text:
    STATE OF MONTANA, Plaintiff, vs. CHRIS EDWARD GRANT, Defendant.
    NO. 91-CR-2
    DATED this 12th day of March, 1993.
    DECISION
   On March 7, 1991, the Defendant was sentenced to ten (10) years on each of three (3) counts of Burglary. All three (3) sentences are to be served concurrently and credit is given for 66 days time served.

On March 12, 1993, 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 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. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. James Purcell, Judges

The Sentence Review Board wishes to thank Chris Grant for his assistance to the Court.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. TIMOTHY E. "Catfish" WILSON, Defendant.
    NO. DC-86-43a
    AMENDED DECISION
   On June 11, 1986 the Defendant was sentenced to Count I, Mitigated Deliberate Homicide, forty (40) years plus an additional ten (10) years to be served consecutively for the use of a dangerous weapon; Count II, Mitigated Deliberate Homicide, forty (40) years plus an additional ten (10) years to be served consecutively for the use of a dangerous weapon; Count I and Count II shall be served consecutively for a total of one hundred (100) years. The Defendant is designated as a dangerous offender. The Defendant shall be ineligible for parole and participation in the supervised release program while serving his term for a period of thirty (30) years thereof. The Defendant is given credit for time spent in presentence incarceration while awaiting the disposition of this matter.

On April 3,1987, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 12th day of March, 1993.

The Defendant was present and was represented by Mark Nord, 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 impossible. 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 was the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The Decision was reached on April 3, 1987, however, there was a typographical error indicating that Counts I and II were to run concurrently instead of consecutively. The reason for the amended decision is only for the purpose of correcting the typographical error and to clarify the intent of the Sentence Review Division.

THEREFORE, IT IS HEREBY ORDERED that the Defendant, Timothy E. "Catfish" Wilson, shall be sentenced to, Count I, Mitigated Deliberate Homicide, forty (40) years plus an additional ten (10) years to be served consecutively for the use of a dangerous weapon; Count II, Mitigated Deliberate Homicide, forty (40) years plus an additional ten (10) years to be served consecutively for the use of a dangerous weapon; Count I and Count II shall be served consecutively for a total of one hundred (100) years. The Defendant is designated as a dangerous offender. The Defendant shall be ineligible for parole and participation in the supervised release program while serving his term for a period of thirty (30) years thereof. The Defendant is given credit for time spent in presentence incarceration while awaiting the disposition of this matter. This sentence was effective April 3,1987.

Hon. Thomas McKittrick, Chairman, Hon. James Purcell, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. DAVID RAY HILL, Defendant.
    NO. ADC-90-095
    DATED this 6th day of May, 1993.
    DECISION
   On January 4, 1993 the Defendant’s suspended sentence for Escape was revoked and the Defendant was sentenced to five (5) years at the Montana State Penitentiary; plus he was designated a dangerous offender and is not to be released from prison until he has successfully completed an alcohol treatment program; plus he shall receive 97 days credit for time served.

On May 6,1993, 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 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 did not wish to proceed at this time.

IT IS HEREBY ORDERED that this matter will be dismissed with prejudice and the petitioner will have the right to refile for Sentence Review and provide reasons for doing so.

Hon. Robert Boyd, Acting Chairman, Hon. John Warner, and Hon. G. Todd Baugh, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. DAVID AZURE, Defendant.
    NO. BDC-91-111a
    DECISION
   On May 20,1992, the Defendant was sentenced to forty (40) years with twenty (20) years suspended plus conditions as listed in the May 20, 1992 Judgment. The Defendant shall be designated as a dangerous offender for purposes of parole eligibility.

On May 6,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 6th day of May, 1993.

The Defendant was present and was represented by Margaret R. Gallagher, 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 remain the same as originally imposed.

The reason for the decision is the Sentence Review Board finds that the reasons for the dangerous designation have been adequately articulated in the Judgment of Conviction; and the presumption of correctness as to the sentence applies.

Hon. Robert Boyd, Acting Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

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


text:
    STATE OF MONTANA, Plaintiff, vs. SHAWN LEE O’BRIEN, Defendant.
    NO. CDC-92-099
    DATED this 6th day of May, 1993.
    DECISION
   On September 25,1992, the Defendant was sentenced to ten (10) years for Negligent Homicide; Dangerous Designation Status; plus credit for 46 days time served.

On May 6,1993, 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 Dan O’Brien, 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 imposed 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 McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Dan O’Brien, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES WILLIAM POOLE, Defendant.
    NO. 5830
    DATED this 6th day of May, 1993.
    DECISION
   On October 7, 1992 the Defendant’s sentences were revoked and he shall was sentenced to a term often (10) years each on Count II, Kidnapping; on Count IV, Sexual Intercourse Without Consent; and on Count V, Sexual Intercourse Without Consent. Said sentences shall be served consecutively with each other and consecutively to the sentence imposed in Flathead County Cause No. DC-92-037B; plus other conditions as stated in the October 7, 1992 Judgment. For purposes of parole eligibility the Defendant is designated a dangerous offender.

