text:
    STATE OF MONTANA, Plaintiff, vs. James C. Locke, Defendant.
    NO. DC 95-062
    DECISION
    DATED this 23rd day of September, 1996.
   On December 7, 1995, it was the judgment of the Court that the defendant be committed to the Department of Corrections for a period of ten (10) years for appropriate placement by that agency. It is also recommended that the defendant be screened for the Intensive Supervised Probation program or placement at a pre-release center. Should the defendant be placed on probation, or granted parole, the defendant must comply with all conditions imposed by this Court’s July 12, 1995, judgment. The defendant must reimburse this Court for an additional $250.00 in Public Defender fees and must attend Alcoholics Anonymous on a daily, rather than weekly, basis. The defendant is to be given credit for one hundred forty-three (143) days served in the Flathead County Detention Center pending final disposition in this matter. Given that the defendant violated the conditions of his release with four (4) months of sentencing, the defendant is not to be given credit for time otherwise served on probation.

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 Allen Lee, legal intern of the Montana Defender Project. The state was not represented.

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

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. Jeffrey M. Sherlock

Member, Hon. Wm. Neis Swandal

Alternate Member, Hon. Robert Boyd

The Sentence Review Board wishes to thank Allen Lee, legal intern of the Montana Defender Project for representing James Locke in this matter.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. Andy Rodriguez Lopez, Defendant.
    NO. ADC 95-168
    DECISION
   On November 7, 1995, it was ordered that for the offense of Count II - Criminal Possession of Dangerous Drugs (cocaine), a felony, the defendant is sentenced to the Montana State Prison for a period of five (5) years. The defendant is granted 125 days’ credit for time served prior to sentencing.

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 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 Andy R. Lopez for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Ronald C. Markovich, Defendant.
    NO. DC 96-010
    DECISION
   On May 9, 1996, it was the judgment of this Court that the defendant be incarcerated at the Montana State Prison for a period of five (5) years. This term of incarceration is to be served consecutive to the March 17,1994, and August 11,1994, sentences imposed upon him in Butte-Silver Bow and Deer Lodge Counties. Should the defendant be granted parole, he must comply with the conditions of his release from custody as stated in the May 9,1996 judgment. Finally, the defendant is to be given credit for one hundred sixty-five (165) days served in the Flathead County Detention Center pending final disposition in this matter.

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.

DATED this 16th day of September, 1996.

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. William Neis Swandal

The Sentence Review Board wishes to thank Ronald C. Markovich for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Robert D. Martz, Defendant.
    NO. DC 95-160
    DECISION
    DATED this 23rd day of September, 1996.
   On April 9,1996, the Court found the defendant guilty of: Count 1: Driving Under the Influence of Alcohol, Fourth or Subsequent Offense, a Felony, in violation of Section 61-8-401, MCA. Count 2. Habitual Traffic Offender Operating a Motor Vehicle, a Misdemeanor, in violation of Section 61-11-213, MCA. Count 3. Failure to Show Proof of Required Liability Insurance, a Misdemeanor, in violation of Section 61-6-301(4), 2. For the offense of Driving Under the Influence of Alcohol, Fourth or Subsequent Offense, a Felony, the defendant shall be committed to the Department of Corrections for a period of eight (8) years with recommendations as stated in the April 9, 1996 judgment. The defendant shall receive credit for eighty-nine (89) days previously served at the Gallatin County Detention Center from November 9, 1995, through November 17, 1995, and from December 18, 1995, through March 7, 1996, and shall receive credit at the Gallatin County Detention Center after March 7, 1996, until his transportation to the Department of Corrections by the Gallatin County Sheriff.

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.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Alternate Member, Hon. Robert Boyd


text:
    STATE OF MONTANA, Plaintiff, vs. Malcolm E. Mayes, Defendant.
    NO. DC 90-03
    DECISION
    DATED this 23rd day of September, 1996.
   On March 15, 1994, based upon the Court’s findings and conclusions entered November 22,1993, the suspended sentence ordered by the Court on July 2,1992, was revoked. For the offense of Incest, a Felony, Defendant was committed to the custody of the Department of Corrections for a period of twenty (20) years, less two years and 202 days. Defendant was given credit for 230 days that he served from his arrest on July 21, 1993. In addition, Defendant was given credit for as many days as he shall have served at the Gallatin County Detention Center after March 8, 1994, until his delivery into the custody of the Department of Corrections by the Gallatin County Sheriff. The Court recommended that Defendant be considered for placement in a pre-release center as soon as possible. Defendant was further ordered to complete all programs for the treatment of sex offenders before his release from any pre-release center and after his release, the Court requested that the Department of Corrections place conditions upon him as stated in the March 15, 1994, judgment.

On August 23,1996, 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 Marty Lambert, Chief Deputy Gallatin 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 clearly 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 shall complete all phases of the Sex Offender Treatment Program at Montana State Prison before being eligible for parole.

The reasons for the modification are that Defendant is a predatory sex offender, is an obvious danger to society and needs the structured regimen of prison.

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 Malcolm E. Mayes for representing himself in this matter and also Marty Lambert, Chief Deputy Gallatin County Attorney, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Beryl T. McGhee, Defendant.
    NO. DC 96-037
    DECISION
    DATED this 16th day of September, 1996.
   On May 10,1996, it was the judgment of this Court that the defendant be sentenced to a term of forty (40) years at the Montana State Prison for the offense of Sexual Assault, a Felony. The defendant is to be ineligible for parole until he successfully completes phases I and II of the sex offender treatment program available at the Prison. Of this term of incarceration, twenty (20) years are suspended. As conditions of parole and probation, the defendant must comply with conditions as stated in the May 10, 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. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Michael F. McNeely, Defendant.
    NO. 9611
    DECISION
   On February 28, 1996, the Court found that the defendant was in violation of the conditions of his suspended sentence and it was the judgment of the Court that defendant’s prior suspended sentences are hereby revoked and that the defendant be and he is hereby sentenced to a term of five (5) years on Count I and to a term of ten (10) years on Count II in the Montana State Prison at Deer Lodge, Montana. The sentences shall run consecutively with each other. The defendant shall receive credit from January 24, 1996, through date of sentencing, February 28, 1996, for thirty-six (36) days jail time which he has 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 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 Michael McNeely for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Steven B. Mikkelsen, Defendant.
    NO. DC 91-15
    DECISION
   On April 24,1996, the Court found the defendant had violated the conditions of his suspended sentence as alleged in the Petition to Revoke. It is hereby ordered that the suspension of sentence heretofore entered on April 1, 1992 for the offense of Sexual Assault, a Felony, Counts II and III, as amended by the Sentence Review Division on March 12, 1993 is revoked. It is further ordered that the defendant be punished by confinement in the Montana State Prison for a term of five (5) years, with none suspended. The defendant shall receive credit for jail time served on this revocation and on prior probation holds, which as of the date of this Judgment totals fifty-nine (59) days. The defendant shall not receive credit for any other elapsed probationary time due to his violations of his probation. The Court recommends that the defendant not be considered eligible for parole until he has either completed the sexual offender treatment program or is admitted to the Intensive Supervision Program. The decision shall be made at the discretion of the Department of Corrections.

