text:
    STATE OF MONTANA, Plaintiff, vs. STEVEN KEEFE, Defendant.
    NO. ADC-86-059
    DECISION
    DATED this 23rd day of July, 1992.
   On January 17, 1986, the Defendant was sentenced to Count I, Life Sentence, Deliberate Homicide plus ten (10) years for the use of a weapon; Count II, Life Sentence, Deliberate Homicide plus ten (10) years for the use of a weapon; Count III, Life Sentence, Deliberate Homicide plus ten (10) years for the use of a weapon; Count IV, ten (10) years for Burglary; all above sentences shall be served consecutively. The defendant shall be designated a dangerous offender and must serve thirty (30) years on each life sentence, less good time allowance provided for in Section 53-30-105, MCA. The defendant is declared ineligible for parole and participation in the supervised released program.

On July 23,1992, 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 Michael Donahoe, Attorney from Helena, Montana. The state was represented by Stephen Hagerman, Deputy County Attorney, from Great Falls, Montana.

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 if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

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

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Frank M. Davis, Acting Member, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Michael Donahoe, Attorney at Law from Helena for his assistance to the defendant and to this Court. We also wish to thank Stephen Hagerman, Deputy County Attorney from Great Falls for representing the state.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER JUSTICE McDONOUGH

license: Public Domain

text:
    PAYNE REALTY AND HOUSING, INC., Plaintiff, v. FIRST SECURITY BANK OF LIVINGSTON, a Montana corporation, Defendant and Appellant, and HARRY JOE BROWN, JR., Defendant, Respondent and Cross-Appellant.
    No. 92-067.
    Submitted on Briefs June 25, 1992.
    Rehearing Denied January 14, 1993.
    Decided December 17, 1992.
    49 St.Rep. 1098.
    256 Mont. 19.
    844 P.2d 90.

      For Appellant: Sidney R. Thomas, Moulton, Bellingham, Longo & Mather, Billings.
    For Respondent: Carl A. Hatch, Small, Hatch, Doubek & Pyfer, Helena.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

This appeal involves a dispute between First Security Bank of Livingston and Harry Joe Brown over an earnest money deposit. Each party contends it is entitled to the $50,000 that Brown deposited with a realtor to secure the purchase of a ranch sold by the bank. First Security Bank of Livingston appeals from summary judgment entered in the Sixth Judicial District Court, Park County, Montana, in favor of Respondent, Harry Joe Brown.

Appellant contends that genuine issues of material fact exist which preclude summary judgment. We reverse and remand for resolution of the factual issues.

The sole issue raised by the appellant is:

Did the District Court err when it granted summary judgment in favor of Respondent and ordered the return of Respondent’s earnest money deposit and the payment of attorney fees?

On August 29, 1988, Harry Joe Brown, Jr. (Brown) approached Payne Realty (Realtor) in Livingston, Montana. Brown wanted to purchase land in or near the Paradise Valley. After reviewing a brochure which described real estate known as the Riverside Ranch, Brown expressed an interest in the property. Brown arranged to view the property with the owner of the Riverside Ranch, First Security Bank of Livingston (Bank). While touring the Riverside Ranch, Brown was told of another piece of property known as the Elkhorn Ridge Ranch. The Bank owned this real estate as well.

The Bank and Brown entered into a buy-sell agreement for the Riverside Ranch on August 29, 1988. The agreement required that Brown deposit $50,000 with the Realtor to insure Brown’s compliance with the agreement. In exchange, the Bank promised to remove the property from the market for the duration of the buy-sell agreement. As part of the buy-sell agreement, the Bank agreed to provide financing for Brown. In addition, Brown received an option to purchase the Elkhorn Ridge Ranch. Finally, at Brown’s request, the parties agreed on an early closing date, and planned to meet on October 1, 1988, in New York City to finalize the sale.

After Brown and the Bank President, Bruce Erickson (Erickson), reached a verbal agreement, the Realtor drafted the written buy-sell agreement. That same afternoon, Brown returned to the Realtor’s office and “read every word” of the completed document. Brown made several changes to the agreement, including the deletion of two of the three standard remedies available to the seller upon a default by the buyer. Brown requested that forfeiture of the earnest money deposit be the only remedy available to the Bank in the event of Brown’s default. Also, according to the Realtor, Brown requested the deletion of the lines in the buy-sell agreement that make the buy-sell agreement contingent on the buyer obtaining third-party financing.

Brown deposited $50,000 with the Realtor. In exchange, the Bank removed the ranch from the market for the fall season, a prime marketing time for Paradise Valley property. The Bank also incurred significant expense in preparing the property for Brown. The Bank moved the current tenants off the property by buying out their leasehold interest for approximately $17,000. Further, at Brown’s request, the Bank removed a complex irrigation/sprinkler system at a cost of $45,000.

On October 1, 1988, Erickson flew to New York City with his wife to complete the sale. At the closing, Brown informed Erickson that he was “disenchanted” with the sale. Brown requested a one-day extension of the closing date, which Erickson granted. Brown asked for this extension so that his counsel could review the closing documents, including a mortgage agreement proposed by the Bank. On October 2, 1988, Brown notified the Realtor, without notice to Erickson, that he was no longer interested in the Riverside Ranch purchase and wanted his earnest money deposit returned. On the same day, Brown asked the Bank for a one-week extension so that his Montana counsel could review the financing documents. Erickson granted this second extension as well. Meanwhile, the Realtor informed the Bank that Brown had contacted the real estate agency and wanted his deposit returned to him.

On October 4,1988, the Bank provided Brown with a title commitment. On October 5,1988, Brown sent another message to the Realtor asking again for the return of his money. The Bank did not hear from Brown on the last scheduled closing date of October 11,1988. Twenty days after October 11,1988, the Bank’s attorney received a letter from Brown’s attorney requesting the return of Brown’s deposit. Included with the letter was a list of Brown’s objections to the mortgage documents furnished by the Bank.

The Bank’s attorney responded by asking whether Brown would be willing to close the real estate deal if all of his objections were resolved. Brown’s attorney informed the Bank that Brown did not wish to proceed with the transaction.

Payne Realty and Housing, Inc. initiated this lawsuit on October 24, 1988, by filing an interpleader action. Payne Realty asked the District Court to determine whether First Security Bank of Livingston, the seller of the ranch, or Harry Joe Brown, the purchaser, was entitled to the money paid by Brown to secure the ranch sale. Following discovery, Payne Realty was dismissed from the action and the parties were realigned with Brown as plaintiff and the Bank as defendant.

On May 23, 1990, District Judge Byron L. Robb granted summary judgment for the Bank based on an “ordinary, complete and imambiguous buy-sell agreement” and Brown’s failure to complete the sale. The Buyer appealed the judgment to this Court. On March 4, 1991, this Court reversed the District Court judgment, finding genuine issues of material fact existed regarding the parties’ intentions about financing terms. Payne Realty and Housing, Inc. v. First Security Bank of Livingston (1991), 247 Mont. 374, 807 P.2d 177.

