author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. VALENTINE DEAVILA, JR., Defendant and Appellant.
    No. 97-264.
    Submitted on Briefs November 13, 1997.
    Decided December 9, 1997.
    54 St.Rep. 1300. 949 P.2d 1185.
    285 Mont. 530.

      For Appellant; James L. Vogel, Hardin.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General, Helena; Christine A. Cooke, County Attorney; Curtis Bevolden, Deputy County Attorney, Hardin.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Valentine Deavila, Jr., appeals from the order of the Thirteenth Judicial District Court, Big Horn County, denying his motion to dismiss for lack of speedy trial. We affirm.

Deavila raises the following issue on appeal:

Did the District Court err when it denied Deavila’s motion to dismiss for lack of speedy trial?

BACKGROUND

On December 7, 1995, Deavila was arrested and subsequently charged by information filed on December 12, 1995, with criminal endangerment and solicitation to commit robbery. After being incarcerated for thirteen days, Deavila was released on a property bond. The District Court initially set trial for March 26, 1996, but due to other scheduled cases, trial did not occur that day and was reset for June 17,1996. Again, because of a crowded court docket, the June 17 trial was postponed. The court next set trial for October 15, 1996.

On September 20, 1996, Deavila moved to dismiss the charges for lack of speedy trial. He filed an affidavit in support of his motion on October 10, 1996. Following a hearing in which Deavila and his wife Ronette testified, the District Court issued oral findings and conclusions denying Deavila’s motion to dismiss.

On October 15, 1996, Deavila entered into a plea bargain with the State wherein he agreed to plead guilty to criminal endangerment while reserving his right to appeal the denial of his motion to dismiss. In return, the State dismissed the solicitation charge. The District Court accepted the plea bargain and sentenced Deavila to five years, with all time suspended.

DISCUSSION

Did the District Court err when it denied Deavila’s motion to dismiss for lack of speedy trial?

A speedy trial claim is a question of constitutional law, and we review questions of law de novo to determine whether the court’s interpretation of the law is correct. State v. Small (1996), 279 Mont. 113, 116, 926 P.2d 1376, 1378.

The Sixth Amendment to the United States Constitution and Article II, Section 24, of the Montana Constitution guarantee a criminal defendant the right to a speedy trial. To determine whether a defendant’s right to a speedy trial has been violated, this Court has adopted the four-part test set forth in Barker v. Wingo (1972), 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117. See State ex rel. Briceno v. Dist. Ct. of 13th Jud. Dist. (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64.

The Barker test centers on four factors: the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defense. State v. Collier (1996), 277 Mont. 46, 54, 919 P.2d 376, 381-82. All four factors are weighed by considering the facts and circumstances of each case; no one factor is determinative. Collier, 919 P.2d at 382.

A defendant’s right to a speedy trial attaches either at the time the defendant is arrested, at the time of the filing of the complaint or information, or at the time of indictment. State v. Larson (1981), 191 Mont. 257, 261-62, 623 P.2d 954, 957-58. A delay of over 200 days is presumptively prejudicial and will usually trigger further analysis of the remaining speedy trial factors. Collier, 919 P.2d at 382. If a delay is presumptively prejudicial, the burden shifts to the State to provide a reasonable explanation for the delay and to show that the defendant was not prejudiced by the delay. Collier, 919 P.2d at 382. In the instant case, the 313-day delay between Deavila’s December 7, 1995, arrest and scheduled October 15, 1996, trial date is sufficient, as the State concedes, to require consideration of the remaining Barker factors.

The second factor, reason for the delay, requires this Court to allocate portions of the overall delay to the party responsible for causing it. Collier, 919 P.2d at 382. Here, the District Court attributed the delay to the State as institutional due to calendaring problems of the court. Institutional delay is most often caused by crowded court dockets and the corresponding difficulties in setting trial dates. Small, 926 P.2d at 1379. Although institutional delay is charged against the State, it weighs less heavily than intentional delay. State v. Williams-Rusch (1996), 279 Mont. 437, 450, 928 P.2d 169, 177.

