text:
    STATE OF MONTANA, Plaintiff, vs. John L. Camp III, Defendant.
    NO. DC 96-53
    DECISION
   On July 23,1996, it was the sentence and judgment of this court as follows: 1. The court finds the defendant guilty under Count I of Driving Under the Influence of Alcohol, Fourth Offense, a Felony, in violation of Section 61-8-401, MCA and guilty under Count 2 of Driving While License Suspended or Revoked, a Misdemeanor, in violation of Section 61-5-212, MCA. 2. Under Count I for the offense of Driving Under the Influence of Alcohol, a Felony, the defendant is committed to the Department of Corrections for a period of ten (10) years. The Court makes no recommendation for placement. 3. Under Count 2 for the offense of Driving While License Suspended or Revoked, a Misdemeanor, the defendant shall serve a period of five days at the Gallatin County Detention Center, with credit for five days previously served. The defendant shall pay a fine in the amount of $200.00, an administrative fee in the amount of $ 15.00 and a court automation fee in the amount of $ 5.00. The fine and fees shall be paid by the defendant to the Clerk of the District Court, Eighteenth Judicial District, 615 S. 16th Avenue, Bozeman, Montana. The defendant shall make payments upon the total amount due upon his release from incarceration to either parole or pre-release. The sentences imposed under Count 1 and Count 2 shall be served concurrently. 4. The court’s reasons for this Sentence and Judgment are contained in a separate document filed in the court file.

DATED this 5th day of December, 1996.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Michelle Friend, legal intern of the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended as follows: The defendant is sentenced to ten (10) years to the Department of Corrections with five (5) years suspended. All conditions of the July 23, 1996 judgment shall remain the same as imposed.

The reason for the amendment are to bring this sentence into conformity with similar sentences in Montana for similar crimes.

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Michelle Friend, legal intern of the Montana Defender Project, for representing John L. Camp in this matter.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. Steven Jay Cothren, Defendant.
    NO. DC 89-076(B)
    DECISION
   On March 28, 1996, the defendant’s suspended sentence for the offense of Theft, a Felony, was revoked and he was ordered to serve five (5) years at the Montana State Prison. Should the defendant be granted parole, he must comply with the same conditions imposed by this Court’s Judgments of August 21,1989, and March 26,1990. The defendant is to be given credit for one hundred sixty (160) days served in the Flathead County Detention Center pending final disposition in this matter. Given his repeated failures to abide by the requirements of his probation, and his continuing victimization of the elderly, the defendant is not to be given credit for time otherwise served on probation.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

DATED this 5th day of December, 1996.

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

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

Chairman, Hon. Jeffrey Sherlock

Member, Hon. Wm. Neis Swandal

Alternate Member, Hon. Robert Boyd

The Sentence Review Board wishes to thank Steven Jay Cothren for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Steven Jay Cothren, Defendant.
    NO. DC 95-257
    DECISION
    DATED this 5th day of December, 1996.
   On April 18,1996, it was the judgment of the Court that the defendant be sentenced to a term of ten (10) years at the Montana State Prison. The defendant is hereby designated persistent felony offender and, as such, is sentenced to a term of five (5) years at the Montana State Prison. These terms are to be served consecutively for a total period of incarceration of fifteen (15) years. The sentence imposed in this matter is to be served consecutive to that imposed in Cause No. DC 89-076(B). Of this fifteen (15) years of incarceration, ten (10) years are suspended. Conditions of parole and probation are stated in the April 18,1996judgment. The defendant shall be given credit for time served from March 28,1996, to April 18,1996.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

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

Chairman, Hon. Jeffrey M. Sherlock

Member, Hon. Wm. Neis Swandal

Alternate Member, Hon. Robert Boyd

The Sentence Review Board wishes to thank Steven Jay Cothren for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Rusty L. Esterbrook, Defendant.
    NO. 11556
    DECISION
    DATED this 2nd day of December, 1996.
   On January 24, 1996, it was the judgment of the Court that Rusty Lyle Esterbrook be and is hereby sentenced to a term of twenty (20) years each on Count I and II in the Montana State Prison in Deer Lodge, Montana. The sentences shall run consecutively with each other. It is the recommendation of the Court that prior to becoming eligible for parole that the defendant shall successfully complete all of the sexual offender treatment programs available at the Montana State Prison. It is further ordered that the defendant shall register as a sexual offender, pursuant to Section 46-23-504 and 46-23-505, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for a period of ten (10) years following his release from custody. The defendant shall further notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if he should change his address during this ten (10) year period. That, however, ten (10) years of defendant’s sentence on Count I and all of defendant’s sentence on Count II is hereby suspended on the terms and conditions as listed in the January 24, 1996 judgment. Defendant shall receive credit for time served at Missoula County Jail from April 4, 1995, through April 7, 1995; and from October 15, 1995, through date of sentencing, January 31, 1996, in the amount of one hundred thirteen (113) days.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Sharon Noel, legal intern of the Montana Defender Project. The state was represented by Deputy County Attorney Robert Zimmerman of Missoula.

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

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Sharon Noel, legal intern of the Montana Defender Project, for representing Rusty L. Esterbrook in this matter and also Deputy County Attorney Robert Zimmerman for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Rocky Allen Ewalt, Defendant.
    NO. 215
    DECISION
    DATED this 2nd day of December, 1996.
   On December 13, 1995, it was ordered that defendant is sentenced to the Department of Corrections for a term of five years. If the defendant is placed on parole or probation during said five year period, he shall be subject to the conditions as stated in the December 13, 1995 judgment. The defendant is given credit for two days spent in jail prior to sentencing.

On November 15,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Peter Fashing, legal intern of the Montana Defender Project. The state was not represented.

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

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

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

The Sentence Review Division does urge the Department of Corrections to take into consideration placing the defendant at a Pre-Release center and also requests the defendant receive job training.

Done in open Court this 15th day of November, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Peter Fashing, legal intern of the Montana Defender Project, for representing Rocky Ewalt in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Richard Lee Graves, Defendant.
    NO. DC 92-234
    DECISION
    DATED this 2nd day of December, 1996.
   On June 9, 1994, it was the sentence and judgment of this court as follows: 1. For the offense of Sexual Intercourse Without Consent, a Felony, the defendant shall serve a period of twenty (20) years at the Montana State Prison in Deer Lodge, Montana. 2. The defendant does represent a substantial danger to other persons or society and declares that the defendant is a dangerous offender for the purposes of parole eligibility, pursuant to Section 46-18-404(l)(b), MCA. 3. The defendant is not eligible for release from the Montana State Prison until he successfully completes the prison’s sexual offender treatment program. 4. The court will suspend five years of the sentence, upon conditions as stated in the June 9, 1994 judgment.

On November 15,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Lance McKenzie, legel intern of the Montana Defender Project. The state was represented by Marty Lambert, Chief Deputy County Attorney of Gallatin County.