Upon remand to the District Court, Brown disqualified Judge Robb and District Judge John M. McCarvel assumed jurisdiction of the case. Brown moved for summary judgment. The Bank moved to amend its answer and cross-claim. Judge McCarvel granted the Bank’s motion to amend; however, all of the affirmative defenses set forth in the Bank’s amended answer were dismissed when Judge McCarvel entered summary judgment for Brown on September 23, 1991. In the District Court opinion, Judge McCarvel reasoned that the Bank, acting as both lender and seller, did not offer financing terms consistent with the buy-sell agreement; consequently, the financing terms were unacceptable to Brown and there was no “meeting of the minds.” The Judge ordered the return of the earnest money to Brown, together with interest and attorney fees.

The Bank appeals the summary judgment entered by Judge Mc-Carvel, contending that genuine issues of material fact exist. Brown cross-appeals the court’s refusal to award paralegal fees.

Did the District Court err when it granted summary judgment in favor of Respondent and ordered the return of Respondent’s earnest money deposit and the payment of attorney fees?

The purpose of summary judgment is to encourage judicial economy through the elimination of any unnecessary trial. However, summary judgment is never to be a substitute for trial if there is an issue of material fact. Reaves v. Reinbold (1980), 189 Mont. 284, 288, 615 P.2d 896, 898. Summary judgment is proper only when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.

It is well established that the party moving for summary judgment has the burden of showing a complete absence of any genuine factual issues. D’Agostino v. Swanson (1990), 240 Mont. 435, 442, 784 P.2d 919, 924; Cereck v. Albertson’s Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511. To defeat the motion, the nonmoving party must set forth facts demonstrating a genuine factual issue exists. O’Bagy v. First Interstate Bank of Missoula (1990), 241 Mont. 44, 46, 785 P.2d 190, 191. All reasonable inferences that may be drawn from the offered proof must be resolved in favor of the party opposing summary judgment. D’Agostino, 784 P.2d at 924; Cereck, 637 P.2d at 511.

As the moving party, Brown must carry the burden of showing a complete absence of factual issues. The Bank must demonstrate a factual controversy does exist. As we review the evidence, we will draw all reasonable inferences in favor of the nonmoving party, the Bank. If there is any doubt regarding the propriety of the summary judgment motion, it should be denied. Whitehawk v. Clark (1989), 238 Mont. 14, 18, 776 P.2d 484, 486-87.

In his motion for summary judgment, Brown makes two arguments: (1) the buy-sell agreement executed between the parties was not a binding contract; or in the alternative (2) if the buy-sell agreement was a binding contract, the Bank breached the contract by not providing financing that complied with the buy-sell agreement.

In support of its argument on appeal that summary judgment was inappropriate because factual controversies exist, the Bank disputes Brown’s two contentions and raises four claims of its own. The Bank disputes that (1) the buy-sell agreement was a valid and binding contract; and (2) that Brown breached the binding buy-sell agreement when he refused to complete the purchase. Additionally, the Bank argues: (1) Brown manufactured reasons not to close and therefore prevented the Bank’s performance; (2) Brown breached the covenant of good faith and fair dealing; (3) based on his representations and behavior, Brown was estopped from objecting to the closing of the transaction; and (4) Brown committed negligent misrepresentation regarding his intentions.

The only way that the District Court could properly grant summary judgment to Brown is by determining that, based on the submitted record, (1) Brown prevailed on the first of his two arguments or that he prevailed on his second argument; and (2) that Brown can establish there are no factual issues related to the Bank’s claims.

This is the second time that this lawsuit has come before this Court. When determining whether summary judgment is appropriate, “the papers supporting movant’s position are closely scrutinized, while the opposing papers are indulgently treated, in determining whether the movant has satisfied his burden.” Kober v. Stewart (1966), 148 Mont. 117, 122, 417 P.2d 476, 479. In viewing the record in the light most favorable to the nonmoving party, the Bank, we conclude that material factual issues exist and that these issues must be resolved at trial before the earnest money is properly awarded.

EXISTENCE OF CONTRACT

The Bank presented facts sufficient to establish that the parties entered into a valid and binding buy-sell agreement. The Bank refers the court to the buy-sell agreement itself. At the top of the agreement it reads: “This is a legally binding contract.” As required by the terms of the agreement, Brown deposited $50,000 with the Realtor to insure his promise to complete the sale. In exchange, the Bank removed the property from the market for the duration of the buy-sell agreement. This exchange of consideration is sufficient to create a binding contract. Wendy’s of Montana v. Larsen (1982), 196 Mont. 525, 529, 640 P.2d 464, 466. Subsequent submission of a mortgage agreement which did not conform with the terms of the buy-sell agreement may be evidence that there was no “meeting of the minds” at the time that the buy-sell agreement was signed; however a variation in terms does not establish that fact as a matter of law. An equally plausible explanation is that the variation in terms was inadvertent.

BREACH OF CONTRACT

In Brown’s second argument, he contends that if the buy-sell agreement was binding, the Bank breached the contract when the Bank would not provide financing terms that complied with the buy-sell agreement. In support of his argument, Brown submitted to the court: (1) his own affidavit alleging that the Bank was “intractable” on changing terms and that in proposal after proposal the Bank refused to provide financing that was consistent with the buy-sell agreement; (2) an affidavit by Brown’s attorney alleging that he had tried, on behalf of Brown, to negotiate acceptable changes in the proposed note and mortgage but was unable to obtain any agreement with the Bank; and (3) a post-closing letter from Brown’s attorney to the Bank’s attorney indicating that either there was no meeting of the minds or the Bank refused to go forward with the sale on the terms set forth in the buy-sell agreement.

The Bank raised a question of fact, in regard to Brown’s second contention that the Bank breached the contract, by supplying the court with evidence that Brown, rather than the Bank, was the breaching party. Bank affidavits suggest the Bank intended to amend nonconforming financing terms to conform with the terms of the buy-sell agreement; yet, Brown did not wish to proceed with the transaction. Drawing inferences from the affidavits most favorable to the Bank, a fact-finder could find that the Bank was willing to provide financing consistent with the buy-sell agreement if Brown would identify the problem and agree to perform his part of the contract.

BANKS CLAIMS

The Bank asserts four claims. First, the Bank correctly asserts that a disputed factual issue exists concerning whether Brown manufactured reasons not to complete the purchase, thereby preventing the Bank’s performance of the buy-sell agreement. Bank President, Bruce Erickson, testified in his affidavit that when Brown requested changes in the mortgage terms, the Bank accommodated Brown’s requests by amending terms at variance with the buy-sell agreement. For example, the Bank agreed to Brown’s demand that the deficiency judgment clause be removed from the mortgage.

Erickson supplied the court with evidence indicating that at the closing scheduled for October 1, 1988, Brown told the Bank he had become “disenchanted” with the property. Erickson testified that the Bank made numerous attempts to ascertain the nature of Brown’s objections to the completion of the sale, but that both Brown and his attorney refused to identify or discuss objections at the closing on October 1, 1988, or at any of the subsequently scheduled meetings.