On May 6,1993, 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 Dan O’Brien, 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. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Dan O’Brien, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES WILLIAM POOLE, Defendant.
    NO. DC-92-037B
    DECISION
   On September 22,1992, the Defendant was sentenced to forty (40) years for Sexual Intercourse without Consent. The Defendant is a dangerous offender for the purposes of parole eligibility. The sentence shall run consecutively to any sentence which the Defendant may serve as a result of his 1981 conviction in Missoula County for Burglary/Kidnapping and two counts of Sexual Intercourse without Consent; plus conditions as listed in the September 22,1992 Judgment by Judge Keedy.

DATED this 6th day of May, 1993.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd. Baugh, and Hon. John Warner, Judges

On May 6,1993, 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 Dan O’Brien, 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.

The Sentence Review Board wishes to thank Dan O’Brien, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. HAROLD EDWIN GLEED, Defendant.
    NO. Dc-92-16
    DECISION
   On February 26,1993, the Defendant was sentenced to Count I, ten (10) years for Kidnapping; Count II, twenty (20) years for Burglary; Count III, twenty-five (25) years for Mitigated Deliberate Homicide. The sentences imposed shall run concurrent to each other but consecutive to the sentence for which the defendant is presently incarcerated.

On May 6,1993, 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 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.

DATED this 6th day of May, 1993.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Mr. Gleed for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. MONTE GALUSIA BENNETT, Defendant.
    NO. DC-91-164
    DATED this 6th day of May, 1993.
    DECISION
   On June 22,1992, the Defendant was sentenced to fifteen (15) years for Incest with ten (10) years suspended upon the conditions listed in the June 22, 1992 Judgment. Credit will be given for 3 days time served.

On May 6,1993, 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 Patricia Day-Moore, 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, the sentence be amended to fifteen (15) years straight time. The Defendant shall not be eligible for parole until he successfully completes the sex offender treatment program at the Montana State Prison. Credit shall be given for three (3) days time served.

The reason for the amendment is to insure that the Defendant would successfully complete the sex offender treatment program while in the Montana State Prison. It is a specific concern of this Board that the Defendant not be released into society until he has successfully completed the sex offender program.

Hon. Thomas McKittrick, Chairman, and Hon. John Warner, Judge

DISSENT. THE HONORABLE G. TODD BAUGH DISSENTS. He agrees with the fifteen (15) year sentence and the fact that the Defendant needs the sex offender program, however, Judge Baugh would make the treatment program available as part of the Defendant’s parole plan if he was -unable to get it done while incarcerated at the Montana State Prison prior to his parole.

The Sentence Review Board wishes to thank Patricia Day-Moore, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. LEO P. DORAN, Defendant.
    NO. 93-18
    DATED this 6th day of May, 1993.
    DECISION
   On February 16,1993, the Defendant was sentenced to ten (10) years with five (5) years suspended with the conditions listed in the February 16, 1993 Judgment by Judge Langton. The Defendant shall not be considered for parole until he has entered and completed both the anger management and chemical dependency treatment programs at Montana State Prison.

On May 6,1993, 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 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 ten (10) years with five (5) years suspended with the conditions listed in the February 16,1993 Judgment by Judge Langton to remain the same as imposed. However, the Sentence Review Board makes the following amendments: (1) removes the Dangerous Designation; (2) change the condition of parole so that the Defendant can enroll and successfully complete the anger management program and the chemical dependency program. The Defendant may obtain the chemical dependency program outside of the prison if he is unable to complete it when released on parole; and (3) the Sentence Review Board cautions against sentencing terms without a presentence investigation report.

The reason for the decision is to make the sentence imposed more in line with other sentences of a similar nature. The main goal of the Sentence Review Board is to provide equitable sentences among inmates for the crimes they commit.

It has been brought to the attention of the Sentence Review Board that the chemical dependency programs are full at the prison and very difficult for inmates to get into. The Board finds that the Defendant may complete that program on the outside of prison so he can take advantage of the much needed program in a more timely maimer.

Rehabilitation is another goal of the Sentence Review Board and the Board hopes that the amended sentence will help this Petitioner to obtain that goal.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Mr. Doran for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES C. BORDEN, Defendant.
    NO. 9622
    DATED this 6th day of May, 1993.
    DECISION
   On June 15,1992, the Defendant’s suspended sentence on Count I was revoked and the Defendant was sentenced to ten (10) years for Theft. Defendant’s prior sentences on Count II and Count III, both Theft charges, were continued with all of the terms and conditions listed in the June 15,1992 Judgment. Credit was given for 29 days time served. It was further ordered that restitution in this matter is received by the Clerk of Court, the Clerk may pro rate partial payments to the victims. The restitution shall be disbursed as set out in the Judgment done in open Court on the 17th day of June, 1991.