In this case, while the entire delay is chargeable to the State, the State has provided a reasonable explanation for the delay by establishing that it was institutional, not intentional. See State v. Tweedy (1996), 277 Mont. 313, 321, 922 P.2d 1134, 1138. We conclude the reason for the delay does not weigh heavily against the State.

The third Barker factor requires a defendant to timely assert his right to a speedy trial. State v. Matthews (1995), 271 Mont. 24, 30, 894 P.2d 285, 288. If a defendant moves to dismiss before trial, the defendant has fulfilled the requirement of asserting his constitutional right to a speedy trial. Tweedy, 922 P.2d at 1139.

Deavila moved to dismiss on September 20, 1996, twenty-five days before the scheduled trial. His motion was timely filed. However, a defendant’s technical compliance with the assertion of his speedy trial right does not end the discussion of the third Barker factor. The Barker test requires a balancing of the speedy trial factors in light of the surrounding facts and circumstances. Williams-Rusch, 928 P.2d at 176.

Deavila could have objected shortly after June 17, 1996, when his trial was rescheduled for a second time. By then, speedy trial implications would have arisen because nearly 200 days had elapsed since Deavila’s arrest on December 7, 1995. This factor is not determinative, however, because Deavila’s motion was technically timely, and it is necessary to complete the balancing process by considering the final Barker factor.

The fourth Barker factor, prejudice to the defendant, is analyzed by assessing three interests which the speedy trial right was designed to protect: preventing oppressive pretrial incarceration; minimizing the defendant’s anxiety and concern; and avoiding impairment of the defense. The final of these factors is the most critical. Matthews, 894 P.2d at 288. Except for thirteen days after his arrest, Deavila was released on bond. We conclude that Deavila was not subjected to oppressive or prejudicial pretrial incarceration.

Deavila claims prejudice because he lost his car which was being held by the Big Horn County Sheriff’s Office. He also claims prejudice because the Montana Department of Family Services (DFS) denied him increased visitation of his two minor children and instituted proceedings to terminate his parental rights. Deavila argues he was denied employment because of the pending charges. Finally, he asserts that he suffered substantial stress.

The evidence presented before the District Court does not support Deavila’s claims. According to Ronette, the Sheriff’s Office notified her that she could pick up Deavila’s car. Nobody claimed the vehicle, and it was sold. Deavila’s car was not lost due to delay. DFS removed the Deavilas’ children from their custody in August 1995, four months before the State charged Deavila with criminal endangerment and solicitation. The DFS actions occurred for reasons unrelated to the charges in this case. Likewise, Deavila has made no claim of lost employment opportunities between July 1996 and his scheduled trial date. We are unpersuaded that trial delay resulted in a loss of Deavila’s employment opportunities.

We have recognized that a certain amount of anxiety and concern is inherent in being charged with a criminal offense. State v. Weeks (1995), 270 Mont. 63, 73, 891 P.2d 477, 483. We have also indicated that the anxiety and concern to be considered under the Barker test is that which was “aggravated as a result of the delay.” Williams-Rusch, 928 P.2d at 178. “[S]ince it is nearly impossible for the State to prove that anxiety and concern do not exist, the State’s burden to show a lack of anxiety becomes considerably lighter in the absence of more than marginal evidence of anxiety.” Williams-Rusch, 928 P.2d at 178. The evidence does not support Deavila’s claims that he suffered excessive anxiety and concern as the result of pretrial delay.

Finally, we consider the most critical of the prejudice-related interests the speedy trial right was designed to protect: whether Deavila’s defense was impaired by the delay. See Matthews, 894 P.2d at 288. Once the delay has been determined to be presumptively prejudicial, the State has the burden of rebutting the presumption of prejudice. However, contrary to Deavila’s argument that the State must present evidence to rebut the presumption of prejudice, this does not mean “the State has the burden of coming forward first.” State v. Keating (1997), [285 Mont. 463], 949 P.2d 251. “[A] defendant must ordinarily come forward with some evidence that the defense was impaired — that is, prejudiced — as a result of the delay.” Keating, 949 P.2d at 259. Therefore, we consider the evidence Deavila presented in support of his claim that his defense was impaired by the pretrial delay.