Erickson testified that the Bank granted an extension of the October 1, 1988, closing date to Brown so that his counsel could review the financing documents; and that Brown contacted the Realtor on October 2,1988, without notice to the Bank, and demanded the return of the earnest money. Brown contacted the Realtor again on October 5, 1988, asking for the return of the earnest money.

The Bank did not hear from Brown on the last scheduled closing date of October 11, 1988. Brown did not indicate to the Bank his objections to the financing documents until nearly three weeks after three closing dates had passed. On October 31, 1988, twenty days after the final closing date, Brown’s attorney finally wrote to the Bank and listed Brown’s objections to the mortgage terms.

The Bank’s attorney, Sid Thomas (Thomas), testified that he responded to the letter from Brown’s attorney and asked: “[ajssuming all of the items in your letter are resolved, is he [Brown] still willing to proceed with the transaction?” Thomas testified that Brown’s attorney indicated Brown was unwilling to proceed.

The Bank President testified by affidavit that the Bank at all times “stood ready, willing and able to complete the transaction upon the terms set forth in the buy-sell agreement,” and that the Bank was willing to accommodate any of Brown’s reasonable concerns. Despite the Bank’s efforts to answer Brown’s needs, Brown refused to complete the purchase.

The Bank’s legal assertion is correct: it is well-settled in Montana that one cannot prevent performance of a contract and then avail oneself of its non-performance. Williams Bros. Construction v. Vaughn (1981), 193 Mont. 224, 227, 631 P.2d 688, 690. Brown cannot object to the completion of the sale and refuse to discuss his objections with the Bank, and then claim that the Bank would not perform.

Second, there is a disputed factual issue regarding whether Brown breached the covenant of good faith and fair dealing. A party can breach the covenant of good faith and fair dealing without breaching any express term in the contract by failing to deal honestly in fact and failing to observe reasonable commercial standards of fair dealing in the trade. Story v. City of Bozeman (1990), 242 Mont. 436, 450, 791 P.2d 767, 775. If a party breaches the covenant of good faith and fair dealing, it constitutes a breach of the contract itself. Story, 791 P.2d at 775.

The Bank alleges that a significant factual dispute exists concerning whether Brown had good faith intentions to complete the sale. A reasonable inference from Erickson’s testimony is that the Bank was “ready, willing, and able” to accommodate Brown’s concerns and amend the inconsistent terms (i.e., conflicting assumption of mortgage clause and “due on sale” clause) to bring the closing to fruition. Brown did not raise objections, but indicated that he did not wish to proceed with the transaction. Drawing inferences from these facts in a light most favorable to the Bank, we determine that the Bank has raised an issue of disputed fact as to Brown’s good faith intentions.

Third, there is a genuine issue of material fact concerning the Bank’s claim of promissory estoppel. The Bank asserts that, by his words and actions, Brown was estopped from raising objections to the completion of the purchase.

To establish promissory estoppel in Montana, the following elements must be present:

(1) a promise clear and -unambiguous in its terms; (2) reliance on the promise by the party to whom the promise is made; (3) reasonableness and foreseeability of the rebanee; and (4) the party asserting the reliance must be injured by the reliance.

Keesun Partners v. Ferdig Oil Co., Inc. (1991), 249 Mont. 331, 339, 816 P.2d 417, 422.

The Bank contends that by entering into the buy-sell agreement, signing the agreement, and insisting on an early closing, Brown lead the Bank to believe he would close the transaction. Brown’s actions and representations caused the Bank to incur substantial expenses in preparing the property for Brown. The Bank moved the current tenants off the property, by buying out their leasehold interest for approximately $17,000. Further, at Brown’s request, the Bank removed a complex irrigation/sprinkler system at a cost of $45,000.

In a case similar to ours, the Connecticut Supreme Court held that a purchaser’s obligation to perform would not be excused on the basis of a failure to obtain financing on purchaser’s terms when sellers had evicted tenants and had taken the property off the market in reliance upon the purchaser’s promise to close. Loda v. H.K. Sargeant & Assoc. Inc. (Conn. 1982), 448 A.2d 812. The Bank in our case has established there is a factual dispute with regards to its claim of promissory estoppel.

Based on the record he submitted to the court, we conclude that Brown has not established an absence of factual issues with regard to his allegation that the buy-sell agreement was not binding; or that if the contract was binding, the Bank was the breaching party. The Bank has submitted evidence from the record that factually disputes Brown’s two claims.

We further conclude that there are factual issues regarding the Bank’s claims that Brown (1) prevented the Bank from performing the contract; (2) breached the covenant of good faith and fair dealing; (3) should be estopped from avoiding his obligation under the contract; and (4) negligently misrepresented his intentions.

The parties have offered contradictory evidence about how willing the Bank was to revise nonconforming terms to complete the real estate transaction. It is not clear whether Brown wished to abandon the contract or whether the Bank refused to tender financial terms consistent with the buy-sell agreement. Because there are contradictory facts on material issues, we hold that Summary Judgment is inappropriate.

In light of our holding above, we will not address the issue concerning the exclusion of paralegal fees raised by Brown on this appeal. The order of the District Court is reversed and remanded for resolution of the factual issues.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and WEBER concur.

JUSTICE McDONOUGH

dissenting:

I respectfully dissent. I would affirm. By virtue of the terms of the buy-sell agreement and the Bank’s breach thereof, Brown is entitled to return of his $50,000 earnest money. The Bank failed to perform in accordance with the buy-sell written agreement as to a material clause. This is uncontroverted and there is no issue of fact relative to this breach.

The Bank also added material clauses to the mortgage which were not contained in the agreement, all of which was to the Bank’s benefit. These clauses included a default and the balance due on death of Brown, a default and the balance due when the Bank deems itself insecure, and also giving the Bank a lien on any personal property attached to the land.

The buy-sell agreement provided as to financing as follows:

$ 50,000.00 earnest money to be applied at closing
$ 200,000.00 as additional cash down payment payable on or before closing
$ 750,000.00 balance of the purchase price will be paid at closing as follows: First Security Bank to carry a note mortgage over 10 years, interest rate to be prime rate plus -0- with a cap rate of 12%, no cap on floor, & no points. Buyer to pay monthly payments. Prime rate is fixed by City Bank of New York. Said mortgages are assumable on sale of all, or if in part, pro rata on acreage basis.

At closing, the Bank breached the buy-sell agreement by presenting a mortgage containing a clause relative to sale of the property in contradiction with the wording of the buy-sell agreement. This agreement provided the mortgage was assumable by the later buyer upon sale of all, or if sale in part, pro rata on an acreage basis. The Bank’s mortgage contained the “due on sale” clause:

DUE ON SALE - CONSENT BY LENDER. Lender may at its option, declare immediately due and payable all sums secured by this mortgage upon the sale or transfer, without the Lender’s prior written consent, of all or any part of the Real Property, or any interest in the Real Property.