On May 6,1993, 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 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. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Mr. Borden for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. DAVID EDWARD CUNNINGHAM, Defendant.
    NO. CR-92-32
    DECISION
   On October 7, 1992, the Defendant was revoked and was sentenced to twenty (20) years on each of two counts for Sexual Assault; and twenty-five (25) years for Sexual Intercourse Without Consent; all sentences to run concurrently; the Defendant shall be considered a dangerous offender and not be considered for parole until he has successfully completed the Sexual Offender Treatment Program at which time he may be given a non-dangerous offender status. Credit for 51 days time served.

On May 6,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 6th day of May, 1993.

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 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 did not wish to proceed because his attorney was not present.

IT IS HEREBY ORDERED that the application for review of sentence shall be dismissed with prejudice with leave to refile at a later time.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. EUGENE ROSS BISHOP, Defendant.
    NO. 10086
    DATED this 6th day of May, 1993.
    DECISION
   On August 19, 1992, the Defendant was sentenced to twenty (20) years for Sexual Intercourse Without Consent. It is the recommendation of the Court that prior to being eligible for parole that the Defendant shall complete the sexual offender evaluation and participate in the sexual offender treatment program at the Montana State Prison. Five (5) years of the Defendant’s sentence is suspended upon the terms and conditions listed in the August 19,1992 Judgment. The Defendant shall be designated a dangerous offender for the purposes of parole eligibility. The Defendant shall be given credit for 173 days time served.

On May 6,1993, 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 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 did not wish to proceed because his attorney was not present.

IT IS HEREBY ORDERED that the application for review of sentence shall be dismissed with prejudice with leave to refile at a later time.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. HOWARD WILLIE HINER, Defendant.
    NO. 9389
    DATED this 6th day of May, 1993.
    DECISION
   On December 9,1992, the Defendant’s prior suspended sentences were revoked and the Defendant was sentenced to a term often (10) years on Count I, Assault; ten (10) years on Count II, Assault; and ten (10) years on Count V, Bail Jumping. Count I and II shall run concurrent with each other and Count V shall run consecutive to Count I and II. The Defendant is given 117 days credit for time served.

On May 6,1993, 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 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. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Mr. Hiner for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. RICHARD BLYTHE, Defendant.
    NO. DC-92-028
    DECISION
   On October 5,1992, the Defendant’s five (5) year sentence for Domestic Abuse and Resisting Arrest was revoked and the Defendant was ordered to serve the remainder of the sentence in the Montana State Penitentiary. The Defendant is allowed credit for the time from June 29,1992 to September 28,1992. It was a condition that if Defendant is paroled, he not be paroled to Hill County.

On May 6,1993, 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 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.

DATED this 6th day of May, 1993.

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

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 McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. Robert Boyd, Judges

The Sentence Review Board wishes to thank Mr. Blythe for representing himself in this matter.


text:
    STATE OF MONTANA Plaintiff, vs. MICHAEL JOHN MARSHALL, Defendant.
    NO. CDC-91-206
    DATED this 6th day of May, 1993.
    DECISION
   On June 17,1992, the Defendant was sentenced to forty (40) years for Aggravated Burglary with credit for 227 days time served; plus ten (10) years for Intimidation, to be served concurrently with the 40 year sentence. The Defendant shall be designated a dangerous offender and he shall be ineligible for parole for the first thirty (30) years of the above sentence.

On May 6,1993, 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 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 continue his hearing until all post-convictions pleadings are completed.

IT IS HEREBY ORDERED that the motion will be denied and this hearing will not be continued.

IT IS FURTHER ORDERED that the application for review of sentence shall be dismissed without prejudice with leave to refile at a later time.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. JASON ADRIAN BARKEE, Defendant.
    NO. DC-92-14
    DATED this 7th day of May, 1993.
    DECISION
   On September 9, 1992, the Defendant was sentenced to forty (40) years for Mitigated Deliberate Homicide with ten (10) years suspended. The Defendant shall receive credit for 182 days time served and shall be designated a dangerous offender. It is recommended that the Defendant not be considered eligible for parole until he has successfully completed the inpatient alcohol and drug treatment program at the Montana State Prison. It is further recommended that the Defendant shall not be considered eligible for parole until he has completed aggression management treatment at the Montana State Prison. The suspended portion of the sentence shall be upon the conditions listed in the September 9,1992 Judgment by Judge McNeil. The Defendant shall pay twenty dollars ($20.00) surcharge on this Count as required by law, which shall be paid to the Clerk of the District Court.

On May 7,1993, 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 Colleen Collier, 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.