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

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

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

Done in open Court this 15th day of November, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Lance McKenzie, legal intern of the Montana Defender Project, for representing Richard Lee Graves in this matter and also Marty Lambert, Chief Deputy County Attorney of Gallatin County, for representing the State.


author: JUSTICE LEAPHART

text:
    EMBERNETTA D. SMITH, Plaintiff and Appellant, v. KRAYTON KERNS, d/b/a BEARTOOTH VETERINARY CLINIC, Defendant and Respondent.
    No. 96-381.
    Submitted on Briefs December 19, 1996.
    Decided January 28, 1997.
    54 St.Rep. 86.
    281 Mont. 114.
    931 P.2d 717.

      For Appellant: Frank C. Richter; Richter, Torkelson & Hanson Billings.
    For Respondent: Guy W. Rogers, Tiffany B. Lonnevik; Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Appellant, Embemetta Smith (Smith), appeals from the Thirteenth Judicial District Court’s decision granting summary judgment to Krayton Kerns, Doctor of Veterinary Medicine (Dr. Kerns). We reverse and remand.

We address only the following dispositive issue:

Did the District Court err in granting summary judgment to Dr. Kerns?

BACKGROUND

Smith and her husband arrived at Beartooth Veterinary Clinic to drop off the family dog. While Smith’s husband waited in their vehicle, Smith entered the clinic through the front door which closed behind her by way of a mechanical closing device. After handing her dog to the receptionist, Smith walked back toward the front door to leave. As she walked toward the door, Smith stopped to move Dr. Kerns’ “resident” cat which was sitting in front of the door. Smith placed the cat to the side of the door and continued exiting the building.

As she was exiting through the doorway, Smith looked back at the cat and fell on her right shoulder and left hand. As a result of this fall, Smith received a fracture of the shoulder/greater tuberosity, and other injuries.

Smith brought this action in District Court to recover damages for the injuries she incurred as a result of her fall. She alleged that the cat interfered with her safe exit from the building. The District Court granted Dr. Kerns’ motion for summary judgment, holding that Smith had failed to establish that Dr. Kerns had breached his duty to use ordinary care to maintain his premises in a reasonably safe condition or to show that Dr. Kerns’ cat was the cause of her injuries. Smith appeals this judgment.

DISCUSSION

This Court’s standard of review in appeals from summary judgment rulings is “de novo.” Motarie v. N. Mont. Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785.

The purpose behind granting summary judgment is to encourage judicial economy through the elimination of unnecessary trials. Payne Realty v. First Sec. Bank (1992), 256 Mont. 19, 24, 844 P.2d 90, 93. It is well established that a party moving for summary judgment must show a complete absence of any genuine issue as to all facts shown to be material in light of substantive principles that entitle that party to a judgment as a matter of law. Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511.

In a claim of negligence, a successful plaintiff must prove each of the following four elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the breach was the actual and proximate cause of plaintiff’s injuries; and (4) that damages resulted. Moralli v. Lake County (1992), 255 Mont. 23, 27-28, 839 P.2d 1287, 1290. Amotion for summary judgment in a negligence suit should not be granted, unless there are no factual questions material to these four substantive principles. Cereck, 637 P.2d at 511.

The District Court based its decision to grant summary judgment on Smith’s failure to establish that Dr. Kerns either breached his duty to maintain his premises in a reasonably safe condition, or to show that Dr. Kerns’ cat caused her to fall. Specifically, the District Court held that Dr. Kerns had not breached his duty to keep his premises in a reasonably safe condition as neither the doorway nor the cat were hidden or lurking dangers. The District Court also held that Smith failed to establish that Dr. Kerns’ cat was the cause of her injuries since it was not shown to have touched or tripped Smith.

As a business owner, Dr. Kerns has a duty to keep his premises reasonably safe, warn invitees of hidden or lurking dangers, and to provide a safe entry and exit onto the premises. Piedalue v. Clinton Elementary Sch. Dist. No. 32 (1984), 214 Mont. 99, 103, 692 P.2d 20, 22. Ordinarily, the breach of a legal duty is a question of fact for ajury to determine. Suhr v. Sears Roebuck & Co. (1969), 152 Mont. 344, 348, 450 P.2d 87, 89. A district court is only to determine whether a defendant is negligent when evidence is undisputed or susceptible to only one conclusion by reasonable people. Suhr, 450 P.2d at 89 (citing Robinson v. F.W. Woolworth Co. (1927), 80 Mont. 431, 261 P. 253). In the present case, there is a genuine issue of material fact as to whether Dr. Kerns breached his duty towards Smith by allowing the cat to remain in proximity to the doorway thereby leaving his clients in doubt as to whether the cat was going to bolt for the exit.

On the question of causation, the trial court acknowledged that there was a dispute in the deposition testimony as to whether the cat moved once Smith had removed it from the doorway. Embemetta Smith, the plaintiff, explained in her deposition that once she placed the cat to the side, although she feared it would move towards the door, it stayed put. Her husband, on the other hand, testified that as Embernetta fell, the cat ran out the door. In granting summary judgment the court concluded that this dispute in the testimony was not material since, in either event, there was no testimony that the cat touched or tripped Smith.

The Court believes that summary judgment in this case would also be proper because-causation cannot be shown. This inescapable conclusion results from the fact that neither Plaintiff Smith nor her contradictory witness husband, Mr. Smith, claim that the cat

actually touched or tripped the Plaintiff as she exited the clinic. The court’s conclusion is wrong in two regards. First, there is clearly a dispute in the testimony as to whether the cat remained stationary or exited the door at the same time as Smith. The court erred in concluding that the question of whether the cat moved was not a material fact. If the cat bolted and ran out the door at the same time that Smith was attempting to exit, the fact finder could certainly find that fact relevant to the question of causation. Secondly, the District Court assumed that, in order to establish causation, Smith would have to show that the cat tripped or contacted her thus making her fall. The court’s rationale, however, is too narrow an interpretation of Smith’s claim. Smith alleges in her complaint that the cat “interfered with [her] safe exit....” She testified in her deposition that, as she held the door open to exit, “I turned around to look to see if the cat was following me out the door.” In granting summary judgment because the cat did not touch or trip Smith, the court ignored the fact that, although the cat may not have tripped or contacted her, it may have constituted a distraction causing her to fall.

In Morris v. Weatherly (Minn.App. 1992), 488 N.W.2d 508, a Minnesota appellate court affirmed a jury verdict in favor of a bicyclist who had been attacked by a dog which did not come into physical contact with his person. See also Farrior v. Payton (Haw. 1977), 562 P.2d 779, 787. In Morris, the court explained that “[a]lthogh no physical contact occurred, the dog’s actions caused Morris to dismount quickly and in so doing, to fall, tearing the rotator cuff in his left shoulder.” Morris, 488 N.W.2d at 510.

Although a moving cat is presumably more distracting than a stationary cat, the fact finder may, nonetheless, conclude that, even if the cat remained put, it distracted Smith when she looked back to make sure that it was not going to bolt for the open door and run between her feet. Reasonable minds could differ as to that fact. Thus, genuine issues of material fact exist as to whether the cat moved and whether (stationary or mobile) the cat was a distraction which caused Smith to look back and fall as she exited.

Although it appears from the record that no contact occurred between Dr. Kerns’ cat and Smith, summary judgment was not appropriate as reasonable minds could still differ as to whether Dr. Kerns’ cat was the cause of Smith’s injuries.