This “due on sale” clause in effect changed the wording of the agreement that the mortgage would be assumable on sale. As a matter of law and fact the Bank violated the buy-sell agreement by giving itself the option to accelerate the balance if it does not give prior written consent to the sale. The Bank has never presented the buyer with financing documents which comply with the buy-sell agreement, even though that would cure the deficiency here.

The Bank breached the buy-sell agreement and the buyer is entitled to a refund of the $50,000 earnest money and attorney fees.


text:
    STATE OF MONTANA, Plaintiff, vs. STEVEN KEEFE, Defendant.
    NO. DC-87-52
    DECISION
    DATED this 23rd day of July, 1992.
   On January 15,1988, the Defendant was sentenced to four (4) years in the Montana State Prison for Attempted Escape. The sentence imposed is to be served consecutively with the sentence currently being served by the Defendant.

On July 23,1992, 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 Michael Donahoe, Attorney from Helena, Montana. The state was represented by Stephen Hagerman, Deputy County Attorney, from Great Falls, Montana.

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 if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

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

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Frank M. Davis, Acting Member, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Michael Donahoe, Attorney at Law from Helena for his assistance to the defendant and to this Court. We also wish to thank Hagerman, Deputy County Attorney from Great Falls for representing the state.


text:
    STATE OF MONTANA, Plaintiff, vs. WILLIAM OSCAR HENDRICKSON, Defendant.
    NO. ACD-89-014
    DECISION
   On June 28,1989, the Defendant was sentenced to Count I, thirty (30) years with ten (10) years suspended for Sexual Intercourse Without Consent; Count II, twenty (20) years with five (5) years suspended for Sexual Assault; the sentence shall be served consecutively, plus conditions. The defendant shall receive credit for 163 days time served and he shall be designated as a Dangerous Offender for purposes of parole.

On July 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 23rd day of July, 1992.

The Defendant was present and was represented by Ken Olson, Attorney at Law from Great Falls, Montana. The state was represented by Stephen Hagerman, Deputy County Attorney from Great Falls.

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 if such is possible. 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 sentences imposed on the two counts shall run concurrent with each other rather than consecutive, with the added condition, that the defendant, Mr. Hendrickson, will not be allowed any contact with any child under the age of 18 years of age unless such contact is supervised by an adult person who is approved in advance by Mr. Hendrickson’s probation officer.

The reasons for the decision are (1) this is the first conviction, felony or otherwise, of the defendant; (2) the amendment brings the sentence into conformity with other sentences imposed on other defendants for other similar crimes; (3) by the defendant’s pleading guilty, he has saved the state the cost of a trial, but more importantly, (4) the defendant has made it not necessary to put his children through the trauma of testifying at a trial. This is something that can be very traumatic on children, especially children of this age, and some consideration is deserved for that.

Hon. Ed. McLean, Chairman, Hon. Frank M. Davis, Acting Member, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Ken Olson, Attorney at Law from Great Falls, for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. SHERMAN PAUL HAWKINS, Defendant.
    NO. Dc-87-087
    DECISION
   On May 23, 1988 and October 25,1988, the Defendant was sentenced to Count I, Assault, nine (9) years consecutive to the term of Count HI, five (5) years and a consecutive ten (10) year sentence as a persistent felony offender; consecutive with the life term in Cause #8987, Murder in the First Degree; thirteen (13) years as a persistent felony offender to be served consecutively to the term imposed for the crime of Assault; with credit for 464 days time served. Count III, Criminal Possession of Dangerous Drugs, five (5) years consecutive with the term of Cause #8987, Murder in the First Degree, and concurrent with the term of Count IV; plus ten (10) years for persistent felony offender, consecutive with the term of Count III and Count IV; plus a $20 charge. Count IV, Escape, six (6) months to be served concurrently with Count IH, consecutive with the life term in Cause #8987.

On July 23,1992, 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 to reduce the sentence or affirm it. However, if they felt an increase was a possibility, the board would continue the hearing and would appoint counsel to represent the defendant. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 23rd day of July, 1992.

After careful consideration, it is the unanimous decision of the Sentence Review Division that on the Possession of Dangerous Drugs, the defendant shall receive five (5) years plus ten (10) years as a Persistent Felony Offender, plus credit given for 464 days. That sentence is to run consecutively to the Life Sentence the defendant received. In addition, on the Assault conviction, he is to receive a sentence of nine (9) years plus thirteen (13) years as a Persistent Felony Offender, plus credit for 464 days against that sentence. That sentence is to run consecutive to the sentence for the Possession and Persistent Felony Offender statute sentence attached to the Possession charge as well as consecutive to the Life Sentence imposed.

The reason for the sentence is that the Division believed it conforms to the original sentence imposed by Judge Baugh for both the Possession charge and the Assault charge with the Persistent Felony Offender statute sentence attached to each.

Hon. Ed McLean, Chairman, Hon. Frank M. Davis, Acting Member, Hon. Thomas M. McKittrick, Judges.

The Sentence Review Board wishes to thank Mr. Hawkins for his assistance to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. CHARLES JAY DEVLIN, Defendant.
    NO. 7845
    DECISION
   On February 25,1988, the Defendant was sentenced to fifteen (15) years with five (5) years suspended with conditions, for Aggravated Assault. The Defendant shall pay $9,380.13 restitution; the Defendant shall reimburse Missoula County for court appointed attorney in the amount of $4,008.00; and the Defendant shall pay a fee of $20.00 through the Clerk of the District Court. The Defendant shall receive credit for 258 days time served.

On July 23,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was not present and the Court received a written waiver of his presence. Mr. Raymond Dayton, Attorney at Law from Anaconda represented the Defendant. The state was not represented.

Before hearing the application, the Sentence Review Division advised Mr. Dayton that the Board has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The attorney was further advised that there is no appeal from a decision of the Sentence Review Division. The attorney acknowledged his client 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 imposed by Judge Green shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

DATED this 23rd day of July, 1992.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Frank M. Davis, Acting Member, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Mr. Dayton, Attorney at Law from Anaconda, for his assistance the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. KENNETH FRIEDLANDER, Defendant.
    NO. DC-91-42
    DECISION
    DATED this 23rd day of July, 1992.
   On October 16,1991, the Defendant was sentenced to Court I, ten (10) years for Assault with four (4) years suspended with conditions. Count II, six (6) months in the Lake County Jail for Domestic Abuse. The sentences shall be served concurrently and credit is given for one day time served.

On July 23,1992, 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 Jim Yellowtail, Attorney at Law from Pablo, Montana. The state was represented by Larry Nistler, Lake County Attorney.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. 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 imposed by Judge C.B. McNeil shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Jim Yellowtail, Attorney from Pablo for his assistance to the defendant and to this Court. The Board would also like to thank Larry Nistler, Lake County Attorney for his attendance on behalf of the State.


text:
    STATE OF MONTANA, Plaintiff, vs. PATRICIA LEE REMINGTON, Defendant.
    NO. 92-01
    DECISION
    DATED this 23rd day of July, 1992.
   On April 10, 1992, the Defendant was sentenced to a term of four (4) years from Criminal Possession of Dangerous Drugs. Credit is given for 18 days time served. Surcharge $20. Fine $1,000. If said sums are not paid by the time defendant is granted parole, she shall be detained at said prison at the rate of $25 per day until the total is satisfied, and she shall not be paroled out of state until said sums are paid or time served therefor.