Mr. Larry Nistler, Lake County Attorney wanted to attend the hearing but was not present at the time the hearing began and requested that he be allowed to present a letter to the Sentence Review Board at a later time. The motion was denied by the Court.

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. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

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


text:
    STATE OF MONTANA, Plaintiff, vs. GUY EVAN LEFTHAND, Defendant.
    NO. D89-89
    DECISION

      DATED this 7th day of May, 1993.
   On June 24, 1992, it was ordered that the deferred imposition of sentence entered on December 6, 1989 is revoked. IT WAS FURTHER ORDERED that the Defendant shall be punished by confinement in the Montana State Prison for a term of eight (8) years, with two (2) of those years suspended. The Defendant shall receive credit for time served in the amount of 68 days, with no credit for street time. The suspended portion of this sentence shall be upon the conditions listed in the June 24, 1992 Judgment. The Defendant shall not be considered eligible for parole until he successfully completes a chemical dependency program.

On May 7,1993, 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 Susan Aaberg-Firth, Legal Intern from the Montana Defender Project. 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 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 McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Susan Aaberg-Firth, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. JEFFREY T. ROTH, Defendant.
    NO. DC-92-098B
    DECISION
   On August 11,1992, the Defendant was sentenced to Count I, thirty (30) years, for Criminal Sale of Dangerous Drugs; Count II, fifteen (15) years for Criminal Possession of Dangerous Drugs With Intent to Sell; with eighteen (18) years to be suspended on Count and three (3) years to be suspended on Count II. Said time to be served concurrent to each other, and consecutive to the sentence for revocation handed down by Judge McNeil in Cause No. DC-99-102(B); plus conditions that the defendant shall follow for the suspended portion of his sentence as stated in the Judgment dated August 11, 1992. The Defendant shall be credited for 20 days time served.

On May 7,1993, 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 John Blavatsky, Legal Intern from the Montana Defender Project. The state was not represented.

DATED this 7th day of May, 1993.

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, Count I, fifteen (15) years, for Criminal Sale of Dangerous Drugs with five (5) years suspended; Count II, fifteen (15) years for Criminal Possession of Dangerous Drugs With Intent to Sell with five (5) years suspended; these two sentences are to be served concurrently with themselves, however, they will be served consecutive to any other sentence previously imposed. The conditions that the defendant shall follow for the suspended portion of his sentence as stated in the Judgment dated August 11,1992 by Judge Keedy shall be affirmed.

The reasons for the amended decision are;

(1) the amendment brings the sentence more in line with other sentences handed down across the state for similar crimes; and

(2) the amended sentence together with the fines imposed should adequately follow the intention of the State in this case.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank John Blavatsky, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. JUSTIN JAMES JENNINGS, Defendant.
    NO. DC-92-15
    DECISION
   On September 10,1992, the Defendant was sentenced to forty (40) years with fifteen (15) years suspended for Mitigated Deliberate Homicide. The Defendant shall receive credit for time served in the amount of 193 days. The Defendant shall be designated a dangerous offender for parole eligibility purposes. The Defendant shall not be considered eligible for parole until he has successfully completed the inpatient alcohol and drug treatment programs at the Montana State Prison. The Defendant shall not be considered eligible for parole until he has completed aggression management treatment at the Montana State Prison. The suspended portion of the sentence shall be upon the conditions listed in the September 10, 1992 Judgment signed by Judge McNeil. The Defendant shall pay TWENTY DOLLARS ($20.00) surcharge as required by law, which shall be paid to the Clerk of the District Court.

On May 7,1993, 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 Lake County Attorney Larry Nistler.

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.

DATED this 7th day of May, 1993.

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. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Mr. Jennings for representing himself in this matter. The Board would also like to thank County Attorney Larry Nistler for representing the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. WILLIAM PASCAL NELSON, Defendant.
    NO. DC-92-123A
    DATED this 7th day of May, 1993.
    DECISION
   On February 10, 1993, the Defendant was sentenced to twenty (20) years for Burglary; credit is given for 24 days time served.

On May 7,1993, 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 F. Bailey, Attorney at Law from Missoula, 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. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Michael Bailey, Attorney at Law from Missoula, Montana, his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ROY LEE SMITH, Defendant.
    NO. DC-92-105B and DC-91-208A
    DATED this 7th day of May, 1993.
    DECISION
   On October 13, 1992, the Defendant was sentenced in Cause No. DC-92-105B, twenty (20) years for Aggravated Burglary and is designated a dangerous offender for the purposes of parole eligibility; in Cause No. DC-92-208A, the deferred sentence previously imposed is hereby revoked, and the defendant was sentenced to ten (10) years for Theft. For purposes of this portion of the sentence, the defendant will be designated a non-dangerous offender; and this sentence shall run concurrent with the sentence imposed in Cause No. DC-92-105B. The defendant is granted credit for 106 days time served.