Deavila claims the delay prevented him from finding several witnesses who could have testified on his behalf. Deavila’s counsel admitted he did not attempt to subpoena or interview the witnesses before the previously scheduled March and June trials. Absent such an attempt, we cannot agree that the additional delay between June and October resulted in an impaired defense. Based on the evidence presented by Deavila, we conclude that Deavila’s defense was not impaired by the delay.

Although the length of the delay and the reason for the delay weigh against the State, Deavila’s delay in asserting his right demonstrates his lack of an actual interest in moving his case to trial. Deavila did not establish oppressive pretrial incarceration or excessive anxiety and concern resulting from the delay. Nor did he demonstrate actual impairment to his defense.

After considering the four Barker factors, we conclude that Deavila’s right to a speedy trial has not been violated. We hold that the District Court did not err in denying Deavila’s motion to dismiss for lack of a speedy trial.

Affirmed.

JUSTICES GRAY, HUNT, LEAPHART and REGNIER concur.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER JUSTICE NELSON

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, Appellant, and Cross-Respondent, v. WILLIAM STEPHEN STRIZICH, Defendant, Respondent, and Cross-Appellant.
    No. 96-604.
    Submitted on Briefs May 8, 1997.
    Decided November 25, 1997.
    54 St.Rep. 1241.
    286 Mont. 1.
    952 P.2d 1365.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General; Micheál S. Wellenstein, Assistant Attorney General; Helena; David Gliko, Great Falls City Attorney; Great Falls.
    For Respondent: Michael W. Cotter and Patricia O’Brien Cotter; Cotter & Cotter, PC.; Great Falls; Thomas E. Boland, Attorney at Law; Great Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The defendant, William Strizich, was charged by complaint filed in the City Court of Great Falls with a first offense of driving under the influence of alcohol in violation of § 61-8-401(1)(a), MCA. He pled not guilty to the charge against him and his case was scheduled for trial. Prior to trial in the City Court, the State moved in limine for an order to determine the admissibility of specified evidence. When the City Court held the evidence inadmissible, the State appealed to the District Court for a trial de novo. Prior to trial in the District Court, the State made the same pretrial motions and the District Court also excluded the proffered evidence. The State appeals the District Court’s pretrial order excluding .evidence of statements made by Strizich to the investigating officer. Strizich cross-appeals from the District Court’s denial of his motion to dismiss for failure to provide him with a timely trial in compliance with § 46-13-401(2), MCA. We reverse the District Court’s denial of Strizich’s motion to dismiss and, therefore, decline to discuss the issue raised by the State on appeal.

We limit our consideration in this matter to the following issue:

Did the District Court err when it denied the defendant’s motion to dismiss based on the State’s failure to comply with § 46-13-401(2), MCA, which required trial of the charges against the defendant within six months from the date that he entered his plea?

PROCEDURAL HISTORY

On November 4, 1995, the defendant, William Strizich, was stopped, arrested, and issued a notice to appear and complaint for driving under the influence of alcohol in violation of § 61-8-401(l)(a), MCA. He appeared in the City Court of Great Falls on November 6, 1995, and pled not guilty to that charge.

Strizich’s case was set for trial in the City Court on February 29, 1996. However, two weeks prior to trial, the State moved for a continuance of the trial based on the unavailability of one of its witnesses. The trial was then continued to May 2, 1996.

On April 11,1996, the State filed several motions in limine. In one of those motions, the State asked the City Judge to determine prior to trial that statements made by Strizich after he was stopped on the night of his arrest were admissible as evidence. In a second motion, the State asked the City Judge to determine prior to trial whether results from a preliminary breath test (PBT), sometimes referred to in the record as a preliminary alcohol screening test (PAST), are admissible at trial. A PBT was administered to Strizich by the investigating officer, Christopher Hickman, by use of a portable device known as an Aleo-Sensor III at the scene of his arrest on November 4.