In sum, we hold that summary judgment in the instant case was inappropriate. As the District Court points out in its order, negligence claims are generally not susceptible to summary judgment. J.L. v. Kienenberger (1993), 257 Mont. 113, 117, 848 P.2d 472, 475. In Cereck, the plaintiff slipped and fell on the snow and ice on Albertson’s property. In reversing summary judgment for Albertson’s, we held that:

The party opposing summary judgment is entitled to the benefit of all reasonable inferences that may be drawn from the offered proof. In this case it may reasonably be inferred that the piling of snow in front of the store entrance increased the hazard created by the natural accumulation of snow and ice and that the defendants should have anticipated the injuries that Mrs. Cereck received as a result of the dangerous condition.

Cereck, 637 P.2d at 512.

In the present case, the jury may reasonably infer that Dr. Kerns was negligent in allowing the cat to roam freely about the premises and distract patrons who are negotiating the stairway exit. The jury is in the best position to determine the reasonableness of Smith’s claim that the cat interfered with her safe exit from the premises. Accordingly, we reverse and remand.

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


text:
    STATE OF MONTANA, Plaintiff, vs. Adrian Hertz, Defendant.
    NO. DC 93-30
    DECISION
   On July 19,1995, it was ordered that the suspension of sentence heretofore entered on January 26, 1994 is revoked. It is further ordered that the defendant be punished by confinement in the Montana State Prison for a term in the Montana State Prison of ten (10) years for the offense of Burglary, a Felony, Count I, as specified in MCA 45-6-204(1), ten (10) years for the offense of Theft, a Felony, Count II, as specified in MCA45-6-301(l)(a), and ten (10) years for the offense of Theft, a Felony, Count III, as specified in MCA 45-6-301(l)(a), with none of that time suspended. The sentence imposed on Count II shall run concurrently with the sentence on Count III. The sentences imposed on Counts II and III shall run concurrent with the sentence on Count I. It is further ordered that the defendant shall receive credit for jail time served at initial sentencing of one hundred twenty (120) days. The defendant shall not receive credit for any other elapsed probationary time due to his violations of his probation. The Court recommends that the defendant not be considered eligible for parole until he has successfully completed the Addictive Diseases Study Program at the Montana State Prison. The Court orders that in the event the defendant secures early release from prison via parole, that he shall be responsible for the outstanding balance of his restitution to the victims of these offenses: Mr. and Mrs. James Brogger, 1205 Sloan Road, Ronan, Montana 59864 in the amount of $382.00; and State Farm Insurance, Claim No. 26 9431142, P.O. Box 4645, Missoula, Montana 59806-4645 in the amount of $1239.40, for a total of $1621.40.

DATED this 2nd day of December, 1996.

On November 15,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition shall be dismissed with prejudice.

Done in open Court this 15th day of November, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Adrian Hertz, Defendant.
    NO. DC 93-85
    DECISION
   On July 19,1995, it was ordered that the suspension of sentence heretofore entered on January 26, 1994 is revoked. It is further ordered that the defendant be punished by confinement in the Montana State Prison for a term in the Montana State Prison of ten (10) years for the offense of Theft, a Felony, Count II, as specified in MCA 45-6-204(1), ten (10) years for the offense of Criminal Mischief, a Felony, Count III, as specified in MCA 45-6-101(l)(a), ten (10) years for the offense of Burglary, a Felony, Count IV, as specified in MCA 45-6-204(1), ten years (10) for the offenses of Theft, a Felony, Count V, as specified in MCA45-6-301(l)(a), and ten (10) years for the offense of Criminal Mischief, a Felony, Count VI, as specified in MCA 45-6-101(l)(a). The sentences imposed in Counts III, IV, V and VI shall run concurrently with the sentences imposed on Count II. The sentences imposed in Counts II, III, IV, V and VI shall run concurrently with the sentence imposed in DC 93-30. It is further ordered that the defendant shall receive credit for jail time served at initial sentencing of one hundred twenty (120) days. The defendant shall not receive credit for any other elapsed probationary time due to his violations of his probation. The Court recommends that the defendant not be considered eligible for parole until he has successfully completed the Addictive Diseases Study Program at the Montana State Prison. The Court orders that in the event the defendant secures early release from prison via parole, that he shall be responsible for the outstanding balance of his restitution to the victims of these offenses: Lorinda Mikesell, 4th Avenue and 5th Street, Pablo, Montana 59855 in the amount of $85.00; Bob Lulow, d/b/a Bob’s Auto Mark, P.O. Box 647, Ronan, Montana 59864 in the amount of $250.00; and Farmers Insurance Group, Claim No. 16-44939, P.O. Box 3417, Missoula, Montana 59806 in the amount of $3151.25.

DATED this 2nd day of December, 1996.

On November 15,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition shall he dismissed with prejudice.

Done in open Court this 15 th day of November, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Robert John Jenkins, Defendant.
    NO. 94-53
    DECISION
   On July 29,1996, the Court’s suspended sentence imposed on September 25,1995 for the offense of Criminal possession of dangerous drugs, was hereby revoked. The defendant Robert John Jenkins is sentenced to a term of five (5) years in the Montana State Prison. The defendant shall not be eligible for parole consideration until he has successfully completed the Prison’s chemical dependency program.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by attorney Brian Fay. The state was not represented.

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

DATED this 2nd day of December, 1996.

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Alternate Member, Hon. Robert Boyd

The Sentence Review Board wishes to thank attorney Brian Fay for representing Robert J. Jenkins in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Ray J. Keaton, Defendant.
    NO. DC 95-125B
    DECISION
   On July 11,1996, it was the judgment of the Court that the defendant be committed: 1. In Cause No. DC 95-125(B) to the Department of Corrections for a period of ten (10) years for appropriate placement by that agency; 2. In Cause No. DC 96-096(B) to the Department of Corrections for a period often (10) years for appropriate placement by that agency. These terms are to be served consecutively. Of this twenty (20) year period of commitment, ten (10) years are suspended. Conditions of probation and parole are stated in the July 11, 1996 judgment. The defendant is hereby given credit for one hundred three (103) days served in the Flathead County Detention Center pending final disposition in this matter.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

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

DATED this 5th day of December, 1996.

Chairman, Hon. Jeffrey M. Sherlock

Member, Hon. Wm. Neis Swandal

Alternate Member, Hon. Robert Boyd

The Sentence Review Board wishes to thank Ray J. Keaton for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Tyrone L. LaBuff, Defendant.
    NO. CDC 95-335
    DECISION
    DATED this 2nd day of December, 1996.
   On September 26,1996, this matter was before the Court for a disposition hearing. The Court accepted Defendant’s change of plea to True to the alleged violations as listed in the Petition for Revocation. It is hereby ordered that the remainder of defendant’s sentence is revoked. The remainder of defendant’s sentence shall be served at the Montana State Prison. On December 29, 1995, it was ordered, adjudged and decreed that the defendant is sentenced for the offense of Count I: Domestic Abuse, a Felony the Court sentenced defendant to the Montana State Prison for a period of five (5) years suspended. For the offense of Count II: Criminal Mischief, a Misdemeanor, the Court sentenced defendant to the Cascade County Detention Center for a period of six (6) months suspended. This sentence is to run concurrent with the sentence imposed on Count I. Defendant is given credit for 62 days already served. Defendant is subject to conditions as stated in the December 29, 1995 judgment.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition shall be dismissed with prejudice.