On May 7,1993, 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 Colleen A. Collier, 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 decision was difficult for the Sentence Review Board because of the disparity of the sentences between the Defendant and that of the co-defendant. However, the Board finds that Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court must be applied. The Honorable Ted Lympus thoroughly examined the records and had both individuals before him.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

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


text:
    STATE OF MONTANA, vs. MARK PUCKETT, Plaintiff, Defendant.
    NO. DC-92-132A
    DECISION
   On December 21, 1992, the Defendant was sentenced to fifteen (15) years for Burglary. The Defendant is to be given credit for 176 days time served. For purposes of parole eligibility, the Defendant is to be considered a dangerous offender.

DATED this 7th day of May, 1993.

On May 7,1993, 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 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 he 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 McKittrick, Chairman, Hon. G. Todcl Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Mr. Puckett for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. MARK THOMPSON HUNTER, Defendant.
    NO. DC-91-83
    DECISION
   On January 22, 1993, the Defendant’s sentence for Theft was revoked and he was sentenced to ten (10) years in the Montana State Prison. Credit for 119 days time served. The Court recommends that the Defendant complete an alcohol treatment program while at the Montana State prison, and that he not be considered for release to a pre-release center until the alcohol treatment program has been completed. Plus conditions as stated in the January 22,1993 Judgment of Judge Langton.

On May 6,1993, 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 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 four (4) years in the Montana State Prison with the condition that the Defendant not be eligible for parole until he successfully completes the alcohol treatment program he is currently in. All conditions listed in the January 22,1993 Judgment by Judge Langton still apply. The Defendant is given credit for 119 days time served.

The reasons for the decision are:

DATED this 6th day of May, 1993.

(1) to make the sentence more in line with other sentences of first time offenders; and

(2) to make sure the Defendant receives the necessary alcohol treatment.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Mr. Hunter for representing himself in this matter.


author: JUSTICE HUNT

text:
    MARK EISSINGER, Plaintiff and Appellant, v. MULLIN TRUCKING, INC., a corporation, and CLINT MULLIN, Defendants and Respondents.
    No. 93-251.
    Submitted on Briefs September 23, 1993.
    Decided December 22, 1993.
    50 St.Rep. 1695.
    263 Mont. 38.
    865 P.2d 300.

      For Plaintiff and Appellant: John J. Cavan, Cavan, Smith & Cavan, Billings.
    For Defendants and Respondents: Arnie A. Hove, Sidney.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Mark Eissinger appeals from a judgment of the Seventh Judicial District Court, Richland County, denying his request to rescind a sale and transfer of title to a Peterbilt truck and a refrigerated trailer to respondents Mullin Trucking, Inc., and Clint Mullin, based on his claim of constructive or actual fraud, and undue influence.

We affirm.

The issues are as follows:

1. Did the District Court err when it found that appellant failed to prove constructive fraud?

2. Did the District Court err when it found that appellant failed to prove actual fraud or undue influence?

3. Did the District Court err when it found that the consideration paid by respondent closely approximated the value of the truck and trailer at a distress sale?

Appellant grew up on his parents’ farm in Brockway, Montana, and graduated from high school in 1989. In August 1990, appellant completed truck driving school and purchased a 1989 Ford truck for approximately $75,000, without a down payment, after his father arranged and co-signed for the loan. Appellant’s father separately purchased a dry van truck trailer for $9,000 cash. From approximately October 1990 to March 1991, appellant leased the truck and trailer as owner/operator with a Billings truck company called Ligón.

In November 1990, appellant and his father paid off the truck using $40,000 from a trust fund established by the father, and with additional cash from the father. In January 1991, due to numerous truck repairs and downtime, appellant sold his 1989 Ford truck for cash and purchased a new 1991 Peterbilt truck for approximately $105,000, paying $36,000 in cash and financing the balance through Commercial Associates of Englewood, Colorado.

Appellant and Clint Mullin (respondent) met in mid-March 1991 at the Northwest Peterbilt dealership in Billings. There, appellant expressed his dissatisfaction in his employment with Ligón, and respondent offered to lease his truck. Later, appellant, his father, and respondent met to discuss the lease arrangement. At the meeting, respondent informed appellant that he would require a refrigerated trailer to handle the types of loads he would haul. In April 1991, appellant traded his dry van trailer for a refrigerated trailer (reefer trailer) and $4,500 cash. The parties verbally agreed that appellant would receive 90 percent of the freight bill for hauling the loads, and respondent would receive 10 percent because he provided the loads.

In May 1991, appellant, without the knowledge or assistance of his father, purchased a new Honda motorcycle for approximately $5,000, and in June he purchased a new pickup for $31,000. However, with $22,000 owing on the new pickup, in January 1992, appellant sold the pickup in exchange for approximately $17,000 and an older pickup.