On April 23,1996, the City Judge, Nancy Luth, held that pursuant to § 61-8-409(2), MCA, read in the context of Title 61, Chapter 8, part 4, the results of a PBT are intended to assist in the determination of probable cause only and not to be admitted “as substantive evidence in the State’s case in chief.” She therefore denied the State’s motion to allow admission of these results as evidence. She issued no order regarding the State’s other motion in limine because on April 24, 1996, the State filed a notice of appeal to the District Court of the Eighth Judicial District in Cascade County from the City Court’s order denying its motion to admit evidence of PBT results. In its notice of appeal, the State referred to Judge Luth’s order as an order “suppressing evidence” and based its appeal on §§ 46-17-311 and 46-20-103(2)(e), MCA.

On May 1, 1996, the State filed the same motions in limine in the District Court that it had filed in City Court. On May 10, Strizich moved the District Court to dismiss the charges against him pursuant to § 46-13-401(2), MCA, for failure of the State to try him within six months from the date on which he entered his plea. The uncontroverted evidence in support of his motion was that he had done nothing to postpone his date of trial and that the State had no good cause for delay beyond six months, other than its interest in appealing the City Court’s denial of its motion in limine.

In response to Strizich’s motion to dismiss, the State argued that pursuant to §§ 46-17-311 and 46-20-103(2)(e), MCA, it had a right to appeal to the district court from a city court order “suppressing evidence”; that the City Court’s order denying its motion in limine regarding PBT evidence was, in effect, an order suppressing evidence; and that, pursuant to this Court’s decision in State v. Bullock (1995), 272 Mont. 361, 901 P.2d 61, since city court jurisdiction had been exhausted within six months, § 46-13-401(2), MCA, had been satisfied.

On July 3, 1996, the District Court denied Strizich’s motion to dismiss. Its order was based on its conclusion that the City Court’s order denying the State’s motion in limine was, in effect, an order to “suppress evidence” and, therefore, pursuant to our decision in Bullock, that § 46-13-401(2), MCA, had been complied with.

On August 29, 1996, the District Court denied the State’s motions in limine regarding Strizich’s statements and evidence of PBT results. It held that Strizich’s statements were made after his arrest without the benefit of Miranda advice; it also held that PBT results, when conducted in the field, were inherently unreliable and were intended neither by statute nor administrative rule for admission as substantive evidence in the State’s case.

On September 3,1996, the State filed a notice of appeal from both the District Court’s order regarding Strizich’s admissions and the order regarding PBT evidence. However, the State has since abandoned its appeal from the District Court’s exclusion of PBT evidence.

On September 6, 1996, Strizich filed a cross-appeal from the District Court’s order dated July 3,1996, which denied his motion to dismiss for failure to timely try him in accordance with § 46-13-401(2), MCA.

Because our disposition is based upon our conclusions regarding Strizich’s right to a timely trial pursuant to statute, we need not discuss the remaining issue raised by the State’s appeal. We confine our discussion to the following issue:

Did the District Court err when it denied the defendant’s motion to dismiss based on the State’s failure to comply with § 46-13-401(2), MCA, which required trial of the charges against the defendant within six months from the date that he entered his plea?

DISCUSSION

The district court’s denial of a motion to dismiss is based on a legal conclusion which we review to determine if it was correct. State v. Bullock (1995), 272 Mont. 361, 368, 901 P.2d 61, 66.

Our analysis of the District Court’s decision to deny Strizich’s motion to dismiss must necessarily begin with § 46-13-401(2), MCA, which provides that:

After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed, with prejudice, if a defendant whose trial has not been postponed upon the defendant’s motion is not brought to trial within 6 months.

In this case, Strizich’s trial date in City Court was not postponed by any motion made by Strizich, and the State admitted, at hearings before the District Court, that there was no good cause for delay beyond the May 2,1996, trial date, other than its desire to appeal the City Court’s decision that PBT results were not admissible evidence.