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 wished to proceed.

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

DATED this 16th day of September, 1996.

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

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 Steven B. Mikkelsen for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. John M. Morrow, Defendant.
    NO. BDC 95-237
    DECISION
    DATED this 16th day of September, 1996.
   On November 3,1995, it was ordered that for the offense of Bail Jumping, a felony, the defendant is sentenced to the Montana Department of Corrections for a period of ten (10) years. The Department may place the defendant into an appropriate community based program, facility, or a State correctional institution, with the Court’s recommendation that the defendant be placed in the Swan River Correctional Training Center in Swan Lake, Montana. The foregoing sentence shall run concurrently with the sentence imposed in Cause No. BDC 93-25 of the above-entitled Court. Upon successful completion of the program at the Swan River Correctional Training Camp, the defendant may petition the Court to suspend the remaining portion of his sentence. The defendant is granted twenty (20) 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 and was represented by attorney Kevin Vainio. 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.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be remanded back to Lewis & Clark County District Court to the sentencing judge to take whatever action he feels is appropriate.

The reason is because of the defendant’s inability to enroll in Swan River Correctional System, through no fault of his own.

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

The Sentence Review Board wishes to thank attorney Kevin Vainio for representing John Morrow in this matter and also Mike McGrath, County Attorney of Lewis & Clark County, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Dale Ray Pearce, Defendant.
    NO. 11941
    DECISION
    DATED this 16th day of September, 1996.
   On February 26, 1996, it was the judgment of the Court that Dale Ray Pearce be and is hereby committed to the Department of Corrections for a term of ten (10) years on Count I for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is further ordered that the defendant shall pay a fine on Count I through the Clerk of the District Court in the amount of One Thousand Dollars ($1,000.00), according to a schedule as set by his Parole/Probation Officer. It is the judgment of the Court that Dale Ray Pearce be and is hereby sentenced to a term of six (6) months on Count III and to a term of twelve (12) months on Count IV in the Missoula County Jail in Missoula, Montana, that, however, all but fifty-six (56) days of defendant’s sentence on Count IV is hereby suspended on terms and conditions as listed in the February 26, 1996 judgment. The sentences shall run consecutively with each other. It is the recommendation of the Court to the Parole Board that the defendant not be released until the Parole Board is convinced that the defendant has dealt with all of his alcohol problems. Defendant shall receive credit for time served at Missoula County Jail from January 2, 1996, through date of sentencing, February 26, 1996, in the amount of fifty-six (56) 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 Dale Ray Pearce for representing himself in this matter.


author: JUSTICE NELSON

text:
    BALYEAT LAW, PC, as Trustee, Plaintiff and Appellant, v. GEORGINA BEVERLY PETTIT, Defendant and Respondent.
    No. 96-499.
    Submitted on Briefs January 9, 1997.
    Decided January 17, 1997.
    54 St.Rep. 77.
    281 Mont. 95.
    931 P.2d 50.

      For Appellant: Regan Whitworth, Balyeat Law Offices, Missoula.
    For Respondent: Andrea J. Olsen, Confederated Salish and Kootenai Tribes, Tribal Legal Services, Pablo.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from a July 17, 1996 order of the Twentieth Judicial District Court, Lake County, granting a motion to dismiss the complaint which Balyeat Law, PC, as Trustee (Balyeat), filed against Georgina Beverly Pettit (Pettit). We remand for further proceedings consistent with this opinion.

Background

On or about May 1, 1995, Balyeat filed its complaint in Lake County Justice Court alleging that Pettit was indebted to Balyeat, as Trustee for various creditors, for some $1,843.60, which, according to the attachments to the complaint, consisted of goods and services provided to Lyle R. Pettitt by health-care providers located in Ronan and in Missoula, Montana. Pettit was served with a copy of the complaint and a summons, and on June 14, 1995, the Justice of the Peace entered a judgment after default against Pettit for that sum plus interest and costs.

On January 16, 1996, Pettit, by counsel, moved to set aside the default judgment and filed a supporting brief under Rule 60(b)(4), M.R.Civ.P. Pettit contended that the Lake Comity Justice Court had neither personal nor subject matter jurisdiction over her since she was an enrolled member of the Confederated Salish & Kootenai Tribes (Tribe) residing within the exterior boundaries of the Flathead Reservation; because the debts were incurred by Pettit’s husband (both before and after their marriage); because the debts were not owed by her nor did they involve a sum certain; and because Balyeat was not a real party in interest and had, allegedly, violated § 37-61-408(1), MCA (prohibiting an attorney from purchasing a debt for purposes of bringing an action thereon).

Balyeat filed its brief in opposition to Pettit’s motion disputing Pettit’s allegations regarding jurisdiction; contending that the court had jurisdiction over transactions involving Tribal members; contending that the complaint did state a sum certain; and arguing against the application of § 37-61-410, MCA, and dismissal. Attachments were included as to the issue involving § 37-61-410, MCA. A reply brief was filed by Pettit and both Balyeat and Pettit also filed supplemental briefs. On February 27, 1996, the Justice of the Peace denied Pettit’s motion without any memorandum of opinion or rationale stated.

Pettit appealed to the District Court; briefs were filed directed to the jurisdictional issue; and within a few days of the filing of Pettit’s reply brief, the court entered its order granting Pettit’s motion to dismiss for lack of jurisdiction. The court did not support its order with any memorandum of opinion or rationale. This appeal followed.

Discussion

The record on appeal does not reflect that there were any evidentiary hearings in either the Justice or District Court; there were no affidavits filed by either party; the only facts we have are those that can be gleaned from the allegations in and attachments to the initial complaint and from the statements of counsel in the briefs; we have not been furnished with any fruits of discovery; there are no findings of fact; and we have no basis for determining the legal authority or rationale upon which either the Justice of the Peace or the District Judge reached their opposite decisions.

On the record aforementioned, Balyeat requests this Court, on appeal, to resolve issues involving the jurisdiction of Montana state courts over , a person who claims to be a member of an Indian tribe apparently residing on the reservation for debts of her husband allegedly incurred for medical care both on and off the reservation, some prior to their marriage and some after their marriage. Balyeat’s opening brief contends that we should “further [refine] the law regarding jurisdiction of the courts of Montana,” and it relies primarily on our decision in Crawford v. Roy (1978), 176 Mont. 227, 577 P.2d 392, which, by reason of Roy’s status as an attorney and the specific facts of that case may have only marginal applicability to what appear to be the facts here. Balyeat also argues that Pettit is liable for the debts of her husband for necessary medical care under §§ 40-2-106, 205-207 and 210, MCA.