Appellant hauled steadily in April and May 1991, but he was not paid until the end of June or early July 1991. Appellant chose not to haul loads during June. By mid-July, appellant was approximately three months in arrears in his truck payments.

On July 16, 1991, appellant transferred title of the truck and trailer to respondent Mullin Trucking, Inc., by signing a buy/sell agreement, two bills of sale, and title documents to both truck and trailer. Mullin Trucking, Inc., assumed the encumbrance on the truck totaling $56,443.92, which was consideration for the transfer. Prior to the transfer, respondent told appellant to inform his father of his financial difficulties, but appellant did not do so:

Appellant brought this action in the District Court, asking the court to rescind the July 16, 1991, sale and transfer of title to the truck and trailer to Mullin Trucking, Inc., alleging the transfer was induced by constructive or actual fraud, and undue influence. Appellant alleged that he relied on respondent in matters concerning the trucking business. Respondent gave specific financial advice to appellant based on his superior business experience, knowledge, and mature judgment. Appellant contends that respondent had influence over him and made promises to him in return for the truck transfer, without any intention of performance, and also created a false impression by words and conduct to respondent’s own advantage.

I.

Did the District Court err when it found that appellant failed to prove constructive fraud?

Appellant argues that his consent was not real or free because respondent’s conduct amounted to actual or constructive fraud and undue influence. Section 28-2-1711, MCA, allows a contracting party to rescind a contract if that party’s consent was acquired through fraud or undue influence.

Section 28-2-406, MCA, defines constructive fraud as:

(1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under him; or
(2) any such act or omission as the law especially declares to be fraudulent, without respect to actual fraud.

Appellant argues that the District Court erred when it considered whether a fiduciary relationship was present in the relationship between the parties. This Court has determined that a plaintiff need not prove a fiduciary relationship existed to establish constructive fraud. McJunkin v. Kaufman & Broad Home Systems (1987), 229 Mont. 432, 439-40, 748 P.2d 910, 914-15. This Court has explained the application of § 28-2-406, MCA, by stating:

By its terms, the statute does not require that the plaintiff demonstrate a fiduciary relationship. It merely requires the establishment of a duty. We have recognized that a sufficient duty can arise in a commercial transaction such as the one at hand. We find the defendants had a duty to refrain from intentionally or negligently creating a false impression by words or conduct. [Citations omitted].

McJunkin, 748 P.2d at 915.

In the present case, the District Court considered whether a fiduciary relationship was present, but also considered the factors required in the statute to prove constructive fraud and whether respondent had gained an advantage by misleading appellant to his prejudice.

Appellant argues that the District Court erred when it failed to adequately consider all the testimony and evidence before it. Appellant contends that respondent intentionally or negligently led appellant to believe respondent would retransfer title to the truck and trailer to him whenever he requested without any conditions attached. This Court will not overturn the district court’s findings of fact in a bench trial -unless they are clearly erroneous. In the Matter of the Mental Health of E.P. (1990), 241 Mont. 316, 787 P.2d 322; Rule 52(a), M.R.Civ.P. This Court will also give due regard to the opportunity of the district court to determine the credibility of the witnesses. In the Matter of the Mental Health of R.J.W. (1987), 226 Mont. 419, 736 P.2d 110. See Weber v. Rivera (1992), 255 Mont. 195, 841 P.2d 534.

In interpreting this rule, this Court has adopted a three-part test: First, the Court will review the record to see if the findings are supported by substantial evidence. Second, if the findings are supported by substantial evidence, we will determine if the trial court has misapprehended the effect of [the] evidence. Third, if substantial evidence exists and the effect of the evidence has not been misapprehended the Court may still find that “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” [Citation omitted].

Interstate Production Credit v. DeSaye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287.

In Weber, we held that the resolution of a rescission of contract depends upon a factual determination about the conversations between the parties. Weber, 841 P.2d at 536. In the present case, the District Court made factual determinations of the conversations between the parties, and respondent’s conduct prior to the truck and trailer transfer. The District Court determined the credibility of the witnesses and found no evidence to support a claim for constructive fraud. We hold that the court was not clearly erroneous.

II.

Did the District Court err when it found that appellant failed to prove actual fraud or undue influence?

Section 28-2-405, MCA, defines actual fraud as:

[A]ny of the following acts committed by a party to the contract or with his connivance with intent to deceive another party thereto or to induce him to enter into the contract:
(1) the suggestion as a fact of that which is not true by one who does not believe it to be true;
(2) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;
(3) the suppression of that which is true by one having knowledge or belief of the fact;
(4) a promise made without any intention of performing it; or
(5) any other act fitted to deceive.