The District Court based its decision to deny Strizich’s motion to dismiss on our decision in Bullock. In that case, the defendants were charged in justice court with unlawfully killing and possessing a game animal. However, the justice court suppressed all of the State’s evidence pertaining to one defendant on constitutional grounds, and dismissed the State’s charges against the other defendant. The State then appealed to the district court for a trial de novo pursuant to §§ 46-17-311 and 46-20-103, MCA. When the defendants had not been tried in district court within six months from the date on which they entered their plea, they moved to dismiss pursuant to § 46-13-401(2), MCA. That motion was denied. On appeal from that denial, this Court pointed out that in State v. Mantz (1994), 269 Mont. 135, 887 P.2d 251, we held that the statute requiring misdemeanors be tried within six months is inapplicable to those situations “in which the case comes from justice court to a trial de novo in district court.” Mantz, 269 Mont. at 138, 887 P.2d at 253. In Bullock, we stated that:

While this Court was not unanimous in its conclusion that § 46-13-401(2), MCA, does not apply to misdemeanor charges appealed to the district court (see Mantz, Justices Trieweiler and Hunt dissenting), all members do concur that for purposes of applying that rule there is no basis for distinguishing between cases appealed after trial in the justice court and cases appealed from disposition in some other fashion in justice court. So long as the justice court jurisdiction is exhausted within six months by some action which authorizes appeal de novo to the district court, § 46-13-401(2), MCA, has been satisfied.

Bullock, 272 Mont. at 369, 901 P.2d at 66-67 (emphasis added).

We noted that § 46-20-103, MCA, authorizes the State to appeal from justice court to district court any order or judgment which has the effect of (a) dismissing a case, or (e) suppressing evidence. Bullock, 272 Mont. at 369, 901 P.2d at 66. For these reasons, we concluded that justice court jurisdiction had been exhausted in that case within six months by some action which authorized appeal de novo to the district court and, therefore, that the motion to dismiss on the basis of § 46-13-401(2), MCA, had been properly denied. Bullock, 272 Mont. at 369, 901 P.2d at 67.

The issue in this case is, then, whether City Court jurisdiction was exhausted within six months “by some action which authorizes appeal de novo to the district court.” Bullock, 272 Mont. at 369, 901 P.2d at 66-67. The State contends that that requirement was satisfied when the City Court denied its motion in limine to admit evidence of PBT results and, in effect, “suppressed evidence.” The defendant contends that the term “suppressing evidence” is a term of art which does not apply to the exclusion of evidence based on the rules of evidence and, therefore, that there was no action by the City Court which authorized appeal de novo to the District Court.

The State’s position finds support in several prior decisions of this Court. We conclude, however, that our own statutory framework and the better-reasoned authority from other jurisdictions support the position of the defendant.

In State v. Carney (1986), 219 Mont. 412, 714 P.2d 532, the defendant was being tried for driving under the influence of alcohol when, during the second day of trial, the district court sustained the defendant’s objection to blood samples because the State had failed to establish a proper chain of custody. The State advised the district court of its desire to appeal that issue; the jury was dismissed; and a notice of appeal was filed. We held that based on double jeopardy considerations it was necessary to distinguish between appeals prior to the commencement of trial and appeals taken during the course of trial for purposes of applying § 46-20-103, MCA. We then interpreted subsection (e) as follows:

We conclude that the order sustaining the objection to the admission of evidence did not constitute “suppressing evidence” as defined in Section 46-20-103, MCA. We hold that the District Court order ruling the blood samples inadmissible for failure to lay a proper foundation was not an appealable order.

Carney, 219 Mont. at 418, 714 P.2d at 536.

We then held that because there was no “manifest necessity” for the appeal, further trial of the defendant would constitute double jeopardy. Carney, 219 Mont. at 418, 714 P.2d at 536.