Pettit’s answer brief relies for the most part on broad principles of federal Indian law and Tribal sovereignty and on what she contends is the exclusivity of the jurisdiction of the Tribal Court in cases such as this. She disputes the applicability of the Montana case and statutory law cited by Balyeat.

Balyeat contends that Montana state courts have jurisdiction over Pettit and over all of the debts or accounts attached to its complaint; Pettit maintains that the state courts have no personal or subject matter jurisdiction in this case whatsoever. We believe that the correct result may lie somewhere in between.

The District Court’s determination that it did not have jurisdiction over this case is a conclusion of law for which our review is plenary. Highlands Golf Club v. Ashmore (1996), 277 Mont. 324, 328, 922 P.2d 469, 472.

In this case we are asked to resolve (or, as Balyeat suggests, “refine”) complicated questions involving Indian law and the jurisdiction of Montana’s state courts over a person who appears to be a member of an Indian tribe residing on the reservation, for debts incurred by her husband (who has never been named in the suit), for medical goods and services which he apparently incurred both before and after the parties’marriage, both on and off the reservation, which debts have been assigned to a law firm, as trustee, and which is the named plaintiff and real party in interest in the underlying collection action. We are asked to perform this task on the basis of a record that is completely devoid of any affidavits, hearing testimony or discovery establishing what the facts actually are; that contains no memorandum of opinion or rationale of the court whose decision we are requested to either affirm, modify or reverse; and on the basis of briefs that argue sweeping principles of law with little analysis of or application to what appears to be the complicated factual scenario summarized above.

Given the complexity and sensitivity of legal issues involving the assertion of state court jurisdiction over reservation Indians in civil matters, we are mindful that our decision in any case such as this — whichever way we rule — will, necessarily, have important ramifications throughout this State and will undoubtedly impact Indians and non-Indians, businesses (both on and off the reservation), and the court systems of two different sovereign governments.

In the context of the record presented to this Court on appeal — or, rather, the lack thereof — -and because of the broad legal positions taken by the parties (legal positions that effectively take a broadax to apparent facts that should be treated with a scalpel), we conclude that this case is not ready for appellate review. Given the importance, complexity and sensitivity of cases such as this, and being put in a position of either having to make what may be bad law on a poor record or, alternatively, no law at all, we elect the latter. Accordingly, we decline to review this case further at this time.

This case is remanded to the District Court with instructions that a factual record appropriate to the dispositive issue or issues be developed; that the trial court render findings of fact, conclusions of law and a memorandum of opinion or rationale on the basis of that record in support of whatever decision it makes; and that in any further appeal of this case to this Court, the parties’ briefs will cite and argue legal authorities that pertain to the specific factual record so developed and the decision ultimately rendered by the trial court. Finally, any future appellant is reminded that

[fit is the duty of a party seeking review of a judgment, order or proceeding to present the supreme court with a record sufficient to enable it to rule upon the issues raised. Failure to present the court with a sufficient record on appeal may result in dismissal of the appeal and/or the imposition of some other appropriate sanction.

Rule 9(a), M.RApp.P.

Remanded for further proceedings consistent with this opinion.

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


text:
    STATE OF MONTANA, Plaintiff, vs. Richard J. Pellerin, Defendant.
    NO. DC 96-028
    DECISION
    DATED this 16th day of September, 1996.
   On May 9,1996, it was the judgment of this Court that the defendant: A) In Cause No. DC 95-008(B), serve a suspended term of ten (10) years at the Montana State Prison; B) In Cause No. DC 96-028(A), serve a consecutive term of ten (10) years at the Montana State Prison, for a total term of incarceration of twenty (20) years, with ten (10) years suspended. The defendant is to be ineligible for parole until he completes the Criminal Thinking Errors and Moral Recognition Therapy (MRT) programs available at the Montana State Prison (or Boot Camp should he volunteer and be accepted) and follows all resulting recommendations to the satisfaction of his supervising officers and treatment providers. As conditions of his probation and parole, the defendant must comply with conditions as stated in the May 9, 1996 judgment. The defendant is to be given credit for one hundred twenty-two (122) days served in the Flathead County Detention Center pending final disposition in this matter. Given the number and nature of his probation violations, the defendant is not to be given credit for time otherwise served on probation in Cause No. DC 95-008(B).

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. William Neis Swandal

The Sentence Review Board wishes to thank Richard J. Pellerin for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Richard J. Pellerin, Defendant.
    NO. DC 95-008
    DECISION
    DATED this 16th day of September, 1996.
   On May 9,1996, it was the judgment of this Court that the defendant: A) In Cause No. DC 95-008(B), serve a suspended term of ten (10) years at the Montana State Prison; B) In Cause No. DC 96-028(A), serve a consecutive term of ten (10) years at the Montana State Prison, for a total term of incarceration of twenty (20) years, with ten (10) years suspended. The defendant is to be ineligible for parole until he completes the Criminal Thinking Errors and Moral Recognition Therapy (MRT) programs available at the Montana State Prison (or Boot Camp should he volunteer and be accepted) and follows all resulting recommendations to the satisfaction of his supervising officers and treatment providers. As conditions of his probation and parole, the defendant must comply with conditions as stated in the May 9, 1996 judgment. The defendant is to be given credit for one hundred twenty-two (122) days served in the Flathead County Detention Center pending final disposition in this matter. Given the number and nature of his probation violations, the defendant is not to be given credit for time otherwise served on probation in Cause No. DC 95-008(B).

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. William Neis Swandal

The Sentence Review Board wishes to thank Richard J. Pellerin for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Anthony D. Perry, Defendant.
    NO. DC 96-055
    DECISION
   On May 30,1996, it was the judgment of this Court that the defendant serve a term of ten (10) years at the Montana State Prison for the offense of Issuing a Bad Check, a Felony Common Scheme. Tb be eligible for parole, the defendant must complete all phases of the chemical dependency treatment program available at the Prison and follow all resulting recommendations to the satisfaction of his treatment providers and supervising officers. Should the defendant be granted parole, he must comply with the conditions as stated in the May 30, 1996 judgment. The defendant is hereby given credit for one hundred thirty-three (133) days served in the Flathead County Detention Center pending final disposition in this matter.

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 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. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Timothy G. Quigg, Defendant.
    NO. DC 95-451
    DECISION
   On March 1,1996, the previous sentence dated the 19th day of January, 1996, was duly revoked and the defendant was resentenced for the crime of Theft (Felony). Wherefore, it is ordered, adjudged and decreed that the said Timothy Quigg be committed to the Department of Corrections and Human Services pursuant to Section 46-18-201(e), Montana Code Annotated to be placed in an appropriate community based program, facility or a State Correctional Insitution, for custody, care and treatment for the term of eight (8) years to run concurrently with the sentence received in criminal cause number DC 95-411. In all other respects, the previous orders, conditions and reasons of this Court entered on the 19th day of January, 1996, shall remain unchanged and are reimposed and shall continue as if set forth herein. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Tfen Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court. It is the findings of this Court pursuant to 46-18-201(3), Montana Code Annotated, the Court shall reject the elapsed time as credit against the sentence.

