents were prepared in the regular course of business. Therefore, the State argues that the District Court properly admitted the exhibits under Rule 803(6), M.R.Evid., because the exhibits clearly qualified as records of regularly conducted business activities.

We conclude that Martin’s argument is unpersuasive. Martin provides absolutely no explanation as to why the State’s exhibits were not admissible under Rule 803(6), M.R.Evid. Our standard of review concerning a district court’s evidentiary rulings is whether the district court abused its discretion. State v. Ford (1996), [278 Mont. 353], 926 P.2d 245, 249-50. Upon our review of the record, we conclude that the State laid the proper foundation for the District Court to admit all three exhibits under Rule 803(6), M.R.Evid., the business records exception to the hearsay rule. Accordingly, we hold that the District Court did not abuse its discretion by admitting the State’s exhibits into evidence.

3. Did the State’s questions and closing argument impermissibly shift the burden of proof to Martin?

Martin contends that the State impermissibly shifted the burden of proof to Martin when the State asked questions of its witnesses regarding Martin’s “inmate status,” and thereby implied that the State need only prove that Martin was an “inmate” as opposed to proving that Martin was subject to “official detention.” Martin also claims that the State’s closing argument was improper because the State suggested that Martin had to prove that he was on parole, and, consequently, was not subject to “official detention.”

The State responds that Martin failed to make any objections during the trial concerning the State’s questions or closing argument, and, therefore, Martin did not properly preserve this issue for appeal under § 46-20-701, MCA. However, after reviewing the record, we note that Martin, in fact, did make objections during and at the end of the State’s closing argument concerning this issue raised on appeal. Therefore, because Martin made timely objections during trial, we will discuss the merits of this issue.

The State further responds that the jury was instructed that it must find Martin was subject to “official detention” to warrant a conviction and that the State in no way attempted to shift the burden of proof to Martin. The State maintains that the evidence it presented was sufficient to allow the jury to conclude that because Martin was placed at the Alpha House, a community corrections facility, he was subject to “official detention” at the time of his escape. Furthermore, the State contends that any testimony from its witnesses concerning Martin’s inmate status was relevant to refute Martin’s claim that he was on parole at the time of his escape. Finally, the State argues that during closing argument, it accurately stated the law and never suggested that the jury could find Martin guilty of felony escape merely because he was on “inmate status.”

Upon consideration of the parties’ arguments, we note that this case was tried and argued prior to our decision in Chandler. In Chandler, we affirmed a District Court’s denial of a defendant’s motion to dismiss which was based on its conclusion of law that because the defendant was subject to “official detention,” the State could prosecute him for felony escape under § 45-7-306, MCA. Chandler, 922 P.2d at 1165-66. We explained that Chandler’s conduct would only constitute escape, as proscribed by § 45-7-306, MCA, if the State could prove that Chandler knowingly or purposely removed himself from or failed to return to “official detention” as defined in § 45-7-306(1), MCA. Chandler, 922 P.2d at 1165. Thus, the main issue in Chandler was whether Chandler’s placement in a pre-release center constituted “official detention” as defined under § 45-7-306(1), MCA. After reviewing certain provisions of the Montana Community Corrections Act, Title 53, Chapter 30, part 3, MCA, we concluded, as a matter of law, that a pre-release center was a “community corrections facility or program,” and, therefore, Chandler’s placement in the Butte Pre-release Center constituted “official detention” under § 45-7-306(1), MCA. Chandler, 922 P.2d at 1166.

In the present case, the record reflects that the State presented more than sufficient evidence to prove that Martin was a resident of a pre-release center known as Alpha House, and, therefore, was subject to “official detention” under § 45-7-306(1), MCA. See Chandler, 922 P.2d at 1166. Consequently, whether Martin was also considered to be on “inmate status” was never an issue in this case. Furthermore, the records shows that the State did not misstate the law in its closing argument and that the jury was properly instructed. Accordingly, we hold that the State’s questions and closing argument in no way shifted the burden of proof in this case to Martin.