Appellant contends that the District Court failed to consider testimony that respondent made promises to appellant in return for the truck and trailer transfer, without any intention of performing them. Again, the District Court made factual determinations of the testimony concerning respondent’s conduct and conversations prior to the truck and trailer transfer. The court found appellant failed to prove the necessary elements of actual fraud for several reasons. Appellant’s admission of having had full control of the truck and trailer and that he could have been on the road hauling loads whenever he chose, overshadowed his testimony that he was dependant upon respondent for loads to haul. Prior to respondent’s purchase, he told appellant to inform his father of the financial problems, but appellant failed to do so. Appellant’s assertion that respondent agreed to a retransfer of the truck and trailer at an undetermined future date, without a determined or discussed manner or amount of payment, without a determined or discussed rate of interest, and without being in writing, is implausible.

Next, the court considered whether respondent exercised undue influence over appellant.

Section 28-2-407, MCA, defines undue influence as:

(1) the use by one in whom a confidence is reposed by another or who holds a real or apparent authority over him of such confidence or authority for the purpose of obtaining an unfair advantage over him;
(2) taking an unfair advantage of another’s weakness of mind; or
(3) taking a grossly oppressive and unfair advantage of another’s necessities or distress.

Appellant contends the District Court failed to consider testimony that respondent was in a superior position as one experienced in business, and that appellant was immature and naive in these matters. The corut weighed the evidence whether respondent was in a position of authority or influence over appellant sufficient to take unfair advantage of him, and whether appellant had a weakness of mind. Appellant made several other arms-length transactions whereby he sold property for less than what was owed on it. Moreover, appellant admitted that when the transaction occurred he was old enough to handle his own affairs, was satisfied with the deal, and felt “in hindsight” he could have made a better deal. The court found the transfer between appellant and respondent was an arms-length transaction and that there was no actual fraud. We agree.

III.

Did the District Court err when it found that the consideration paid by respondent closely approximated the value of the truck and trailer at a distress sale?

Appellant contends the District Court failed to adequately consider evidence concerning the value of the truck and trailer to be nearer to $92,000, and the possibility that appellant’s father would have paid the balance owed if foreclosure was imminent- The court found that although the trailer and truck may have been worth substantially more than the consideration paid by respondent, the consideration very closely approximated the value of the truck and trailer at a distress sale. Respondent agreed to pay all payments and delinquencies in the amount of $56,443.92, and to hold appellant harmless for all future payments. Appellant’s transfer of the truck and trailer for less than fair market value was similar to, and consistent with, his prior financial transactions.

The District Court found for respondent and reasoned that it was not for the court to remake the contract between the parties simply because one may have received the better deal. We affirm the conclusion of the District Court.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON and WEBER concur.


text:
    STATE OF MONTANA, Plaintiff, vs. DOUGLAS JAMES HOWE, Defendant.
    NO. DC-92-96
    DATED this 6th day of May, 1993.
    DECISION
   On February 19, 1993, the Defendant was sentenced to ten (10) years with three (3) years suspended for Felony Assault; plus conditions as listed in the February 19, 1993 Judgment. The Defendant shall not be eligible for release until he has entered and completed both the anger management and chemical dependency treatment programs. The Defendant is designated a dangerous offender for purposes of parole.

On May 6,1993, 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 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. Thomas McKittrick, Chairman, Hon. G. Todd. Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Mr. Howe for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. DENNIS DUANE HANNI, Defendant.
    NO. DC-92-187A
    DATED this 7th day of May, 1993.
    DECISION
   On December 8, 1992, the Defendant was sentenced to forty (40) years for Sexual Intercourse Without Consent; that he be designated a dangerous offender; and prior to parole the defendant must complete the sexual offender treatment program at the Montana State Prison. The defendant must abide by the list of requirements stated in the December 8,1992 Judgment rendered by Judge Lympus.

On May 7,1993, the Defendant’s application for reivew 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 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 did not wish to proceed.

IT IS HEREBY ORDERED that the application for review of sentence shall be dismissed with prejudice with leave to refile at a later time.

Hon. Thomas McKittriek, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. BOYD DELBERT HADLEY, Defendant.
    NO. Dc-92-152B
    DECISION
   On October 30, 1992, the Defendant was sentenced to ten (10) years for Issuing a Bad Check with credit for 93 days time served.

On May 7,1993, 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 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.

DATED this 7th day of May, 1993.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Mr. Hadley for representing himself in this matter.


text:
    STATE OF MONTANA Plaintiff, vs. JOHN DEAN BLACKER, Defendant.
    NO. CDC-92-144
    DATED this 7th day of May, 1993.
    DECISION
   On December 23, 1992, the Defendant was sentenced to Count I, ten (10) years for Issuing a Bad Check (Common Scheme); Count II, six (6) months in the Lewis and Clark County Jail for Theft; to be served concurrently with the sentence imposed for Count I. The Defendant is designated a persistent felony offender and was sentenced to ten (10) years at the Montana State Prison; said sentence to be served consecutively to the sentence imposed in Counts I and II; credit is given for 83 days time served; plus all conditions listed in the December 23,1992 Judgment of Judge Honzel.