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 Dale Mrkich, Deputy County Attorney of Yellowstone County.

DATED this 23rd 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 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.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Timothy G. Quigg, Defendant.
    NO. DC 95-411
    DECISION
   On March 1,1996, the previous sentence dated the 19th day of January, 1996, was duly revoked and the defendant was resentenced for the crime of Burglary (Felony). Wherefore, it is ordered, adjudged and decreed that the said Timothy Quigg be committed to the Department of Corrections and Human services pursuant to Section 46-18-201(e), Montana Code Annotated to be placed in an appropriate community based program, facility or a State Correctional Institution, for custody, care and treatment for the term of eight (8) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 74 days. In all other respects, the previous Orders, conditions and reasons of this Court entered on the 19th day of January, 1996, shall remain unchanged and are reimposed and shall continue as if set forth herein. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Tbn Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court. It is the finding of this Court pursuant to 46-18-201(3), Montana Code Annotated, the Court shall reject the elapsed time as credit against the sentence for the following reasons: 1. The Court concludes defendant while on supervised probation did not adequately follow the conditions and rules; therefore followed the recommendations of defendant’s Supervising Officer, Steven K Hurd and counsel.

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 Dale Mrkich, Deputy County Attorney of Yellowstone 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 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.

DATED this 23rd day of September, 1996.

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. Allen Robert Ray, Defendant.
    NO. DC 95-100
    DECISION
    DATED this 23rd day of September, 1996.
   On December 6,1995, the Court ordered that the defendant shall be committed to the Department of Corrections for a period of ten (10) years. The defendant shall receive credit for time served in the Lake County Jail on this offense, which as of the date of this Judgment totals thirty-seven (37) days. The Court further orders in the event that the Department suspends any portion of the ten (10) year sentence, that said suspended portion of the sentence shall be upon the conditions as stated in the December 6,1995 judgment, and the Court reserves the right to impose additional conditions of probation. The Court further orders that the defendant shall pay the mandatory surcharge of Twenty-Five Dollars ($25.00), which shall be paid to the Clerk of the District Court. The Court further orders that the defendant shall pay the mandated supervisory fee of One Hundred Twenty Dollars ($120.00) per year, prorated at Ten Dollars ($10.00) per month, for the number of months under supervision. Payments on the fee shall be made in the amount of Thirty Dollars ($30.00) per quarter to the Clerk of the District Court.

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.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Reno J. Runsabove, Defendant.
    NO. DC 95-39
    DECISION
    DATED this 16th day of September, 1996.
   On May 13, 1996, it was the judgment of the Court that the deferred sentence handed down to this defendant on December 11, 1995 is hereby revoked. It is the judgment of the Court that the defendant be and is hereby sentenced to the Department of Corrections for a period of ten (10) years for the offense of Intimidation, and five (5) years for the offense of Criminal Possession of Dangerous Drugs, to run concurrently. No credit will be given for unsuccessful supervision time since originally placed under supervision. It is the recommendation of the Court that the defendant be placed in the Swan River Boot Camp program. Upon successful completion of the boot camp program, the defendant may apply for possible early discharge from the remainder of his sentence to the Department of Corrections. The Department of Corrections and Human Services may place the defendant, Reno James Runsabove, into an appropriate community based program, facility, or a State correctional institution. During any period of probation or parole, the Court recommends terms and conditions of supervision as stated in the May 13, 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 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 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 Reno J. Runsabove for representing himself in this matter.


author: CHIEF JUSTICE TURNAGE

text:
    DONALD FERRITER and SHARON FERRITER, Plaintiffs and Respondents, v. BOB H. BARTMESS and PATRICIA A. BARTMESS, Defendants and Appellants.
    No. 96-137.
    Submitted on Briefs December 5, 1996.
    Decided January 21, 1997.
    54 St.Rep. 79.
    281 Mont. 100.
    931 P.2d 709.

      For Appellants: C. Kathleen McBride, Johnson, Kebe and McBride, Butte.
    For Respondents: John C. Doubek, Small, Hatch, Doubek & Pyfer, Helena.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

In this quiet title action, Donald and Sharon Ferriter seek a determination of the boundary between their property and property owned by Bob H. and Patricia A. Bartmess. They also seek to recover damages for the Bartmesses’ assertion of a claim to their property. The First Judicial District Court, Lewis and Clark County, granted summary judgment in favor of the Ferriters as to the location of the boundary. The Bartmesses appeal. We affirm.

The issues are whether material issues of fact bar summary judgment and whether the District Court abused its discretion in denying the Bartmesses’ motion for relief from judgment and to alter or amend the judgment.

The Ferriters and the Bartmesses own property located in Section 17, Township 11 North, Range 3 West, P.M.M. In 1943, Lloyd and Frances Synness conveyed to C. A. Peterson the southwest quarter of the southwest quarter of Section 17,

save and excepting a plot of ground two hundred fifty (250’) feet square located at the southwest corner of said described property and bounded on the south by the Lincoln-Hauser Lake Road and on the west by U.S. Highway No. 91 upon which that certain building and dance hall commonly known as “The Shanty” is located [.]

The Ferriters here seek to quiet their title to the southwest quarter of the southwest quarter of Section 17, “excepting therefrom a plot of ground 250 square in the Southwest comer of the SW1/4 SW1/4.” The Bartmesses hold title to the property reserved by Synness in 1943. Therefore, the Ferriters’ property adjoins the Bartmesses’ property on the north and the east.

The proper boundary between the Ferriter and Bartmess properties depends on the location of the boundaries of the plot reserved in the 1943 deed and now owned by the Bartmesses. The Ferriters contend that the beginning point of that plot is located at the southwest section corner. The Bartmesses argue that, instead, it is located at the edge of the road easements, i.e., 30 feet and 50 feet inside the section comer. As a result, they claim their property extends 30 feet and 50 feet north and east into the property claimed by the Ferriters.

The District Court ruled that when interpreted according to the applicable mies of construction, the property description contained in the 1943 deed from Synness to Peterson provides that the reserved plot is bounded by the southwest corner of Section 17. The court therefore granted summary judgment to the Ferriters as to the location of the boundary between the Bartmesses’ property and theirs. The Bartmesses moved for relief from judgment or to alter or amend it. That motion was deemed denied after the court failed to rule on it within the time allowed under Rule 59(d), M.R.Civ.P. This appeal followed. The court’s summary judgment ruling has been certified for appeal pursuant to Rule 54(b), M.R.Civ.P.

ISSUE 1

Do material issues of fact bar summary judgment?

Summary judgment is proper when the record discloses no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. This Court reviews an order granting summary judgment under the same criteria applied by the District Court pursuant to Rule 56(c); our standard of review is de novo. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785.