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Frederick Lamb, Defendant.
    NO. DC 94-667
    DECISION
    DATED this 2nd day of December, 1996.
   On July 13, 1995, it was ordered, adjudged and decreed that the said Frederick Lamb be committed to the Director of the Department of Corrections pursuant to Section 46-14-312(2), Montana Code Annotated to be placed in an appropriate institution which the Court recommends as the Montana State Hospital, Galen Campus, Warm Springs, Montana, for custody, care and treatment for the period of time not to exceed the following: 1. On Count I: Attempt (Felony) (Aggravated Assault) the defendant is sentenced for the term of fifteen (15) years. It is further ordered that because the defendant, while engaged in the commission of the offense of Count I: Attempt (Felony) (Aggravated Assault) knowingly used a weapon, to wit: bomb/explosive device; he is hereby sentenced to the term of five (5) years to the Director of the Department of Corrections under the authority of 46-18-221, Montana Code Annotated. This term shall be served consecutively with the term imposed for the commission of the crime of Count I: Attempt (Felony) (Aggravated Assault) as charged in the Information. 2. On Count III: Possession of a Destructive Device (Felony) the defendant is sentenced for the term of ten (10) years to run concurrently with the sentence received in Count I of this criminal cause. 3. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 205 days. It is further ordered that the defendant will be designated a dangerous felony offender for sentencing, pursuant to Section 46-18-404(3), Et. Seq. Montana Code Annotated. It is further ordered that additional conditions shall apply as stated in the July 13, 1995 judgment. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant proceeded Pro Se via phone conference call from Spur, TX. The state was not represented.

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

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Frederick Lamb for representing himself in this matter.


author: JUSTICE HUNT

text:
    IN RE THE ESTATE OF CHRISTINE ELIZABETH TIPP, Deceased.
    No. 96-348.
    Submitted on Briefs December 12, 1996.
    Decided February 4, 1997.
    54. St.Rep. 90.
    281 Mont. 120.
    933 P.2d 182.

      For Appellant: Bryan Charles Tipp, Richard R. Buley, Tipp & Buley, Missoula.
    For Respondent: Clinton H. Kammerer, Kammerer Law Offices, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant Dorothy Shodin (Dorothy) appeals the decision of the Fourth Judicial District Court, Missoula County, determining that the testamentary will and property transfer of Christine Elizabeth Tipp (Christine) were not entered into as a result of undue influence, and admitting the will to probate. We affirm.

ISSUE

The sole issue presented on appeal is whether the District Court erred in finding that Christine’s will and property transfer were not the products of undue influence.

FACTS

Christine died in 1994 at the age of eighty-six. She and her late husband, George, had seven children including Dorothy, the appellant in this case, and Sylvia, the respondent.

In 1984 or 1985, George became incapacitated by a medical condition which resulted in partial paralysis. At this time, Sylvia became involved in her parents’ care, managing their finances and transporting them around as needed. Christine did not drive and, by this time, George was no longer able to do so. Because Sylvia so often took them to doctor appointments and ran other necessary errands, George and Christine gave her their car.

Because of George’s partial paralysis, he was placed in a nursing home. The entire family, however, was very dissatisfied with the care he received and he was quickly brought home. In 1988, George died; Christine continued to occupy their home alone after his death. Sylvia and another daughter, Virginia, would look in on their mother and provide whatever assistance she needed. Sylvia continued to provide transportation and to manage Christine’s financial affairs. By 1990, Christine had been diagnosed with advanced breast cancer and was under the care of an oncologist.

In 1992, Christine fell at home and broke her hip. She thereafter required more frequent and continual care, which Sylvia primarily provided. Also in 1992, Sylvia discussed with her mother the possibility of Sylvia buying Christine’s house. Upon hearing of the plan, Sylvia’s brother Ray obtained an appraisal of the house. No other steps were taken in furtherance of such a sale.

In March of 1993, Sylvia twice transported Christine to the office of her attorney. Christine later revealed that the purpose of the visits had been to change her will and to transfer the ownership of her house to joint tenancy with right of survivorship between herself and Sylvia. In this way, Sylvia would receive the house when Christine died.

In April of 1993, Christine traveled to California to be with her oldest son, who was himself dying of cancer. She made the trip alone and unassisted, and returned to Montana in the same manner. During the time Christine was in California, Sylvia and her husband Gordon moved into Christine’s home. Thereafter, Sylvia was almost entirely responsible for her mother’s care. Christine became increasingly ill and, in February, 1994, she passed away.

Following Christine’s death, her other children became aware of the will she had executed in March, 1993, as well as the simultaneous transfer of the home to joint tenancy with Sylvia. Dorothy then brought suit to prevent the will’s admittance to probate and to set aside the property transfer, asserting that the will and transfer were the products of undue influence. After a thorough hearing, the District Court determined that the will and transfer were not in fact the products of undue influence. The court then ordered the will admitted to probate. Dorothy appeals.

STANDARD OF REVIEW

The case law regarding the standard of review in estate cases at equity is inconsistent and contradictory. On the one hand, this Court has determined that the proper standard of review is whether substantial credible evidence supports the district court’s findings. See, for example, Christensen v. Britton (1989), 240 Mont. 393, 784 P.2d 908; In re Estate of Palmer (1985), 218 Mont. 285, 708 P.2d 242; Cameron v. Cameron (1978), 179 Mont. 219, 587 P.2d 939. On the other hand, we have also declared that the proper standard of review in such cases is whether the district court’s findings are clearly erroneous. See, for example, In re Estate of Parini v. Montana Dept. of Revenue (1996), [279 Mont. 85], 926 P.2d 741; Flikkema v. Kimm (1992), 255 Mont. 34, 839 P.2d 1293; In re Estate of Flynn (1995), 274 Mont. 199, 908 P.2d 661.

Cases using the “substantial credible evidence” standard of review generally cite § 3-2-204(5), MCA, which provides:

[i]n equity cases and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record, whether the same be presented by specifications of particulars in which the evidence is alleged to be insufficient or not, and determine the same, as well as questions of law ...

In re Estate of Melvin (1993), 261 Mont. 408, 412, 862 P.2d 1159, 1162 (citations omitted); In re Estate of Barber (1989), 239 Mont. 129, 137, 779 P.2d 477, 482. Cases using the “clearly erroneous” standard of review generally cite Rule 52(a), M.R.Civ.P., which provides in part:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon .... Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. ...

Flikkema, 839 P.2d at 1296; In re Estate of White (1984), 212 Mont. 228, 231-32, 686 P.2d 915, 916-17.

While nothing in § 3-2-204(5), MCA, precludes the use of the “clearly erroneous” test, Rule 52(a), M.R.Civ.P, by its terms, mandates that this more stringent test be applied to “all actions tried upon the facts without a jury or with an advisory jury,” without regard for whether the case arises at law or in equity. For this reason, we conclude that the proper standard of review in estate cases at equity is whether the findings of the district court are clearly erroneous. Absent a determination that the findings are clearly erroneous, they will not be set aside. Flikkema, 839 P.2d at 1296.