We next discussed the term “suppressing evidence” in State v. T.W. (1986), 220 Mont. 280, 715 P.2d 428. In that case, the State filed an interlocutory appeal from a district court order granting the defendant’s motion in limine which precluded the State from using the defendant’s youth court records as evidence and from offering evidence of prior offenses allegedly committed by the defendant while he was a minor. After asking the parties in that case to brief the issue of whether a pretrial order denying the State’s motion in limine was an appealable order, as provided for by § 46-20-103, MCA, we held that it was. We distinguished appeals from pretrial rulings from those taken during the course of trial. We held that:

There is an important distinction between interlocutory appeals on pre-trial rulings and those taken in the course of the trial.... No jeopardy attaches here, as the jury had not yet been sworn. Because there is no double jeopardy problem in this case the ruling is appealable.

T.W., 220 Mont. at 287, 715 P.2d at 432 (citation omitted).

We followed T.W. in State v. Yarns (1992), 252 Mont. 45, 826 P.2d 543. Although two members, in dissent, cautioned that

there is a significant difference between the “suppression of evidence” and an evidentiary ruling which excludes material or information which is offered but is neither relevant to nor probative of the issues in the case.
The effect of the majority’s decision is to provide the State with the option of divesting justice courts of jurisdiction to try misdemeanor cases whenever the State chooses to do so.

Yarns, 252 Mont. at 53-55, 826 P.2d at 548-49 (Trieweiler, J., and Hunt, J., dissenting).

Since our decision in Yarns, several other jurisdictions have also considered this same issue. In State v. Dwyer (Mo. Ct. App. 1992), 847 S.W.2d 102, the state appealed from the trial court’s order in limine excluding prior acts of the defendant. Missouri, like Montana, permits the state by statute to appeal “from any order or judgment the substantive effect of which results in ... suppressing evidence.” Mo. Rev. Stat. § 547.200.1(2) (1986). However, the Court of Appeals for the Western District of Missouri held that:

The in limine order which is sought to be appealed here is not an order “suppressing” evidence or having that substantial effect. Section 547.200.1 was not intended to allow the appeal of this order in limine. State v. Holzschuh, 670 S.W.2d 184, 185 (Mo.App.1984).
The “suppression” of evidence is not the same thing as the exclusion of evidence on the basis of some rule of evidence. Suppression is a term used for evidence which is not objectionable as violating any rule of evidence, but which has been illegally obtained. Fed.R.Crim.R 12(b), Section 542.296, RSMo 1986, Black’s Law Dictionary (“motion to suppress,” “suppression of evidence”) 914, 1291 (5th Ed.1979). Evidence may be highly relevant and admissible as against all objections based upon the rules of evidence (i.e., hearsay, best evidence, parol evidence, relevancy, privileged communications, and the like), but yet may be suppressed because it was illegally obtained. Id.
The position advanced by the State would allow the State to appeal any in limine order of the trial court which ruled inadmissible any evidence which the State proposed to offer. The State could thus by a single appeal, or by repeated appeals, secure appellate rulings upon the admissibility of all its evidence. The statute has no such meaning. It is intended to apply only to those orders “suppressing” evidence; it should not be broadened by intendment to cover in limine orders. State v. Holzschuh, 670 S.W.2d 184 (Mo.App.1984).

Dwyer, 847 S.W.2d at 103-04.

In State v. Shade (Nev. 1994), 867 P.2d 393, the state appealed from the district court’s order in limine excluding evidence of the defendant’s prior bad act on the basis that the evidence was irrelevant. The trial court’s order was not based on any allegation that the evidence was illegally obtained. The state’s appeal was based on a Nevada statute which permitted the state to appeal from district court orders which suppressed evidence. The Nevada Supreme Court noted that while there was no Nevada statute defining “motions to suppress,” “suppression” had been defined by numerous courts. It cited decisions from appellate courts in Illinois, Colorado, Georgia, Missouri, North Dakota, and Virginia for the principle that “suppression” of evidence relates to evidence which would be otherwise admissible but was illegally obtained, as opposed to exclusion of evidence which is inadmissible based on the rules of evidence. Shade, 867 P.2d at 396.