The Bartmesses contend that issues of fact exist as to the location of the south and west boundaries of their property. They point out that, although the deed from Synness to Peterson states that the property is “at the southwest comer of said... property,” the deed also states that the property is “bounded on the south by the LincolnHauser Lake Road and on the west by U.S. Highway No. 91.” As further evidence of a genuine issue of material fact, the Bartmesses refer to the court’s questions at the summary judgment hearing concerning the width of those two roads and their specific ownership.

The Bartmesses cite Proctor v. Werk (1986), 220 Mont. 246, 714 P.2d 171, for the proposition that an ambiguous deed reservation renders a case concerning interpretation of the deed inappropriate for summary judgment. In Proctor, this Court ruled that a deed which reserved “six percent of all royalties received for oil and gas removed from the above-described property’ was ambiguous as to whether it conferred a royalty of six percent of all production received, or six percent of the landowners’ royalty. Proctor, 714 P.2d at 173. We held that summary judgment was therefore improper.

The Bartmesses contend that in the present case, the District Court “found the deed description ambiguous.” Therein, they overstate their case. What the District Court found was an “apparent ambiguity” in the deed, which it then proceeded to analyze tinder rules for interpretation of instruments.

The reasoning in the District Court’s written order is flawless. The court began by setting forth general rules of construction of written instruments. Adeed should be interpreted liberally to effect its intent. McDonald v. Jones (1993), 258 Mont. 211, 216, 852 P.2d 588, 591. While a grant of property is to be interpreted in favor of the grantee, any reservation is to be interpreted in favor of the grantor. Section 70-1-516, MCA. When a grantor conveys property described as being bounded by a road, the conveyance is presumed to include the grantor’s rights to the middle of the road. Section 70-20-201(4), MCA. Finally, and critically, an unambiguous deed must be interpreted according to its language as written, without resort to extrinsic evidence of the grantor’s intent. Sections 70-1-513 and 28-3-401, MCA; Peterson v. Hopkins (1984), 210 Mont. 429, 434, 684 P.2d 1061, 1063.

As the District Court noted, the apparent ambiguity in the 1943 deed arises from the deed’s description of the boundaries of the reserved plot of land in two ways. The deed first states that the reserved plot is located “at the southwest comer of said described property.” The meaning of that description is clear — the reserved portion is located at the south and west section boundary. The next phrase in the deed, however, creates the apparent ambiguity: “and bounded on the south by the Lincoln-Hauser Lake Road and on the west by U.S. Highway No. 91.”

The District Court correctly concluded that any ambiguity so created is eliminated by application of statutory rules of construction. Section 70-20-201, MCA, provides in relevant part:

The following are the rules for construing the descriptive part of a conveyance of real property when the construction is doubtful and there are no other sufficient circumstances to determine it:
(1)Where there are certain definite and ascertained particulars in the description, the addition of others which are indefinite, unknown, or false does not frustrate the conveyance, but it is to be construed by the first mentioned particulars.

As previously noted, the first description of the boundary of the plot reserved in the 1943 deed is certain. The second description not only conflicts with the first description, but it is also unclear as to the boundary of the reserved plot — whether it is at the edge of the roads or at the edge of the road easements as they existed in 1943. The District Court’s questions at trial elucidated the absence of evidence of the width of the roadways in 1943 and the uncertainty as to the meaning of “bounded by” in the deed.

Applying § 70-20-201(1), MCA, eliminates any ambiguities and uncertainties, and results in a description that is definite and certain. We conclude that the District Court was correct in applying § 70-20-201(1), MCA, in this case. We hold that the south and west boundaries of the Bartmesses’ property are established by the “definite and ascertained particulars” of the section lines of the south and west boundaries of Section 17, Township 11 North, Range 3 West, RM.M.

We hold that the District Court did not err in entering summary judgment for the Ferriters as to the location of the boundary between their property and that owned by the Bartmesses.

ISSUE 2

Did the court abuse its discretion in denying the Bartmesses’ motion for relief from judgment or to alter or amend the judgment?

The decision to grant a new trial based upon newly-discovered evidence is within the discretion of the trial judge and will not be overtoned absent a showing of manifest abuse of discretion. Fjelstad v. State, through Dept. of Highways (1994), 267 Mont. 211, 220, 883 P.2d 106, 111.

The Bartmesses moved for relief from judgment in light of newly-discovered evidence. Their alleged newly-discovered evidence was an affidavit concerning the width of the roads as they would have existed at the time of the 1943 conveyance. Because that evidence would be irrelevant to determination of the boundary under the analysis set forth above, we hold that the District Court did not manifestly abuse its discretion in denying the motion for relief from judgment or to alter or amend the judgment.

Affirmed.

JUSTICES TRIEWEILER, NELSON, LEAPHART and GRAY concur.


text:
    STATE OF MONTANA, Plaintiff, vs. Michael S. Scott, Defendant.
    NO. BDC 94-244
    DECISION

      DATED this 16th day of September, 1996.
   On November 2, 1995, it was ordered that for the offense of Count I - Sexual Intercourse Without Consent, a felony, the defendant is sentenced to twenty (20) years at Montana State Prison, with five (5) years suspended, upon the conditions hereinafter set forth. The defendant shall not be eligible for parole until he has successfully completed Phases I and II of the Sex Offender Treatment Program at Montana State Prison. The foregoing sentences shall run consecutively with each other. At any time the defendant is released back into a community setting, the defendant shall be mandated to special conditions of parole or his suspended sentence. The defendant shall be granted 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 Greg Jackson. 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. Wm. Neis Swandal

Alternate Member, Hon. Robert Boyd

The Sentence Review Board wishes to thank Attorney Greg Jackson for representing Michael Scott in this matter and also Mike McGrath, County Attorney of Lewis & Clark County, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Mark C. Smith, Defendant.
    NO. 7759
    DECISION
   On February 6, 1996, the Court found that the defendant was in violation of the conditions of his suspended sentences and it is the judgment of the Court that defendant’s prior suspended sentence on Count II and III (Burglary, a Felony) is hereby revoked and that the defendant be and he is hereby sentenced to a term of five (5) years each on Count II and III in the Montana State Prison at Deer Lodge, Montana (Count I has already been served.) The sentences shall run consecutively with each other. The defendant shall receive credit from August 5,1994, through August 9,1994; and from October 30,1995, through date of sentencing, February 6, 1996, for one hundred nine (109) days jail time which he has previously served.

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 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. William Neis Swandal


text:
    STATE OF MONTANA Plaintiff, vs. Dorothy A. Stone, Defendant.
    NO. 1263
    DECISION
   On January 25,1996, it was found that the defendant was in fact guilty of the crime of Theft, a felony committed over a period of five years all set forth in the findings, and for which the Court now imposes the following: Dorothy Stone for her conviction of the felony offense of Theft is hereby sentenced to a commitment for a term of ten (10) years to Montana State Prison (Women’s Correctional Facility). Five (5) years of said term shall be suspended upon the terms and conditions set out in the January 25, 1996 judgment. The defendant is also fined the sum of $5,000, all ofwhich shall be suspended upon the condition that she timely discharge her restitution obligation. The defendant is certified non-dangerous for purposes of parole eligibility. The provision herein made for restitution and fine, shall constitute a judgment against the defendant and a lien against any real property which she now owns or has any interest, or any subsequently acquired ownership or interest. The State shall be responsible for preparing the judgment lien of record.