DISCUSSION

Did the District Court err in finding that Christine’s will and property transfer were not the products of undue influence?

In seeking to have the will and property transfer set aside, Dorothy alleges that the testamentary changes were the products of undue influence asserted upon Christine by Sylvia. Dorothy contends that Sylvia was in a position to assert such influence because of her role as primary care giver to Christine and because of the fact that she lived with Christine. Dorothy further contends that Christine was particularly susceptible to this influence due to her advanced age and illness.

Section 28-2-407, MCA, provides:

Undue influence consists in:
(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.

Section 28-2-407, MCA. See In re Estate of Jochems (1992), 252 Mont. 24, 28, 826 P.2d 534, 536. In determining whether undue influence was exercised, the court must consider the following:

(1) the confidential relationship of the person allegedly attempting to influence the testator;
(2) the physical condition of the testator as it affects his or her ability to withstand the influence;
(3) the mental condition of the testator as it affects his or her ability to withstand the influence;
(4) the unnaturalness of the disposition as it relates to showing an unbalanced mind or a mind easily susceptible to undue influence; and
(5) the demands and importunities as they may have affected the testator, taking into consideration the time, place, and surrounding circumstances.

Jochems, 826 P.2d at 536 (citing In re Estate of Luger (1990), 244 Mont. 301, 303-04, 797 P.2d 229, 231 and Christensen, 784 P.2d at 911). These same criteria are used in determining whether undue influence existed regardless of whether the case involves a donor making a gift or a testator making a will. Cameron, 587 P.2d at 945. Further, as this Court stated in Christensen, “[u]ndue influence is never presumed and must be proven like any other fact.” Christensen, 784 P.2d at 911 (citations omitted).

In this case, the evidence clearly showed that Christine and Sylvia had a confidential relationship. Sylvia was not only Christine’s daughter but her primary care giver, and she lived with Christine. Nor is it disputed that Christine’s physical condition might serve to render a donor susceptible to influence; Christine was both elderly and seriously ill at the time she made her will and property transfer. The parties contest, however, whether Christine’s mental condition would render her susceptible to influence. While Sylvia contends that Christine was alert and in possession of all her faculties until just shortly before her death, Dorothy contends that Christine was prone to forgetfulness and confusion, indicating a mental state in which she might be susceptible to undue influence. The testimony of the family members on this point is directly contradictory and cannot be reconciled.

Several other individuals, however, also testified at the hearing regarding Christine’s mental state around the time that she made her will. These other witnesses, unrelated to the family, consistently testified that Christine was fully capable of appreciating her actions and their ramifications when she changed her will and placed Sylvia’s name on the deed to her home. Christine’s doctor testified that as of April of 1993, Christine was “very independent” and in control of her cognitive powers. The secretary to the attorney who made Christine’s will, anticipating possible problems from a will that essentially disinherited several other children, made a point to observe Christine’s demeanor closely while the will was being prepared. When questioned about her impression, the secretary testified:

Q. Is it your belief, based on your knowledge about Christine and your familiarity with her, at least since 1986, that she was fully aware of what she was doing on this particular day?
A. Yes.
Q. This March 31 of 1993, right?
A. Yes.
Q. Did there seem to be any confusion in her mind as far as what it was she was there for?
A. No, sir.

The attorney who prepared the will similarly testified that he was satisfied that Christine understood what she was doing and the consequences of her acts. In addition, one of Christine’s neighbors and two hospice workers testified that Christine remained alert and self-possessed even months after the date on which she changed her will. Furthermore, the evidence presented showed that Christine independently planned a trip to California in the weeks following the change to her will. Such a trip would have been extremely difficult for an individual whose mental faculties were impaired. Yet Christine undertook the trip with the encouragement of her children, and apparently experienced no problems while traveling alone.

Given such evidence, the District Court determined that Dorothy had failed to prove the third factor in the above-referenced test for undue influence. While the testimony in this case conflicted, Sylvia presented evidence which supported the District Court’s findings regarding Christine’s mental state, and those findings are not clearly erroneous.

Dorothy also contests the District Court’s finding that she had failed to prove the fourth factor necessary to establish undue influence, the unnaturalness of the disposition.

In arguing that the will and property transfer were unnatural dispositions, Dorothy points out that the arrangements Christine made effectively disinherited all of her children except Sylvia. This Court has held, however, that “the fact that a parent might leave the majority of his or her assets to only one child, while excluding others, is not in and of itself unnatural.” In re Estate of Lien (1995), 270 Mont. 295, 305, 892 P.2d 530, 535 (citing Flikkema, 839 P.2d at 1298).

Dorothy argues, however, that the evidence presented nevertheless tended to prove an unnatural disposition in this case. In particular, Dorothy points out that Christine had another, older will in place for over thirty years which split her estate evenly between all her children, a commitment to “fairness” which she and her husband had honored almost all their lives. Given this history, Dorothy argues that it was unnatural for Christine to decide, less than a year before her death, to leave the bulk of her estate to only one child.

The fact that Christine already had a will drawn up at the time she decided to change its provisions is largely irrelevant. No one disputes that she had the absolute right to destroy or change her will at any time, should she choose to do so. Yet Dorothy insists that the change must have been unnatural because it contradicted Christine’s previously articulated desire to treat all of her children equally. There was no reason, Dorothy argues, for Christine to independently wish to make such a radical alteration in her estate planning; therefore, the new will must have been a product of Sylvia’s undue influence.

Yet the testimony of various witnesses at the hearing illuminated probable reasons for Christine to make such a change: her increasingly close relationship with Sylvia and her gratitude to Sylvia for taking care of her. While it is not disputed that all of Christine’s children loved her, it is also not disputed that Sylvia assumed the greatest share of responsibility in caring for Christine. Christine herself was apparently acutely aware of this fact. As a hospice worker testified:

[Christine’s] main concern was for Sylvia and she told me — this came about when I was talking to them both about long-range care plans and how they were going to manage if they planned to stay at home until her death with her care. [S]he said that, yes, that was, in fact, the agreement that she had made with Sylvia, because she did not want to go to a nursing home, and she had given her other children the opportunity to care for her, and they had chosen not to do it or not to do it in a fashion that she was comfortable with. [S]he told me, in fact, that she was leaving her home to Sylvia in exchange for taking care of her until she died, whether it was tomorrow or, you know, five years from now ...

The District Court noted that Christine obviously dearly loved all the members of her family and, in her own way, remained close to each of her children. Nevertheless, given Christine’s articulated rationale for leaving her home to Sylvia and the fact that Sylvia was Christine’s primary care giver, the District Court determined that the will and property transfer in this case were not unnatural. These findings are not clearly erroneous.

Dorothy further argues that the District Court erred in finding that she had failed to prove the fifth factor, the existence of demands and importunities calculated to affect the testator. She contends that the deed and will were made at a time when Sylvia controlled all of Christine’s finances and assets. Dorothy further contends that the will and transfer were made Tinder a threat of institutionalization, a particular fear of Christine’s in light of the substandard care her husband had received in a nursing home years before.