4. Did the District Court properly sentence Martin under § 45-7-306, MCA?

Martin argues that the District Court improperly sentenced him to five years at the Montana State Prison pursuant to the felony provision of § 45-7-306(3)(b)(i), MCA. Martin contends that the District Court should have sentenced him under the misdemeanor provision of § 45-7-306(3)(c), MCA. Martin asserts that the facts surrounding his alleged escape do not meet the requirements set forth under § 45-7-306(3)(b)(i), MCA. Therefore, relying on State v. Nelson (1996), 275 Mont. 86, 910 P.2d 247, Martin maintains that the District Court was precluded from sentencing him for a felony offense.

The State responds that Martin ignores the evidence showing that Alpha House is a community corrections facility or program and that Martin, as a resident there, was subject to “official detention.” Furthermore, the State argues that Martin does not explain why Alpha House does not fall within § 45-7-306(3)(b)(i), MCA, or why Nelson is controlling. We agree.

As we discussed in Chandler, the facts of the case before us are distinguishable from Nelson. See Chandler, 922 P.2d 1166-67. In Chandler, we explained that because the facts in Nelson did not comport with the plain language of § 45-7-306(3)(b)(i), MCA, the inmates’ escape did not qualify as a felony offense. Chandler, 922 P.2d at 1167. That is, a Montana State Prison inmate who escapes from a work assignment at the Deer Lodge Golf Course is guilty only of misdemeanor escape because the golf course is not one of the institutions or facilities listed in the felony escape provisions of § 45-7-306, MCA. Here, however, Martin’s conduct, like Chandler’s, clearly falls within the plain language of § 45-7-306(3)(b)(i), MCA, which provides:

A person convicted of the offense of escape shall be ... imprisoned in the state prison for a term not to exceed 10 years if he has been charged with or convicted of a felony and escapes from a ... community corrections facility or program....

As we determined in Issues 1 and 3, Alpha House is a community corrections facility and Martin, as an Alpha House resident, was subject to “official detention.” Furthermore, the evidence shows that on April 9, 1994, Martin, a convicted felon, left Alpha House without permission and thus committed the offense of felony escape. See §§ 45-7-306(2) and (3)(b)(i), MCA. The jury found Martin guilty of felony escape and the District Court sentenced him to five years at the Montana State Prison pursuant to § 45-7-306 (3)(b)(i), MCA.

We review sentences for legality only. State v. Graves (1995), 272 Mont. 451, 463, 901 P.2d 549, 557 (citing State v. Cope (1991), 250 Mont. 387, 399, 819 P.2d 1280, 1287). A sentence is legal if it falls within the range prescribed by the statute. Graves, 901 P.2d at 557. Here, the sentence imposed by the District Court falls within the range set forth in § 45-7-306(3)(b)(i), MCA (allowing for a maximum ten-year prison term). Accordingly, we hold that the District Court properly sentenced Martin under § 45-7-306(3)(b)(i), MCA. To the extent that Martin’s complaints concern the equity of his sentence, those must be addressed to the Sentence Review Division. Graves, 901 P.2d at 557 (citing State v. Lloyd (1984), 208 Mont. 195, 199, 676 P.2d 229, 231).

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff, vs. Harvey E. Hays, Defendant.
    NO. ADC 95-108
    DECISION
    DATED this 16th day of September, 1996.
   On May 1, 1996, it was ordered that for the offense of Sexual Assault, a felony, the defendant is sentenced to Montana State Prison for a period of twenty (20) years. The Court recommends the defendant not be eligible for parole until he has successfully completed sex offender treatment and criminal thinking. The defendant shall not receive any good time unless he actively participates in treatment. The defendant is granted thirty-two (32) days’ credit for time served prior to sentencing.

On August 22, 1996, 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 per phone conference call and was represented by attorney Dennis Loveless. The state was represented by Mike McGrath, County Attorney of Lewis & Clark County.