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 Arthur J. Thompson. The state was not represented.

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

After careful consideration, there is a split decision of the Sentence Review Division. The Honorable Jeffrey Sherlock and the Honorable Wm. Neis Swandal vote to reduce the sentence to a suspended sentence of 10 years. Credit shall be given for time served. The balance of the sentence shall be suspended.

DATED this 16th day of September, 1996.

The reasons for the modification are that the defendant has no prior criminal record and also that this modification will keep the sentence more in line with similar sentences.

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Honorable Ted O. Lympus votes to affirm the sentence.

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.) Judge Lympus finds that the reasons advanced for modification are insufficient to hold that the sentence imposed for the District Court is inadequate or excessive.

Chairman, Hon. Ted O. Lympus

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

The Sentence Review Board wishes to thank attorney Arthur J. Thompson for representing Dorothy Stone in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Russell Rex VanKirk, Defendant.
    NO. ADC 95-156
    DECISION
   On December 7, 1995, it was ordered that for the offense of Deliberate Homicide, a felony, the defendant is sentenced to Montana State Prison for a period of 100 years. It is further ordered that for use of a weapon in the commission of an offense, the defendant is sentenced to Montana State Prison for a period of 10 years. The foregoing sentences shall run consecutively to each other. The defendant is denied eligibility for parole or suspended release, pursuant to Section 46-18-202, MCA. The reasons for the foregoing sentence are that the defendant committed a brutal, savage crime, he left the victim in a field, and he presents a danger to society.

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 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.

DATED this 16th day of September, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Wm. Neis Swandal

Alternate Member, Hon. Robert Boyd

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


text:
    STATE OF MONTANA, Plaintiff, vs. Harry D. Whipple, Defendant.
    NO. CR 91-79
    DECISION
    DATED this 16th day of September, 1996.
   On April 3,1996, it was the sentence and judgment of the Court as follows: 1. That the defendant is guilty of violating the terms and conditions of the deferred imposition of sentence imposed on October 16, 1991 for the offense of Issuing a Bad Check, a Felony, and the deferred imposition of sentence is hereby revoked; 2. The defendant is committed to the Department of Corrections and Human Services for appropriate placement into a community-based program, facility or state correctional institution for a period of ten (10) years on each charge, with four (4) years on each suspended. All to run concurrently with one another. The suspended portion of the sentence will be subject to all exisiting or unresolved conditions set forth in the sentence imposed October 16, 1991, plus additional conditions as stated in the April 3, 1996 judgment. The defendant shall receive credit for 29 days jail time served prior to sentencing.

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 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 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 Harry D. Whipple for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Harry D. Whipple, Defendant.
    NO. CR 91-80
    DECISION
    DATED this 16th day of September, 1996.
   On April 3,1996, it was the sentence and judgment of the Court as follows: 1. That the defendant is guilty of violating the terms and conditions of the deferred imposition of sentence imposed on October 16, 1991 for the offense of Issuing a Bad Check, a Felony, and the deferred imposition of sentence is hereby revoked; 2. The defendant is committed to the Department of Corrections and Human Services for appropriate placement into a community-based program, facility or state correctional institution for a period of ten (10) years on each charge, with four (4) years on each suspended. All to run concurrently with one another. The suspended portion of the sentence will be subject to all exisiting or unresolved conditions set forth in the sentence imposed October 16, 1991, plus additional conditions as stated in the April 3, 1996 judgment. The defendant shall receive credit for 29 days jail time served prior to sentencing.

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 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 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 Harry D. Whipple for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Paul Wright, Defendant.
    NO. DC 95-469
    DECISION

      DATED this 23rd day of September, 1996.
   On June 11, 1996, it was ordered that Defendant be punished by imprisonment in the Montana State Prison for the term of seventy-five (75) years for the offense of Deliberate Homicide. Defendant received credit for 309 days spent in the Yellowstone County Detention Facility. It was further ordered that because Defendant, while engaged in the commission of the offense of Deliberate--Homicide, knowingly used a firearm, to wit: a small silver pistol, he was sentenced to an additional term of five (5) years in the Montana State Prison pursuant to Section 46-18-221, Montana Code Annotated, to be served consecutively to the term imposed for the commission of the crime of Deliberate Homicide. It was further ordered that Defendant shall not be eligible for parole, placement in any supervised release program or placement in any program or facility other than Montana State Prison for the first Twenty (20) years of the sentence imposed in this case pursuant to Section 46-18-202(2), Montana Code Annotated. Such restriction being deemed necessary for the protection of society.

On August 23,1996, Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

Defendant was present through telephone conference call and proceeded Pro Se. The State was represented by Dale Mrkich, Deputy Yellowstone 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 clearly 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 shall not be eligible for parole until he has served 30 years of the sentence imposed.

The reasons for the modification are that Defendant’s prior record indicates a clear pattern of violence and that fact, together with the circumstances under which he committed the instant offense, with an absolute absence of any justification whatsoever, require such modification in order that society be more adequately protected from him.

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 Paul Wright for representing himself in this matter and also Dale Mrkich, Deputy Yellowstone County Attorney, for representing the State.


text:
    JACQUI WALLS, Petitioner and Appellant, vs. TRAVELERS INDEMNITY COMPANY, Respondent/Insurer for BMC WEST/POULSEN’S, INC., a Montana corporation, Employer.
    No. 96-055.
    Submitted on Briefs July 18, 1996.
    Decided January 23, 1997.
    54 St.Rep. 82.
    281 Mont. 106.
    931 P.2d 712.

      For Appellant: Jeff R. Lynch, Lynch & Chisholm, Great Falls.
    For Respondent: Kirk D. Evenson, Marra, Wenz, Johnson & Hopkins, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal from the findings of fact, conclusions of law and judgment of the Workers’ Compensation Court entered on January 17, 1996, denying Petitioner Jacqui Walls (Walls) compensation and medical benefits for an alleged work-related injury. We affirm.

The sole issue on appeal is whether the Workers’ Compensation Court’s denial of Walls’ claim for benefits is supported by substantial credible evidence.

FACTUAL AND PROCEDURAL BACKGROUND

On October 4, 1993, Jacqui Walls (Walls) began working as a cashier at BMC West/Poulsen’s, Inc. (Poulsen’s), a hardware, lumber and homeware retailer located in Great Falls, Montana. Walls submitted a workers’ compensation claim to her employer, Poulsen’s, alleging that on June 2, 1994, she injured her back while lifting a heavy lawn ornament. Poulsen’s was enrolled under Compensation Plan II of the Workers’ Compensation Act and its insurer was Travelers Indemnity Company (Travelers). Travelers refused to accept liability on Walls’ claim for workers’ compensation benefits, contending that her damages were not the result of a work-related injury. After both parties complied with the mediation procedure set forth in the Workers’ Compensation Act, a mediation report and recommendation was submitted on September 22,1994. Travelers rejected this recommendation on October 19, 1994.