Sylvia’s management of Christine’s finances is not, in and of itself, a “demand or importunity’ made upon the donor. The implication, however, is that Sylvia may have wielded this financial power to force her mother to make a will in her favor. Yet this theory is pure speculation, unsupported by any of the evidence presented. The District Court did not err in largely disregarding it.

Similarly, while certain family members testified that Sylvia had threatened Christine with institutionalization, Sylvia categorically denied ever having done so. No independent evidence or witnesses were presented to support this allegation, and it was within the discretion of the District Court to disregard this unsubstantiated theory as well.

After an extensive hearing, the District Court found that Dorothy had failed to prove the existence of undue influence. It consequently declined to set aside the will and property transfer. Having thoroughly reviewed the record, we determine that the findings of the District Court are not clearly erroneous. Its decision is therefore affirmed.

JUSTICES GRAY, NELSON, LEAPHART and TRIEWEILER concur.


text:
    STATE OF MONTANA, Plaintiff, vs. Todd L. Litchfield, Defendant.
    NO. DC 96-02
    DECISION
    DATED this 2nd day of December, 1996.
   On June 13, 1996, it was the judgment of the court that the defendant, on Count I, Theft, be and is hereby sentenced to the Montana State Prison, in Deer Lodge, Montana, for a period of four (4) years with none of those years to be suspended. On Count II, Criminal Endangerment, the defendant be and is hereby sentenced to the Montana State Prison, in Deer Lodge, Montana, for a period of six (6) years with none of those years to be suspended. The above two sentences shall run consecutively with each other. Upon release from the Montana State Prison, terms and conditions of parole shall apply as stated in the June 13, 1996 judgment. The defendant shall be given credit for time served as of today, which constitutes one hundred and one (101) days.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Tbdd L. Litchfield for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Truman Benjamin Plummer, Defendant.
    NO. DC 93-29
    DECISION
    DATED this 2nd day of December, 1996.
   On June 21,1996, it was the judgment of the Court that defendant’s prior deferred imposition of sentence is hereby revoked, and defendant is hereby sentenced to a term of twenty (20) years in the Montana State Prison, with ten (10) years of said sentence suspended. As a condition of defendant’s suspended sentence, and during any period of probation or parole, defendant shall abide by terms and conditions as stated in the June 21,1996 judgment. The Court having considered Section 46-18-201(4) MCA, the Court expressly denies defendant credit towards his sentence for any elapsed time while defendant was under his initial probationary sentence, except for time during which defendant was actually incarcerated. The Court’s reasons for denying defendant credit are defendant’s failure to obtain sexual offender treatment and defendant’s commission of a new criminal offense in violation of the terms and conditions of his probation. Defendant shall receive credit for two (2) days time already served in the Sanders County Jail as of the date of this judgment.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Truman B. Plummer for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Eugene E. Rudd, Defendant.
    NO. DC 96-55
    DECISION
   On July 19, 1996, it was the sentence and judgment of the Court as follows: 1. The court finds the defendant guilty of Count 1: Driving Under the Influence of Alcohol, Fourth or Subsequent Offense, a Felony, in violation of Section 61-8-401, MCA. 2. For the offense of Driving Under the Influence, a Felony, the defendant shall be committed to the Department of Corrections for a period of ten (10) years. 3. The Court recommends that the defendant pay restitution in the amount of $1,285.17 to the Clerk of the District Court, Eighteenth Judicial District, 615 South 16th, Bozeman, Montana. Further, the Court recommends that the defendant pay a restitution fee of $128.00 and a $20.00 administrative fee. 4. The Court recommends that the defendant receive alcohol/chemical dependency treatment. 5. The court finds the defendant guilty of Count 2: Driving While License is Suspended or Revoked, a Misdemeanor, in violation of Section 61-5-212, MCA. 6. For the offense of Driving While License is Suspended or Revoked, a Misdemeanor, the defendant shall serve 10 days in the Gallatin County Detention Center, and pay a $15.00 administrative fee and $5.00 court automation fee to the Clerk of the District Court. The defendant shall receive credit for time previously served. 7. The Court finds the defendant guilty of Count 3: Operating a Motor Vehicle Without Liability Insurance, a Misdemeanor, in violation of Section 61-6-301(4) MCA. 8. For the offense of Operating a Motor Vehicle without Liability Insurance, a Misdemeanor, the defendant shall pay a fine of $250.00 and a $15.00 administrative fee and $5.00 fee to the Clerk of the District Court. 9. The Court finds the defendant guilty of Count 4: Leaving the Scene of an Accident, a Misdemeanor, in violation of Section 61-7-104, MCA. 10. For the offense of Leaving the Scene of an Accident, a Misdemeanor, the defendant shall serve 15 days in the Gallatin County Detention Center. The defendant shall receive credit for time previously served. The Court waives the administrative fees. 11. The court finds the defendant guilty of Count 5: Failure to Give Notice of an Accident by Quickest Means, a Misdemeanor, in violation of Section 61-7-108, MCA. 12. For the offense of Failure to Give Notice of an Accident by Quickest Means, a Misdemeanor, the defendant shall serve 10 days in the Gallatin County Detention Center. The defendant shall receive credit for time previously served. 13. All sentences are to run concurrently.

DATED this 2nd day of December, 1996.

On November 15,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Jeanie LaVonne, legal intern of the Montana Defender Project. The state was not represented.

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

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

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

The Sentence Review Division did additionally factor the defendant’s extensive prior felony and misdemeanor record when making their decision.

Done in open Court this 15th day of November, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Jeanie LaVonne, legal intern of the Montana Defender Project, for representing Eugene E. Rudd in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Randall J. Sam, Defendant.
    NO. 8925
    DECISION
    DATED this 2nd day of December, 1996.
   On January 9, 1995, the Court found the defendant in violation of the conditions of his suspended sentence and it is the judgment of the Court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and he is hereby committed to the Department of Corrections for a term of fifteen (15) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. Due to the defendant’s failure to comply with the terms and conditions of his suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this Order, except that he shall receive credit from July 12,1991, through July 18, 1991; and from December 16, 1994, through date of sentencing, January 9, 1995, for thirty-two (32) days jail time which he has previously served.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Randall J. Sam for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Kiely K. Schrapps, Defendant.
    NO. 11912
    DECISION
    DATED this 2nd day of December, 1996.
   On July 8,1996, it was the judgment of the Court that Kiely K. Schrapps be and is hereby sentenced to a term of ten (10) years on Count I: Driving a motor vehicle upon a public highway while under the influence of alcohol or drugs, 4th or subsequent offense, a felony, in the Montana State Prison in Deer Lodge, Montana, and to a term of six (6) months on Count II: Criminal Possession of dangerous drugs, a misdemeanor, in the Missoula County Jail in Missoula, Montana. The sentences shall run concurrently with each other. Defendant shall receive credit for time served at Missoula County Jail from November 14, 1995, through December 7, 1995; and from January 26, 1996, through June 5, 1996, in the amount of one hundred fifty-six (156) days.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant proceeded Pro Se via phone conference call from Spur, TX. The state was not represented.