On May 7,1993, 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 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 is 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 McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Mr. Blacker for representing himself in this matter.


text:
    STATE OF MONTANA Plaintiff, vs. KENNETH FRANKLIN TISSUE, Defendant.
    NO. ADC-85-53
    DECISION

      DATED this 7th day of May, 1993.
   On December 23, 1992, the Defendant was sentenced to five (5) years for Sexual Intercourse Without Consent. The Defendant is granted no credit for street time and shall not be eligible for parole until he obtains and completes sex offender treatment.

On May 7,1993, 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 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, there is a split decision of the Sentence Review Division. The sentence shall be affirmed 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. Thomas McKittrick, Chairman, and Hon. John Warner, Judge

DISSENT: THE HONORABLE G. TODD BAUGH DISSENTS. He would have amended the sentence upward to include the stipulation that the Defendant would not be eligible for parole for the entire five (5) year term. Judge Baugh finds that the victim of this offense is at risk. If this sentence were imposed by the Sentence Review Division, the case would be referred to counsel pursuant to Rule 14 of the Rules of the Sentence Review Division.

The Sentence Review Board wishes to thank Mr. Tissue for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. DAVID BRYAN FINLEY, Defendant.
    NO. ADC-93-132
    DECISION
   On January 22, 1993, the Defendant was sentenced to Count I, fifteen (15) years for Attempted Sexual Intercourse Without Consent; Count II, fifteen (15) years with five (5) years suspended for Sexual Assault. The Court recommends the Defendant complete chemical dependency, anger management and sex offender treatment programs before becoming eligible for parole. The Defendant is designated a dangerous offender for parole purposes. The sentence shall run consecutively to each other and the conditions of parole are stated in the Judgment dated January 22,1993.

On May 7,1993, 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 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 did not wish to proceed.

DATED this 7th day of May, 1993.

IT IS HEREBY ORDERED that the application for review of sentence shall be dismissed with prejudice with leave to refile at a later time.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd. Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. DANIEL ROBERT KEARNEY, Defendant.
    NO. CR-87-78
    DATED this 6th day of May, 1993.
    DECISION
   On December 22,1992, the Defendant’s sentence was revoked and he was sentenced to five (5) years for Felony Assault. The Defendant is adjudged a dangerous offender for purposes of parole with credit for 74 days time served. Prior to being considered for release the Defendant must complete an alcohol treatment program and the Defendant will not be eligible for parole until successful completion of the treatment program has been achieved.

On May 6,1993, 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 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 is 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 McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Mr. Kearney for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT D. LYMAN, Defendant.
    NO. DC-92-111B
    DATED this 7th day of May, 1993.
    DECISION
   On January 13, 1993, the Defendant was sentenced to ninety (90) years for Aggravated Kidnapping with twenty (20) years suspended; subject to the conditions and requirements as stated in the January 13, 1993 Judgment by Judge Keedy. Dangerous designation was imposed and the Defendant is to be given credit for 233 days time served.

On May 7,1993, 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 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 did not wish to proceed.

IT IS HEREBY ORDERED that the application for review of sentence shall be dismissed with prejudice with leave to refile at a later time.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. ERNEST FREDERICK GATES, Defendant.
    NO. DC-92-154A
    DECISION
   On March 2, 1993, the Defendant was sentenced to Count I, forty (40) years for Robbery. The Court further ordered that said sentence be enhanced for the use of a dangerous weapon by an additional sentence of ten (10) years, which shall be served consecutively to the forty (40) year sentence. For Count II, Accountability to Burglary, the court imposed a sentence of twenty (20) years, which shall be served concurrently with the sentence imposed in Count I. Dangerous designation was imposed. The Defendant shall be ineligible for parole and/or participation in a supervised release program until he has served twenty-five (25) years of the sentence. The Defendant shall be given credit for 208 days served.

On May 7,1993, 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 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.

DATED this 7th day of May, 1993.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall he 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 McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Mr. Gates for representing himself in the matter.


text:
    STATE OF MONTANA, Plaintiff, vs. RONALD EARL STEVENS, Defendant.
    NO. DC-90-174A and DC-92-079A
    DATED this 7th day of May, 1993.
    DECISION
   On July 21, 1992, the Defendant’s sentence for Theft was revoked and he was sentenced in Cause No. DC-90-174A.03 to serve a full seven (7) years; in Cause No. DC-92-079A, the Defendant was sentenced to ten (10) years with five (5) suspended for Theft. Both sentences shall run consecutively to each other. The Defendant shall be given credit for 92 days time served. The five (5) years suspended shall be under the conditions stated in the July 21,1992 Judgment by Judge Keedy.

On May 7,1993, 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 Michelle Maltese, 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. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

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