On July 23,1992, 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 Bill Frazier, Attorney at Law from Big Timber, Montana. 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 if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

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

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Mr. Frazier, Attorney from Big Timber for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. STACY GENE HALL, Defendant.
    NO. 7883 and 6938
    DECISION
   On December 15,1986, the Defendant was sentenced in Cause 6938, to three counts of Theft, ten (10) years on each count to be served consecutively with 7 years on each count suspended with conditions. Credit is given for three (3) days time served. Restitution of $1987.50, fees for court appointed attorney of $4586.20, fee of $20 on each count for a total of $60, and $5562.69 costs of prosecution are ordered paid by the Defendant.

DATED this 23rd day of July, 1992.

On February 19,1988, the Defendant was sentenced to ten (10) years for Attempted Burglary, to be served consecutively to the terms for Causes 6938 and 6792, but concurrent with the suspended portion of Cause 6938.

On July 23, 1992, the Defendant’s application for review of these sentences 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 Karen Townsend, Deputy County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentences which were imposed by Judges Wheelis and Harkin of Missoula. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

Judge McKittriek was the sentencing judge in another matter with this Defendant and stated he would recuse himself from this matter if the Defendant wished. The Defendant acknowledged that Judge McKittriek had sentenced him in another matter, but stated he felt comfortable with Judge McKittriek sitting in on this review.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentences shall be affirmed as originally imposed, however, the cost of the trial in Cause 6938, shall be reduced by one-half.

The reason for the decision is that Mr. Hall should not be charged with the cost of the first mistrial, that resulted in a hung jury.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittriek, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Mr. Hall for his assistance to this Court. We also wish to thank Karen Townsend for appearing on behalf of the State.


text:
    STATE OF MONTANA, Plaintiff, vs. RICKY LEE WORDEN, Defendant.
    NO. 4483
    DECISION
   On October 22, 1979, the Defendant was sentenced to forty (40) years for Robbery. Said sentence is to rim consecutively to any sentences defendant is now serving, it was further ordered that the defendant is not eligible for parole or work furloughs during any period of the sentence imposed herein. Dangerous Designation.

On July 23,1992, 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 is here to consider the sentence which was imposed by Judge Peter Meloy. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 23rd day of July, 1992.

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

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required-to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Rick Worden for his assistance to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. KENNETH DALE NETTLETON, Defendant.
    NO. CDC-86-107
    DECISION
    DATED this 23rd day of July, 1992.
   On August 28, 1987, the Defendant was sentenced to a term of sixty (60) years for Deliberate Homicide plus conditions. He was given credit for 305 days time served and designated as a dangerous offender.

On July 23,1992, 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 not represented by counsel. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority to reduce the sentence or affirm it. However, if they felt an increase was a possibility, the board would continue the hearing and appoint counsel to represent the defendant. The defendant did not want to proceed with the hearing at this time,

Therefore, the Petition is dismissed.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Acting Member, Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. LLOYD JAMES WILSON, Defendant.
    NO. 1181
    DECISION

      DATED this 23rd day of July, 1992.
   On July 6,1987, the Defendant was sentenced to Count I, one hundred (100) years for Deliberate Homicide plus ten (10) years for the use of a weapon to run consecutively; Count II, seventy-five (75) years for Accountability for Deliberate Homicide plus ten (10) years for the use of a weapon to run consecutively; Counts I and II shall run consecutively; the Defendant is ineligible for parole or participation in any supervised release program for the first thirty (30) years and no good time allowances shall be given against this thirty (30) year term; credit for 135 days served; Dangerous Offender Designation.

On July 23, 1992, the Defendant’s application for review of that sentence was considered 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 to increase the sentence, to leave it as it is, or reduce it. In the event that there is a possibility of increasing the sentence, the proceedings will he stayed, an attorney will be appointed, and the matter will be rescheduled for hearing at a later date.

Mr. Wilson informed the Division that he has a petition for post conviction relief pending. Mr. Wilson was given the opportunity to proceed with the hearing at this time or if he wishes to wait until the post conviction has been completed, then he can move to dismiss the petition with permission to refile for sentence review after the post conviction relief matter is completed.

Mr. Wilson requested and was granted permission to dismiss his application for sentence review at this time and will he allowed to refile for sentence review after the post conviction relief matter has been completed.

The matter is hereby dismissed.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. DANIEL DISMAS HAND, Defendant.
    NO. ADC-88-30
    DECISION
   On July 20, 1988, the Defendant was sentenced to Count I, twenty (20) years for Burglary; Count II, ten (10) years for Theft; Count III, ten (10) years for Criminal Mischief; Count IV, six (6) months in the County Jail for Resisting Arrest; Count V, six (6) months in the County Jail for Possession of Burglary Tools; all sentences shall be served consecutively for a total of 41 years with 21 years suspended, plus conditions; credit for time served; $20 surcharge on each felony and $10 surcharge on each misdemeanor.

On July 23,1992, 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 to reduce the sentence or affirm it. However, if they felt an increase was a possibility, the board would continue the hearing and appoint counsel to represent the defendant. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 23rd day of July, 1992.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentences for Counts I, II, III, IV, and V shall be served concurrent with each other. In essence Mr. Hand will receive a 20 year sentence in the Montana State Penitentiary on Count I with all other sentence to run concurrently. He shall be designated a nondangerous offender for purposes of parole eligibility All other conditions remain in effect.

The reason for the decision is to bring the sentence imposed by Judge Loble into consistency with other jurisdictions. In particular, Count II, Theft, and Count III, Criminal Mischief, are included in the offense of Burglary. There shall be no suspension of time in this sentence.

Hon. Ed MlcLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Mr. Hand for his assistance to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. SEAN ANTHONY WENTZ, Defendant.
    NO. 1190-A
    DECISION
    DATED this 23rd day of July, 1992.
   On May 29,1987, the Defendant was sentenced to ten (10) years for Assault; twenty (20) years for Robbery; seventy five (75) years for Deliberate Homicide; and seventy five (75) years for Deliberate Homicide; plus an additional ten (10) year term for the use of a firearm in the commission of the crime Assault and Deliberate Homicide. All sentences are to run consecutively to each other; credit for time served from date of arrest; and defendant is prohibited from, in any way, profiting financially or economically, as the result of this crime. Dangerous offender designation.

On July 23,1992, 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 to increase the sentence, to leave it as it is, or reduce it. In the event that there is a possibility of increasing the sentence, the proceedings will be stayed, an attorney will be appointed, and the matter will be rescheduled for hearing at a later date.