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

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Kiely K. Schrapps for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Kiely K. Schrapps, Defendant.
    NO. 11978
    DECISION
   On July 8,1996, it was the judgment of the Court that Kiely K Schrapps be and is hereby sentenced to a term of ten (10) years on Count I: Criminal Endangerment, a Felony, in the Montana State Prison in Deer Lodge, Montana; and to a term of six (6) months each on Count II: Reckless driving while eluding peace officer, a misdemeanor, Count III: Driving while suspended/revoked, a misdemeanor, and Count IV: Driving without proof of liability insurance, a misdemeanor, in the Missoula County Jail in Missoula, Montana. The sentences shall run concurrently with each other and consecutively with the sentence imposed in Cause No. 11912.

DATED this 2nd day of December, 1996.

Defendant shall receive credit for time served at Missoula County Jail from January 14,1996, through January 24,1996; from January 26,1996, through June 5,1996, in the amount of one hundred seventy-four (174) days.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant proceeded Pro Se via phone conference call from Spur, TX. The state was not represented.

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

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Kiely K Schrapps for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Richard A. Strelnik, Defendant.
    NO. 11819
    DECISION
   On July 8, 1996, it was the judgment of the court that Richard Allan Strelnik be and is hereby sentenced to a term of twenty (20) years in the Montana State Prison in Deer Lodge, Montana for the offense of Sexual Assault, a Felony. It is the recommendation of the Court that the defendant shall complete Phase I and II of the sex offender treatment program at the Montana State Prison before becoming eligible for release or parole. Also, it is the recommendation of the Court that before becoming eligible for release or parole that the defendant shall present a viable and reasonable plan to the Parole Board for payment of the restitution to the victim. It is further ordered that the defendant shall register as a sexual offender, pursuant to Section 46-23-504,46-23-505, and 46-23-506, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for the remainder of his lifetime following his release from custody. The defendant shall further notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if he should change his address during this registration period. That, however, ten (10) years of defendant’s sentence is hereby suspended on the terms and conditions as listed in the July 8,1996 judgment. Defendant shall receive credit for time served at Missoula County J ail from March 3,1996, through March 4,1996, in the amount of two (2) days. It is further ordered that as 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 to Dwain, Judy or Emily Wright of 2400 W. Central, Missoula, MT 59801, in the amount of Seven Thousand One Hundred Fifty Dollars ($7,150.00).

DATED this 5th day of December, 1996.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by attorney Milton Datsopoulos. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be modified as follows: The defendant is sentenced to Montana State Prison for a term of twenty (20) years with fifteen (15) years suspended. All conditions as stated in the July 8, 1996 judgment shall remain the same.

Reasons for the amendment are because it is consistent with the recommendation of the county attorney and also because of the defendant’s present health problems.

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank attorney Milton Datsopoulos for representing Richard Strelnik in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Chenoa Rae Toulouse, Defendant.
    NO. 11834
    DECISION
   On April 17, 1996, it was the judgment of the Court that Chenoa Rae Toulouse is hereby sentenced to a term of twenty-five (25) years on Count I: Aggravated Burglary, a Felony, to a term of ten (10) years on Count II: Aggravated Kidnapping, a Felony, and to a term of twenty-five (25) years on Count III: Robbery, a Felony, in the Women’s Correctional Facility at Billings, Montana. The sentences shall run concurrently with each other and concurrently with the sentence imposed in Cause No. 11822 but consecutively to the sentence imposed in Cause No. 11499. It is further ordered that the defendant shall register as a violent offender, pursuant to Section 46-23-504 and 46-23-505, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein she resides for a period of ten (10) years following her release from custody. The defendant shall further notify any law enforcement agency with whom she was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if she should change her address during this ten (10) year period. That, however, ten (10) years on each of defendant’s sentences on Count I and III are hereby suspended on the terms and conditions as stated in the April 17,1996 judgment. Defendant shall receive credit for time served at Missoula County Jail from October 14, 1995, through date of sentencing, April 17, 1996, in the amount of one hundred eighty-seven (187) days.

DATED this 2nd day of December, 1996.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was represented by Deputy County Attorney Robert Zimmerman of Missoula.

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

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Chenoa Rae Ibulouse for representing herself in this matter and also Deputy County Attorney Robert Zimmerman of Missoula.


text:
    STATE OF MONTANA, Plaintiff, vs. Chenoa Rae Toulouse, Defendant.
    NO. 11499
    DECISION
   On April 17,1996, it was the judgment of the Court that defendant’s prior deferred sentences are hereby revoked and that the defendant be and she is hereby sentenced to a term of forty (40) years on Count I: Robbery, a Felony, in the Women’s Correctional Facility at Billings, Montana; and to a term of six (6) months each on Count II and III: Deceptive Practices, a Misdemeanor, in the Missoula County Jail in Missoula, Montana. The sentences shall run concurrently with each other and consecutively to the sentences imposed in Cause No. 11822 and 11834. That, however, thirty (30) years of defendant’s sentence on Count I is hereby suspended on the terms and conditions as listed in the April 17,1996judgment. The defendant shall receive credit from April 28, 1995 (in and out same day); from June 19, 1995, through July 12, 1995; and from October 14, 1995, through date of sentencing, April 17, 1996, for two hundred twelve (212) days jail time which she has previously served. It is further ordered that restitution in this matter is received by the Clerk of Court, the Clerk may pro rate partial payments to the victim. The restitution shall be disbursed as set out in the Judgment done in open Court on the 27th days of September, 1995.

DATED this 2nd day of December, 1996.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was represented by Deputy County Attorney Robert Zimmerman of Missoula.

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

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Chenoa Rae Toulouse for representing herself in this matter and also Deputy County Attorney Robert Zimmerman for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Chenoa Rae Toulouse, Defendant.
    NO. 11822
    DECISION
   On April 17, 1996, it was the judgment of the Court that the defendant be and is hereby sentenced to a term of fifteen (15) years in the Women’s Correctional Facility at Billings, Montana. The sentence shall run concurrently with the sentence imposed in Cause No. 11834 but consecutively with the sentence imposed in Cause No. 11499. It is further ordered that the defendant shall register as a violent offender, pursuant to Section 46-23-504 and 46-23-505, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein she resides for a period of ten (10) years following her release from custody. The defendant shall further notify any law enforcement agency with whom she was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if she should change her address during this ten (10) year period. It is the recommendation of the Court that as a condition of any parole or early release the defendant shall abide by all of the terms and conditions as stated in the April 17,1996 judgment. Defendant shall receive credit for time served at Missoula County Jail from October 14, 1995, through date of sentencing, April 17, 1996, in the amount of one hundred eighty-seven (187) days.

DATED this 2nd day of December, 1996.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was represented by Deputy County Attorney Robert Zimmerman of Missoula.

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

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Chenoa Rae Toulouse for representing herself in this matter and also Deputy County Attorney Robert Zimmerman of Missoula for representing the State.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BILLIE L. PENDERGRASS, Defendant and Appellant.
    No. 96-419.
    Submitted on Briefs December 12, 1996.
    Decided February 4, 1997.
    54 St.Rep. 94.
    281 Mont. 129.
    932 P.2d 1056.