Subsequently, Walls filed a petition for hearing in the Workers’ Compensation Court on September 1, 1995. In her petition, Walls alleged that on June 2,1994, she suffered an industrial injury arising out of and in the course of her employment with Poulsen’s. Specifically, she contended that she injured her lower back when she assisted Linda Wilson (Wilson), a customer, by lifting and carrying a heavy lawn ornament from its display to the cash register area. Travelers responded and denied that Walls had suffered a compensable work-related injury. Rather, Travelers argued that Walls injured her back while moving her personal belongings from her boyfriend’s residence, not while working at Poulsen’s assisting a customer.

Trial was held on January 10, 1996, before the Workers’ Compensation Court. Walls testified in person and presented three other witnesses on her behalf: her former roommate, Carol LaRocque; her former boyfriend, Zane Carter; and her son, Chase Walls. Travelers presented six additional witnesses to defend against Walls’ claim: the customer Walls assisted, Linda Wilson; Walls’ supervisor, Van Crowe; and four other Poulsen’s employees, including Vince Miranti and Dennis Olson. On January 17, 1996, the Workers’ Compensation Court entered its findings of fact, conclusions of law and judgment denying Walls’ claim. From this judgment, Walls appeals.

DISCUSSION

Was the Workers’ Compensation Court’s denial of Walls’ claim for benefits supported by substantial credible evidence?

In its January 17,1996 judgment, the Workers’ Compensation Court entered detailed findings of fact and found that Walls did not injure her back while working at Poulsen’s on June 2,1994. Based on these findings and relying on Ricks v. Teslow Consolidated (1973), 162 Mont. 469, 484, 512 P.2d 1304, 1313, the court determined that Walls had not proven by a preponderance of the evidence that she was entitled to compensation. Therefore, the court concluded that Walls was entitled to neither compensation, medical benefits nor attorney fees or costs.

Walls argues that the Worker’s Compensation Court’s decision to deny Walls’ claim is unconscionable because the court relied only on the impeached testimony of Wilson, the customer that Walls assisted on June 2, 1994, and ignored all other evidence concerning Walls’ claim. Walls asserts that Wilson’s testimony was impeached by two other witnesses whose testimony contradicted her recollection of part of the events of June 2,1994. Walls explains that after Wilson testified that Walls gave no indication that she hurt her back while lifting and carrying a heavy lawn ornament from its display to the cash register area, Wilson subsequently gave incorrect testimony that Walls had also moved the lawn ornament from the cash register area to Wilson’s car.

Walls insists that this part of Wilson’s testimony “was designed to further indicate that Ms. Walls could not possibly have injured her back if she was then able to transport the [lawn ornament] from her checkout stand to Ms. Wilson’s car.” Furthermore, Walls points out that the store manager, Van Crowe, testified that cashiers do not assist customers by taking purchased items to their cars and that another store employee, Dennis Olson, testified that he, not Walls, had assisted Wilson by taking the lawn ornament from the cash register area to her car. Walls contends that the Workers’ Compensation Court should not have given Wilson’s testimony any weight, not only because Wilson offered testimony that was later proven untrue, but because her testimony was “designed specifically to prevent Ms. Walls from obtaining benefits for a work-related injury.”

Additionally, Walls asserts that all other evidence supports Walls’ claim that she injured her back at work. Specifically, Walls contends that she reported her injury to her employer and informed at least three friends on the date the injury occurred and also reported her injury to her physician. Walls argues that the trial court ignored this evidence. Furthermore, Walls accuses the trial court of framing its findings of fact in terms of witness credibility to prevent meaningful review of its decision by this Court and “[t]o hamper [Walls’] likelihood of reversal.” Walls urges this Court to reframe our standard of review by adopting a more reasonable and equitable standard to ensure meaningful appellate review of issues of witness credibility.

Travelers responds that Walls’ arguments lack merit and the Workers’ Compensation Court’s decision should not be disturbed. Travelers asserts that upon careful review of the trial court’s findings, it is clear that the court did not rely solely on Wilson’s testimony and ignore all other testimony presented. Rather, Travelers points out that the court carefully considered all testimony and drafted detailed findings to explain its decision. Specifically, Travelers refers to Finding of Fact No. 22, wherein the trial court summarized the conflicting testimony and explained what testimony it considered credible. Travelers argues that this finding, alone, shows that substantial credible evidence supports the trial court’s finding that Walls did not injure her back on the job.

Additionally, Travelers argues that Wilson’s inability to perfectly recall who assisted her by taking the lawn ornament from the cash register area to her car is insignificant and does not impeach her testimony. To support this argument, Travelers points out that in Finding of Fact No. 7, the trial court stated that resolving the conflict in testimony concerning who took the lawn ornament to Wilson’s car “is not central to my decision.” Moreover, Travelers argues that Walls’ assertion that Wilson had a motive to testify falsely is “absurd” because Wilson had absolutely no stake in the outcome of this case.

Finally, Travelers argues that Walls’ assertion that the trial court purposely framed its findings in terms of witness credibility to avoid meaningful appellate review is unfounded. Travelers points out that the trial court recognized the conflicting nature of the testimony, and, therefore, based its decision upon witness credibility. Consequently, Travelers contends that because the Workers’ Compensation Court was in the best position to observe the character and demeanor of the witness, we should not substitute our judgment for that of the trial court. We agree.

We review the Workers’ Compensation Court’s findings of fact to determine if they are supported by substantial evidence. Wunderlich v. Lumbermens Mut. Casualty Co. (1995), 270 Mont. 404, 408, 892 P.2d 563, 566. We have defined “substantial evidence” as consisting of “more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Wunderlich, 892 P.2d at 566. Furthermore, “[w]here the findings are based on conflicting evidence, the Court’s function is to determine whether there is substantial evidence to support the findings and not to determine whether there is sufficient evidence to support contrary findings.” Nelson v. Semitool, Inc. (1992), 252 Mont. 286, 289, 829 P.2d 1, 3. We will not substitute our judgment for that of the trial court when the issue concerns the weight given to certain evidence or the credibility of the witnesses. Wunderlich, 270 Mont. 404, 892 P.2d at 566.

Walls requests that we reframe our standard of review concerning witness credibility by adopting a more reasonable and equitable standard. However, Walls, in essense, is requesting that we review the record to determine whether substantial credible evidence supports findings contrary to those of the Workers’ Compensation Court. Clearly, this is not the appropriate standard. See Nelson, 829 P.2d at 3. As is evident from the record, the Workers’ Compensation Court was presented with conflicting evidence, from witnesses testifying in person. Therefore, we will defer to the trial court’s judgment concerning witness credibility and review the record only to determine whether the trial court’s findings are supported by substantial credible evidence. See Wunderlich, 892 P.2d at 566.