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, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank attorney Dennis Loveless for representing Harvey Hays in this matter and also Mike McGrath, County Attorney of Lewis & Clark County, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Lyle Henry Johnson, Defendant.
    NO. 11338
    DECISION
   On March 30,1995, it was the judgment of the Court that Defendant be sentenced to a term of five (5) years in the Montana State Prison for the offense of Indecent Exposure, a Felony. Having found Defendant a persistent felony offender, pursuant to Section 46-18-501, MCA, as less than five (5) years had elapsed between his release from the Montana State Prison on August 11,1994, and the commission of this offense on September 28,1994, it was further ordered that Defendant be sentenced to forty-five (45) years in the Montana State Prison and that said sentences shall run consecutively. It was the recommendation of the Court to the Parole Board that prior to becoming eligible for parole or early release, Defendant shall successfully complete the sex offender program at the Montana State Prison. It was further ordered that Defendant shall register as a sexual offender, pursuant to Sections 46-23-504 and 46-23-505, M.C.A., with the Department of Corrections, Chief of Police, and Sheriff of the County wherein he resides for a period of ten (10) years following his release from custody and that he notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Corrections, Chief of Police and Sheriff if he should change his address during this ten (10) year period. Defendant was designated a dangerous offender for the purposes of parole eligibility and received credit for time served in the Missoula County Jail from October 7, 1994, through October 9, 1994; and from October 31, 1994, through date of sentencing, March 30,1995, in the amount of one hundred fifty-one (151) days.

DATED this 23rd day of September, 1996.

On August 22,1996, Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

Defendant was present and proceeded Pro Se. The State was represented by Fred VanValkenburg, Deputy Missoula County Attorney.

Before hearing the application, 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. Defendant was further advised that there is no appeal from a decision of the Sentence Review Division. 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 excessive, but does find that the sentence is inadequate for the reasons set forth below.

Upon such consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be modified to the effect that Defendant will not be eligible for parole until he has served 30 years of the sentence imposed and also that he successfully complete all phases of the Sex Offender Program at Montana State Prison.

The reasons for the modification are that Defendant has exhibited to the sentencing Court and even more so to this Court an absolute absence of acceptance of accountability and also the fact that previous prison sentences have done absolutely nothing for him since he soon re-offends.

Done in open Court this 22nd day of August, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Lyle Henry Johnson for representing himself in this matter and also Fred VanValkenburg, Deputy County Attorney for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Ronald Koohns, Defendant.
    NO. DC 91-070
    DECISION
    DATED this 25th day of September, 1996.
   On December 28, 1995, it was the sentence of this Court that the defendant shall be sentenced to 20 years at the Montana State Prison for Count I (Sexual Assault, a felony) and 40 years in the Montana State Prison for Count II (Sexual Intercourse Without Consent, a felony). Said sentences shall run consecutive to each other. The court hereby suspends 20 years of said sentence subject to conditions as stated in the December 28, 1995 judgment. The Court further orders that the defendant is not eligible for parole consideration until he has completed all phases of the sex offender treatment program and chemical dependency programs at the Montana State Prison. The defendant is to be given credit for 401 days served in pre-sentence incarceration as of January 2, 1996.

On August 22, 1996, 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 per phone conference call and was represented by attorney Patrick Sherlock. The state was represented by Tom Esch, County Attorney of Flathead County.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be remanded back to the Honorable Katherine Curtis, the sentencing judge so that she can review the Sexual Offender program in Texas and then decide if she wants to re-sentence Mr. Koohns.

The reasons for the sentence being remanded are that the Sentence Review Board has no idea what Sexual Offender treatment programs are available in Texas or how effective they are. The judgment entered by Judge Curtis is not capable of being fulfilled because of the transfer of Mr. Koohns by Montana State Prison to the Texas institution.

Done in open Court this 22nd day of August, 1996.

Chairman, Hon. Wm. Neis Swandal

Alternate Member, Hon. Robert Boyd

The Sentence Review Board wishes to thank Patrick Sherlock, Attorney from Kalispell for representing Ronald Koohns in this matter and also Tom Esch, County Attorney of Flathead County, for representing the State.