It is the Division’s understanding that there is a petition for post conviction relief pending. Mr. Wentz was given the opportunity to proceed with the hearing at this time or if he wishes to wait until the post conviction has been completed, then he can move to dismiss the petition with permission to refile for sentence review after the post conviction relief matter is completed.

Mr. Wentz requested and was granted permission to dismiss his application for sentence review at this time and will be allowed to refile for sentence review after the post conviction relief matter has been completed.

The matter is hereby dismissed.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. SCOTT CLYDE MAGRUDER, Defendant.
    NO. DC-87-159
    DECISION
    DATED this 23rd day of July, 1992.
   On February 11, 1988, the Defendant was sentenced to Count I, ten (10) years for Felony Assault; Count II, forty (40) years for Mitigated Deliberate Homicide. Counts I and II shall be served concurrently to each other. The Defendant knowingly used a dangerous weapon and is sentenced to a term of ten (10) years. This sentence shall be served consecutively with the terms imposed for Count I and Count H. The additional ten (10) year sentence shall run concurrently on each Count, however. It was further ordered that the defendant is designated a Persistent Felony Offender, and the consecutive sentence imposed for use of a dangerous weapon is sufficient to also apply to the Persistent Felony Offender statute in Section 46-18-502, MCA. The Defendant is given credit for 252 days time served and is designated as a Dangerous Offender.

On July 23, 1992, the Defendant’s application for review of that sentence was considered 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 to increase the sentence, to leave it as it is, or reduce it. In the event that there is a possibility of increasing the sentence, the proceedings will be stayed, an attorney will be appointed, and the matter will be rescheduled for hearing at a later date.

The defendant explained to the Board that all his legal papers were confiscated after the riot, therefore he requested a continuance of 180 days. This request was denied.

The defendant then requested an extension of 90 days in which to reconstruct the materials which would enable him to argue his sentence before this Board.

The motion was granted, there will be a 90 day continuance for good cause shown, and the matter shall be rescheduled for an October, 1992 Sentence Review Hearing.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. ANTHONY SAMUEL VOGEL, Defendant.
    NO. CDC-88-174
    DECISION

      DATED this 23rd day of July, 1992.
   On November 4,1988, the Defendant was sentenced to Count I, one-hundred (100) years for Attempted Deliberate Homicide, plus ten (10) years for the use of a weapon, to be served consecutively; Count II, forty (40) years for Robbery, to be served consecutively to Count I. The defendant was designated as a Dangerous Offender and shall be given 88 days credit for time served.

On July 23,1992, 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 is here to consider the sentence which was imposed by Judge Joel Roth. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

Mr. Vogel informed the Division that he has a petition for post conviction relief pending. Mr. Vogel was given the opportunity to proceed with the hearing at this time or if he wishes to wait until the post conviction has been completed, then he can move to dismiss the petition with permission to refile for sentence review after the post conviction relief matter is completed.

Mr. Vogel requested that his application for sentence review be dismissed at this time and that he be allowed to refile for sentence review after the post conviction relief matter has been completed. The motion was granted, and

The matter is hereby dismissed.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. ROGER LUKE BELL, Defendant.
    NO. Dc-84-173
    DECISION
   On May 24,1985, the Defendant was sentenced to Count I, one hundred (100) years for Deliberate Homicide, plus ten (10) years for the use of a weapon to be served consecutively; Count II, one hundred (100) years for Deliberate Homicide, plus ten (10) years for the use of a weapon to be served consecutively; Counts I and II shall be served consecutive to each other. Dangerous Designation.

On July 23,1992, 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 is here to consider the sentence which was imposed by Judge Holmstrom. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 23rd day of July, 1992.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed. The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Roger Bell for his assistance to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ALTON EUGENE WALKER, Defendant.
    NO. DC-88-223
    DECISION
    DATED this 23rd day of July, 1992.
   On July 13, 1989, the Defendant was sentenced to Count I, ten (10) years for Assault; Count II, twenty (20) years for Aggravated Assault; said sentences are to run consecutively with 137 days credit for time served. The defendant shall pay to the Clerk the sum of $20 for this conviction

On July 23,1992, the Defendant’s application for review ofthat 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 is here to consider the sentence which was imposed by Judge Diane Barz. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

Mr. Walker informed the Division that he has a petition for post conviction relief pending. Mr. Walker was given the opportunity to proceed with the hearing at this time or if he wishes to wait until the post conviction has been completed, then he can move to dismiss the petition with permission to refile for sentence review after the post conviction relief matter is completed.

Mr. Walker requested that his application for sentence review be dismissed at this time and that he be allowed to refile for sentence review after the post conviction relief matter has been completed. The motion was granted and,

The matter is hereby dismissed.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. ANNE BONNIE ROSS, Defendant.
    NO. 9941
    DECISION
    DATED this 24th day of July, 1992.
   On November 26, 1948, the Defendant was sentenced to six (6) counts of Forgery. The defendant received twenty (20) years on each count. Counts II through VI shall run concurrent with each other but consecutive to Count I and are suspended with conditions. Credit is given for 52 days time served. Restitution of $11,106.06 is to be paid by the defendant.

On July 24,1992, 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 Roberta Hoe, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. 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 affirmed. The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.

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


text:
    STATE OF MONTANA, Plaintiff, vs. LESTER MELVIN CANNON, Defendant.
    NO. Dc-90-125
    DECISION
   On October 9,1990, the Defendant was sentenced to Count I, twenty (20) years for Sexual Intercourse without Consent; Count II, twenty (20) years for Sexual Intercourse without Consent; said sentences shall be served concurrently; 214 days credit for time served. The defendant shall not be eligible for parole until he has completed the sexual offender treatment program at Montana State Prison; plus $20 surcharge.

On July 24,1992, 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 Roberta Hoe, Legal Intern from the Montana Defender Project. The state was not represented.

DATED this 24th day of July, 1992.

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 if such is possible. 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 affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.

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


author: JUSTICE WEBER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. WILLIAM GERALD LEISTIKO, Defendant and Appellant.
    No. 92-088.
    Submitted on Briefs October 14, 1992.
    Decided December 17, 1992.
    49 St.Rep. 1104.
    256 Mont. 32.
    844 P.2d 97.

      For Appellant: Gary G. Doran, Moore & Doran, Kalispell.
    For Respondent: Miare Racicot, Attorney General; Carol Schmidt, Assistant Attorney General; Thomas Esch, Flathead County Attorney, Kalispell.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant William Gerald Leistiko appeals the Order of Revocation issued by the District Court of the Eleventh Judicial District, Flathead County. The Order of Revocation continued Leistiko’s suspended sentence and required him to pay an additional $10,000 in restitution to the victim. We set aside the portion of the order requiring $10,000 additional restitution.

The sole issue for our review is whether the District Court could order the defendant to pay $10,000 additional restitution after Leistiko violated the terms and conditions of his suspended sentence.