Additionally, Walls alleges that Wilson had a motive to testify falsely and that Wilson’s testimony was impeached by two other witnesses whose testimony conflicted with a portion of her own. Therefore, Walls argues that the trial court erred by giving Wilson’s testimony any weight. We give due regard to the trial court not only to judge the credibility of the witnesses, but to resolve inconsistencies in witness’ testimony. Rafanelli v. Dale (1996), [278 Mont. 28], 924 P.2d 242, 249. Furthermore, “even if a portion of a witness’ testimony is shown to be false or unreliable, the trier of fact need not discount the entirety of that witness’ testimony.” Rafanelli, 924 P.2d at 249 (citing Kis v. Pifer (1978), 179 Mont. 344, 350, 588 P.2d 514, 517-18).

In this case, the Worker’s Compensation Court was the trier of fact. The trial court noted, in Finding of Fact No. 7, that Wilson’s testimony concerning who took the lawn ornament to Wilson’s car conflicted with other witness testimony. However, the trial court stated that resolving this conflict “is not central to my decision.” It is clear from the trial court’s findings that the trial court carefully considered Wilson’s testimony and accepted her testimony concerning the circumstances surrounding Walls’ alleged back injury. Furthermore, despite her allegation, Walls has presented absolutely no proof that Wilson was motivated to testify falsely to prevent Walls from obtaining benefits for her alleged work-related injury. Therefore, we conclude that the trial court did not err in relying on Wilson’s testimony.

Furthermore, despite Walls’ argument, the trial court did not rely solely on the testimony of Wilson. Rather, the Workers’ Compensation Court made detailed findings concerning specific testimony of numerous witnesses. Moreover, in Finding of Fact No. 22, the trial court summarized this conflicting testimony and recorded its decision concerning the credibility of the witnesses as follows:

After considering all of the testimony, especially the testimony recited in these findings of fact, and considering the demeanor of the witnesses, I find the testimony of Wilson, Crowe, Miranti and Dennis Olson credible and do not believe that claimant hurt her back at work. According to claimant, her alleged injury was witnessed by Wilson. Wilson, however, testified credibly that she saw no sign of any injury and that claimant did not report any injury to her. Claimant asserted that she told numerous people of her injury prior to her 4:30 p.m. meeting with Crowe but did not call a single witness who could verify her assertion. Olson, who has a close relationship with claimant, recalled claimant telling him of the incident the next day. Claimant’s assertion that she called Dr. Dietrich’s office at 3:00 p.m. on the day of her alleged injury did not ring true in light of the doctor’s notes indicating that she did not call him until June 8th and that at the time he contemplated seeing her only if the medication he prescribed by telephone did not alleviate her symptoms. I find Crowe’s testimony concerning his 4:30 p.m. meeting with claimant and his awareness that claimant was moving to be credible and convincing. Miranti’s testimony that claimant told him that she hurt her back while “moving” was also credible and convincing. While “moving” could refer to “moving the [lawn] ornament,” I find such explanation of her statement to be implausible, especially in light of claimant’s assertion that she hurt her back when “lifting” the ornament. Finally, the testimony of claimant’s witnesses did not persuade me that claimant injured herself at work. Claimant told those witnesses of the alleged accident after she had been placed on probation and after she had already staked out a claim for a work-related injury. While their testimony about the move occurring after June 2nd was credible, claimant moved her furniture and effects over several days and I am persuaded that she in fact commenced moving things out of Carter’s residence at the end of May when she admittedly made her decision to move. [Emphasis in the original.]

After reviewing the record and the trial court’s detailed findings, as referred to above, we conclude that the trial court did not ignore any witness testimony. Rather, the trial court considered all witness testimony, observed the demeanor of the witnesses, judged their credibility and concluded that the testimony of Travelers witnesses was more credible than the testimony of Walls’witnesses. Based upon this determination, the trial court concluded that Walls did not injure her back at work, and, therefore, denied her compensation and medical benefits. The trial court’s decision was grounded in the record, in its judgment of the credibility and demeanor of all the witnesses and in the law. Accordingly, we hold that substantial credible evidence in the record supports the Workers’ Compensation Court’s findings of fact and decision.

Affirmed.

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


text:
    NOVEMBER 1996 CALENDAR
    STATE OF MONTANA, Plaintiff, vs. David G. Barth, Defendant.
    NO. 11130
    DECISION
    DATED this 2nd day of December, 1996.
   On September 13, 1996, it was the judgment of the Court that defendant’s prior suspended sentence for the offense of Domestic Abuse, a Felony, is hereby revoked and that the defendant be and he is hereby 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. The sentence shall run concurrently with the sentence imposed in Mineral County. Defendant shall receive credit from July 9,1994, through July 19,1994; from August 3,1994, through September 9,1994; and from July 16,1996, through date of sentencing, September 13, 1996; for one hundred nine (109) days jail time which he has previously served.

On November 14,1996, 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 petition shall be dismissed with prejudice.

Done in open Court this 14th day of November, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Joy L. Brown, Defendant.
    NO. DC 91-001
    DECISION

      DATED this 2nd day of December, 1996.
   On August 21,1996, it was the judgment of the Court that the judgment dated May 31, 1991, is revoked and set aside. The defendant is sentenced to six years in the Montana Women’s Correctional Center for each count, to run concurrently, with two years suspended upon the defendant’s successful compliance with the terms of probation set forth in the August 21,1996 judgment. The defendant shall be given credit for zero (0) days served in jail prior to sentencing.

On November 14,1996, 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 Aileen Miller, legal intern of the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that 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 14th day of November, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Aileen Miller, legal intern of the Montana Defender Project, for representing Joy L. Brown in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Shannon P. Calder, Defendant.
    NO. BDC 95-278
    DECISION
   On April 18,1996, it was ordered, adjudged and decreed that for the offense of Count I - Driving or in actual physical control of a motor vehicle while under the influence of alcohol and/or drugs (5th offense), a felony, the defendant is sentenced to the Montana Department of Corrections for a period of ten (10) years, with five (5) years suspended, upon the conditions as stated in the April 18,1996judgment. The defendant is granted twelve (12) days’ credit for time served prior to sentencing (October 19-30,1995). It is further ordered , adjudged and decreed that for Count II - Driving while privilege to do so is revoked, a misdemeanor, the defendant is sentenced to six (6) months in the Lewis & Clark County Jail, with all of that time suspended, upon conditions as stated in the April 18, 1996 judgment. It is further ordered, adjudged and decreed that for Count III - Driving without liability insurance in effect (5th), a misdemeanor, the defendant is sentenced to six (6) months in the Lewis & Clark County Jail, with all of that time suspended, upon conditions as stated in the April 18, 1996 judgment. The foregoing sentences shall run concurrently with each other.

DATED this 2nd day of December, 1996.

On November 14,1996, 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 14th day of November, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Wm. Neis Swandal

Alternate Member, Hon. Robert Boyd

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