      For Appellant: Billie Leon Pendergrass, Pro Se, Prineville, Oregon.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Jennifer Anders, Ass’t Attorney General, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Billie Leon Pendergrass (Pendergrass) appeals from the judgment and sentence entered by the Third Judicial District Court, Powell County, on his conviction of the offense of misdemeanor escape. We affirm.

The dispositive issue on appeal is whether the District Court erred in concluding that Pendergrass’ escape sentence did not merge with the other sentences he was serving.

The following facts are undisputed. Pendergrass was an inmate at the Montana State Prison (MSP) serving terms of imprisonment exceeding thirty years on sentences imposed by district courts in Flathead and Lewis and Clark Counties between 1975 and 1979. On or about August 20,1990, Pendergrass walked away from his prison job at the Territorial Prison Museum. He subsequently turned himself in and was charged with the offense of felony escape under § 45-7-306, MCA. Pendergrass pled guilty to the charge and, in March of 1991, the District Court sentenced him to a three-year term of imprisonment at the MSP. The court specified that the sentence was to run consecutively to the sentences Pendergrass was serving.

Pendergrass was paroled on or about April 20,1992. In the spring of 1994, his parole was revoked and he was returned to the MSP. Thereafter, he filed a habeas corpus petition with the District Court, claiming that he had served all of his sentences, including the escape sentence, because his sentences merged and began to run concurrently when he was paroled. The District Court denied his petition on the grounds that the consecutive sentences ran concurrently only while Pendergrass remained on parole.

In December of 1994, Pendergrass filed a habeas corpus petition with this Court. He claimed that, pursuant to § 46-18-401(5), MCA, he had served all of his sentences — including the felony escape sentence — because the consecutive sentences merged and began to run concurrently when he was paroled. We denied his petition in August of 1995, on the grounds that the merger provision contained in § 46-18-401(5), MCA, applies only if the sentencing court does not specify whether the sentences are to run concurrently or consecutively. In Pendergrass’ case, the sentencing courts specified whether the sentences imposed were concurrent or consecutive and, therefore, the § 46-18-401(5), MCA, merger provision did not apply.

In 1996, Pendergrass moved the District Court for correction of his felony escape sentence pursuant to our decision in State v. Nelson (1996), 275 Mont. 86, 910 P.2d 247. He also petitioned this Court for postconviction relief claiming that, under Nelson, he had been erroneously sentenced in 1991 for felony escape. We granted his petition and remanded to the District Court for resentencing under the misdemeanor escape provisions of § 45-7-306, MCA. At the resentencing hearing, Pendergrass again argued that his escape sentence and the other sentences he was serving merged and began running concurrently when he was paroled. The District Court again rejected this argument and sentenced Pendergrass to six months in the Powell County Jail for misdemeanor escape, suspended on the condition that he pay a $500 fine to the Powell County Clerk of Court within four months of his release from prison. Pendergrass appeals.

Did the District Court err in concluding that Pendergrass’ escape sentence did not merge with the other sentences he was serving?

The District Corut’s resentencing order states that “the sentence imposed hereby does not merge with the sentences presently being served by [Pendergrass] as argued by [him].” District courts have broad discretion in sentencing criminal defendants and we ordinarily review sentences only to determine whether the court abused its discretion. State v. Zabawa (1996), [279 Mont. 307], 928 P.2d 151, 157 (citation omitted). Here, however, the District Court made a legal conclusion that Pendergrass’ sentences did not merge. We review a district court’s conclusion of law to determine whether its interpretation of the law is correct. State v. Vargas (1996), [279 Mont. 357], 928 P.2d 165, 166 (citation omitted).

Pendergrass acknowledges that both the District Court and this Court previously have denied his merger arguments in the context of his escape sentence. Nevertheless, based on his underlying argument that the escape sentence merged with his other sentences and that all of the sentences began running concurrently when he was paroled in April of 1992, he contends in this appeal that the District Court was required to give him credit for time served pursuant to § 46-18-402, MCA. The State of Montana argues that our denial of Pendergrass’ merger argument in his previous habeas corpus action is now the law of the case and, therefore, Pendergrass cannot argue to the contrary in seeking credit for time served on the escape sentence.

Under the doctrine of law of the case, a prior decision by this Court resolving a particular issue between the same parties in the same case is binding and cannot be relitigated in a subsequent appeal. State v. Smith (1993), 261 Mont. 419, 430, 863 P.2d 1000, 1007 (citing State v. Van Dyken (1990), 242 Mont. 415, 425-26, 791 P.2d 1350, 1356). Indeed, our prior decision must be adhered to throughout all subsequent proceedings, both in the trial court and on appeal. See Haines Pipeline Const. v. Montana Power (1994), 265 Mont. 282, 289, 876 P.2d 632, 637.

Pendergrass raised his merger argument vis-a-vis his escape sentence in his 1994 habeas corpus action in this Court. We rejected that argument, concluding that the merger provision contained in § 46-18-401(5), MCA, did not apply. On resentencing in the District Court for the same escape, Pendergrass premised his “time served” argument on the merger argument previously rejected by this Court. The District Court was not free to ignore our decision or to make a legal conclusion contrary to, or inconsistent with, the law of the case as pronounced by this Court. Haines, 876 P.2d at 637. We hold, therefore, that the District Court did not err in concluding that Pendergrass’ escape sentence did not merge with the other sentences he was serving.

Affirmed.

JUSTICES HUNT, NELSON, TRIEWEILER and LEAPHART concur.


text:
    STATE OF MONTANA, Plaintiff, vs. Joseph A. Valentine, Defendant.
    NO. 10053
    DECISION
   On July 8, 1996, the Court found the defendant in violation of the conditions of his suspended sentence and it is the judgment of the Court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and he is hereby sentenced to a term of seventeen (17) years in the Montana State Prison. It is the recommendation of the Court that the defendant shall complete both phases of the sexual offender treatment program at the Montana State Prison prior to becoming eligible for parole. The defendant shall receive credit from May 13, 1996, through date of sentencing, July 8, 1996, for fifty-seven (57) days jail time which he has previously served.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

DATED this 2nd day of December, 1996.

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Joseph A. Valentine for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Michael S. Vinion, Defendant.
    NO. 10318
    DECISION
   On August 6, 1996, the Court found the defendant in violation of the conditions of his suspended sentence and it is the judgment of the Court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and he is hereby committed to the Department of Corrections for a term of ten (10) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the recommendation of the Court that the defendant be considered for placement in the pre-release center or the Swan River Correctional Training Program. It is further ordered that the defendant shall register as a sexual offender, pursuant to Section 46-23-504,46-23-505, and 46-23-506, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for the remainder of his lifetime following his release from custody. The defendant shall further notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if he should change his address during this registration period. Defendant shall receive credit for street time while on probation and shall receive credit for time served in the Missoula County Jail from January 20, 1995, through February 14, 1995; and from May 15, 1996, through date of sentencing, August 6, 1996, for one hundred ten (110) days.

On November 14,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se. The state was represented by Deputy County Attorney Robert Zimmerman of Missoula.

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

DATED this 2nd day of December, 1996.

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Michael S. Vinion for representing himself in this matter and also Deputy County Attorney Robert Zimmerman.