William Gerald Leistiko (Leistiko) attended a New Year’s Eve party on December 31, 1984, with his girlfriend. The couple argued throughout the evening and Leistiko subsequently left the party and returned with a 9 mm. automatic pistol, which was ultimately wrested from him by others at the party. He returned the morning of January 1, 1985, with a .22 semi-automatic pistol, and shot his girlfriend in the back as she attempted to phone law enforcement officers. The victim sustained injuries which caused permanent paralysis from the waist down. Leistiko was charged with aggravated assault and attempted deliberate homicide.

The parties and the victim signed a pretrial agreement on July 16, 1985, wherein Leistiko agreed to plead guilty to the charge of aggravated assault in exchange for the State’s dropping the attempted deliberate homicide charge. On September 5,1985, the District Court sentenced Leistiko to a twelve-year prison term with nine years suspended and a consecutive five-year term for the use of a weapon. The court also imposed a $20,000 “fine” as financial restitution to the victim, with monthly payments commencing one month after his release from Montana State Prison.

While in prison, Leistiko paid $60 per month restitution from money he earned there, although this was not required by his sentence. After his parole on September 22, 1986, following thirteen months incarceration, he made monthly payments of $250 as required by his sentence. He later returned to his former employment and began making payments of $400 per month. At the time of the final revocation hearing, he had paid $12,400 of the $20,000 fine.

On September 9, 1989, a random urinalysis tested positive for cocaine. Leistiko was given another chance on parole and entered Rocky Mountain Treatment Center in Great Falls on October 3,1989. He completed chemical dependency treatment there and discharged his aftercare requirements on January 12, 1990. On February 8, 1990, another urinalysis tested positive for cocaine. The Board of Pardons then revoked Leistiko’s parole and again incarcerated him in the Montana State Prison.

On May 12, 1990, the State filed a petition to revoke Leistiko’s suspended sentence. On May 23, 1990, the District Court conducted a hearing on the petition and found Leistiko in violation of terms of his suspended sentence, but reserved judgment with regard to that revocation until Leistiko completed an intensive addiction treatment program in prison. On December 6,1990, the Court allowed Leistiko to continue this treatment at the Providence Center in Great Falls so that he could avail himself of the Great Falls Pre-release Center’s programs. On August 11, 1991, Leistiko was discharged from the Great Falls Pre-release Center.

On October 11,1991, Leistiko filed a motion to reduce his monthly payments to $100 per month based on his financial situation. At the final revocation hearing, the District Court heard testimony from both the defendant and the victim as well as the recommendation from the prosecutor that justice would not be served by sending Leistiko back to prison. In an order dated December 10, 1990, the District Court continued the suspended sentence, allowed reduced payments of $100 for three months and increased the restitution by $10,000.

I

Did the District Court err when it ordered the defendant to pay an additional $10,000 to his victim after he violated the terms and conditions of his suspended sentence while on parole?

Leistiko contends that the District Court had no authority to increase the original sentence by an additional $10,000 in restitution. He relies on the version of Section 46-18-203, MCA, which was in effect at the time of the crime and at the time of initial sentencing. Section 46-18-203, MCA (1983), then provided:

Revocation of suspended or deferred sentence. (1) Ajudge ... who has suspended the execution of a sentence ... of imprisonment under 46-18-201 or his successor is authorized in his discretion to revoke the suspension or impose sentence and order the person committed....

However, the District Court relied on the 1991 revision of Section 46-18-203, MCA, in its sentencing order. It provides in pertinent part:

Revocation of suspended or deferred sentence. (1) Upon the filing of a petition for revocation, accompanied by an affidavit showing probable cause that the defendant has violated any condition of a sentence ... the court may issue an order for a hearing on revocation....
(7) If the court finds that the defendant has violated the terms and conditions of the suspended or deferred sentence, the court may:
(a) continue the suspended or deferred sentence without a change in conditions;
(b) continue the suspended sentence with modified or additional terms and conditions',
(c) revoke the suspension of sentence and require the defendant to serve either the sentence imposed or any lesser sentence . . .

Section 46-18-203, MCA (1991), (emphasis supplied).

Leistiko contends that he is entitled to the benefits of the former statute. Under the statute in effect when he committed the crime on January 1, 1985, the District Court could either continue the suspended sentence under the original terms, or revoke the suspended sentence and order a defendant to serve the remainder of his prison term. The 1991 revision of Section 46-18-203, MCA, grants authority to the district courts to add terms and conditions which are not part of the original sentence.

That legislative grant of authority, however, cannot violate the constitutional rights of a defendant over whom the District Court has jurisdiction. Article I, Section 10 of the United States Constitution prevents state legislatures from enacting ex post facto legislation. Similarly, Article II, Section 31 of the Montana Constitution prohibits the same. One of the United States Supreme Court’s earliest opinions provides a definition of ex post facto laws and a rationale for the constitutional prohibition. See Calder v. Bull (1798), 3 Dall. 386, 3 U.S. 269, 1 L.Ed. 648. Justice Chase’s opinion in Colder became well accepted as to those legislative acts which were prohibited by the ex post facto clause in Art. I, Section 10 of the United States Constitution. This interpretation of the clause was subsequently summarized as follows:

It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

Beazell v. Ohio (1925), 269 U.S. 167, 169-70, 46 S.Ct. 68, 68, 70 L.Ed. 216, (emphasis supplied).

The Framers had a dual purpose in banning ex post facto legislation: (1) to give fair warning to individuals of what conduct is punishable, and (2) to restrain federal and state governments from enacting arbitrary and potentially vindictive legislation. Colder, 3 Dali, at 387-90. An increase in the severity of a criminal punishment compared with that authorized at the time the act was committed is a criminal conduct measure coming within the ban on ex post facto laws. Weaver v. Graham (1981), 450 U.S. 24, 28, 101 S.Ct. 960, 964, 67 L.Ed.2d, 17, 22. Critical to relief under the ex post facto clause is the lack of fair notice and governmental restraint when a legislature increases punishment beyond what was prescribed when the crime was committed. Weaver, 450 U.S. at 30, 101 S.Ct. at 965.

We use a two-part test to determine whether a statute violates the ban on ex post facto laws: (1) the law must be retrospective, and (2) it must disadvantage the offender affected by it. Miller v. Florida (1987), 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351, 360-61. Alawis retrospective if it changes the legal consequences of actions committed before its effective date. Miller, 482 U.S. at 430, 107 S.Ct. at 2451. At the time Leistiko shot his girlfriend, Section 46-18-203, MCA, did not authorize the District Court to modify or add terms and conditions in a revocation proceeding. Clearly, the revised statute changes the legal consequences of Leistiko’s crime by allowing the District Court to change the sentence.

To meet the second prong of the test, the United States Supreme Court has said, “It is axiomatic that for a law to be ex post facto it must be more onerous than the prior law.” Dobbert v. Florida (1977), 432 U.S. 282, 294, 97 S.Ct. 2290, 2299, 53 L.Ed.2d 344, 357. The District Court’s application of the new law here added $10,000 in restitution to be paid before the end of the suspended sentence. This puts a substantial additional burden upon Leistiko, both financially and in terms of violations which can subject him to additional incarceration. We conclude that the additional restitution ordered in this case constitutes an unconstitutional increase in punishment which Leistiko could not have foreseen at the time he committed the crime or when he entered into the plea agreement with the prosecutor before sentencing. We conclude that the District Court could not increase Leistiko’s sentence by ordering $10,000 additional restitution.

We hold that under Article I, Section 10 of the United States Constitution and Article II, Section 31 of the Montana Constitution, the District Court could not order the defendant to pay his victim $10,000 additional restitution after the defendant violated the terms and conditions of his suspended sentence while on parole.

Vacated in part.

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


text:
    STATE OF MONTANA, Plaintiff, vs. FLOYD LENARD SPURLOCK, Defendant.
    NO. Dc-86-1
    DECISION
    DATED this 24th day of July, 1992.
   On July 7,1986, the Defendant was sentenced to sixty-five (65) years for Deliberate Homicide, plus five (5) years for the use of a weapon; said sentences are to be served consecutively. The defendant shall be given credit for 53 days time served.

On July 24,1992, 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 Ann German, Attorney at Law from Libby, Montana. 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 if such is possible. 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 affirmed. The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

The Sentence Review Board finds that although there were a lot of mitigating circumstances, this is a matter for the parole board.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes thank Ann German, Attorney at Law from Libby for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT GEARY DIXON, Defendant.
    NO. DC-87-50
    DECISION
    DATED this 24th day of July, 1992.
   On June 13, 1988, the Defendant was sentenced to twenty (20) years with five (5) years suspended for Sexual Abuse of Children, plus conditions. The defendant received 185 days credit for time served.

On July 24, 1992, 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 Patrick Flaherty, Attorney at Law from Great Falls, Montana. 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 if such is possible. 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 affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Patrick Flaherty, Attorney at Law from Great Falls for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. MICHAEL “BUBBA” BROWN, Defendant.
    NO. DC-92-019B
    DECISION
   On May 1, 1992, the Defendant was sentenced to twelve (12) years for Burglary with credit for 15 days time served. The defendant was fined $1000 together with a surcharge of $100 and is ordered to pay restitution in the amount of $693.24.

On July 24, 1992, the Defendant’s application for review of that sentence was heard hy the Sentence Review Division of the Montana Supreme Court.

DATED this 24th day of July, 1992.

The Defendant was present and was represented by Gary Doran, Attorney at Law from Kalispell, Montana. 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 if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he -understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to twelve (12) years with seven (7) years suspended.

It is recommended that he be placed at the Swan River Youth Camp for the period of his incarceration. During the suspended portion of his sentence, the defendant shall be placed under the jurisdiction of the Department of Corrections and that he be subject to any and all rules and regulations that the Adult Probation and Parole may enforce.

It is further ordered, that he obtain counseling as directed by his probation officer; that he submit his person to breath or urinalyses as may he required by his counselor or probation officer; that he attend weekly alcoholics anonymous meetings; that his probation officer has the right to limit the defendants right to the association with any individuals; during the period of his probation, the defendant shall maintain full-time employment; and he shall obtain his GED within one (1) year of being released from Swan River Youth Forest Camp.

The reasons for the decision are the Sentence Review Board took into account the defendant’s age; this is the defendant’s first felony conviction as an adult; and the conviction is one of a property crime.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Gary Doran, Attorney at Law from Kalispell, for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. RICHARD M. SMITH, Defendant.
    NO. ADC-89-110
    DECISION
    DATED this 20th day of August, 1992.
   On November 15,1989, the Defendant was sentenced to Counts I and V, fifteen (15) years on each count with ten (10) years suspended for Sexual Assault; Counts II and III, twenty (20) years on each count for Sexual Intercourse Without Consent; said sentences are to run consecutive; defendant must complete the sex offender program at MSP; the defendant must have no contact with the victims or their families and no contact with the staff of the Montana School for the Deaf and Blind; the defendant is designated as a Dangerous Offender.

On August 20, 1992, 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 McAlear, Attorney at Law from Bozeman, Montana. Mr. Steve Cameron, Legal Intern from the Cascade County Attorney’s Office represented the state.

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 if such is possible. 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 imposed by Judge McEittrick shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Ed McLean, Chairman, Hon. Robert M. Boyd, Acting Member, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Steve Cameron, Legal Intern from Cascade County for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. THEODORE W. ROBERTS, Defendant.
    NO. ADC-89-090
    DECISION

      DATED this 20th day of August, 1992.
   On October 20,1989, the Defendant was sentenced to fifteen (15) years with five (5) years suspended plus conditions; $60 restitution; $1,000 fine, $20 surcharge to be paid during the suspended portion of said sentence for the Criminal Sale of Dangerous Drugs

On August 20, 1992, 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 represented himself.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge McKittrick. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he did not wish to proceed and wanted to dismiss his petition for sentence review.

The petition was dismissed without prejudice at this time. Upon showing of good cause, the petitioner can reapply for Sentence Review at a later date.

Hon. Ed McLean, Chairman, Hon. Robert J. Boyd, Acting Member and Hon. G. Todd Baugh, Judges.


text:
    STATE OF MONTANA, Plaintiff, vs. TIMOTHY WAYNE BALLENGER, Defendant.
    NO. 6969
    DECISION
   On March 17, 1986, the Defendant was sentenced to one hundred (100) years for Deliberate Homicide; $11,854. 80 in prosecution costs; $5,017. 25 for cost of calling jury; $10,937. 43 for court appointed attorney; $20 surcharge; one year and 16 days credit for time served; Dangerous Offender Designation.

On August 20,1992, 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 represented himself. The state was represented by Karen Townsend, Deputy County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Henson. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. 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 imposed by Judge Henson shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

DATED this 20th day of August, 1992.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert J. Boyd, Acting Member and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank Mr. Ballenger for appearing pro se and also wishes to thank Ms. Tbwnsend for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. DOUGLAS D. TURNER, Defendant.
    NO. Dc-87-48
    DECISION
    DATED this 20th day of August, 1992.
   On May 9,1988, the Defendant was sentenced to Count I, one hundred (100) years for Deliberate Homicide plus an additional five (5) years for the use of a weapon; Count II, one hundred (100) years for Deliberate Homicide plus an additional five (5) years for the use of a weapon; Count III, one hundred (100) years for Deliberate Homicide plus an additional five (5) years for the use of a weapon; Count IV, ten (10) years for Felony Assault plus an additional five (5) years for the use of a weapon; Count V, ten (10) years for Felony Assault plus five (5) years for the use of a weapon; Count VI, forty (40) years for Aggravated Burglary plus and additional five (5) years for the use of a weapon; all the above sentences shall be served consecutively; the defendant is ineligible for parole and participation in any supervised release program while serving the above terms.

On August 20,1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by David Ness, Attorney at Law from Helena. 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 if such is possible. 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 imposed by Judge Dale Cox shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas M. McKittrick, Acting Chairman, Hon. Robert J. Boyd, Acting Member and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes to thank David Ness, Attorney from Helena for his assistance to the defendant and to this Court.