The court in Shade held that:

“Motion to suppress” is a term of art which is defined as a request for the exclusion of evidence premised upon an allegation that the evidence was illegally obtained. Black’s Law Dictionary 914 (5th ed. 1979) defines the term as follows:
Device used to eliminate from the trial of a criminal case evidence which has been secured illegally, generally in violation of the Fourth Amendment (search and seizure), the Fifth Amendment (privilege against self incrimination), or the Sixth Amendment (right to assistance of counsel, right of confrontation, etc.), of [the] U.S. Constitution.
In this case, the district court excluded evidence for evidentiary reasons. The district court did not suppress evidence. The right to appeal is statutory. Where no statute or rule provides for an appeal, no right to appeal exists. There is no statute or rule which provides for an appeal from an order of the district court granting a motion in limine to exclude evidence.

Shade, 867 P.2d at 396 (citation omitted).

In State v. Howard (Tex. Ct. App. 1995), 908 S.W.2d 602, the state appealed from an interlocutory trial court order which had been entitled “Order Suppressing Evidence” but which, in fact, excluded evidence of statements by co-defendants which implicated the defendant. The statements were not excluded based on the Sixth Amendment grounds claimed by the defendant, but instead on Texas Rules of Criminal Evidence. The Court of Appeals found that distinction significant. It held that while the Texas Code of Criminal Procedure allowed the state to appeal from orders which grant motions to suppress, “the legislature did not intend to create an avenue by which the state could secure interlocutory review of general evidentiary rulings.” Howard, 908 S.W.2d at 604. The court held that:

[T]he phrases “motion to suppress” or “suppress evidence” have developed unique meanings in our criminal jurisprudence. Indeed, they are terms of art which contemplate more than the simple exclusion of evidence pursuant to the general rules of evidence. State v. Kaiser, 822 S.W.2d at 700. As discussed in Kaiser and in decisions issued by neighboring jurisdictions, a motion to suppress presupposes that the evidence was illegally obtained. We opt, as did the Kaiser court, to construe the wording of article 44.01(a)(5) to comport with, not contradict, its technical meaning.
Additionally, in our system of jurisprudence, we note that it is not the function of appellate courts to sit in “instant replay” of the general pretrial decisions made by a trial judge. He is entitled to control his dockets and dispense justice without undue interference from appellate bodies.

Howard, 908 S.W.2d at 604-05 (citations omitted).

For those reasons, the Texas Court held that it was without jurisdiction to hear the state’s appeal, and it was dismissed.

These decisions are consistent with the manner in which “suppression of evidence” is discussed in our statutory framework. Both of this State’s statutory references to the suppression of evidence relate to evidence which would otherwise be admissible had it not been illegally obtained. Section 46-13-301, MCA, permits the suppression of confessions which were made involuntarily. Section 46-13-302, MCA, permits the suppression of evidence gathered as the result of an unlawful search or seizure.

To hold that this Court has jurisdiction to consider appeals from orders which simply exclude evidence based on the rules of evidence would require that this Court micro-manage the discretionary functions of trial courts. Just as importantly, to hold that district courts have jurisdiction to entertain appeals from justice court or city court based upon pretrial determinations of the admissibility of all evidence, would allow the State to avoid justice court or city court jurisdiction altogether anytime it decides it would be tactically advantageous to do so. That certainly was not the intent of the Legislature when it authorized appeals based on the “suppression of evidence.”

We therefore conclude that orders “suppressing evidence” are orders which exclude evidence on the grounds that the evidence has been illegally obtained. They do not include pretrial orders which exclude evidence based on Rules of Evidence, such as relevancy, probative value, or statutory inadmissibility. To the extent that our decisions in State v. T.W. (1986), 220 Mont. 280, 715 P.2d 428, and State v. Yarns (1992), 252 Mont. 45, 826 P.2d 543, are inconsistent with this holding, they are reversed.

We further conclude that the City Court’s order dated April 23, 1996, which excluded PBT results, and which was the basis of the State’s appeal to the District Court, was not an order “suppressing evidence.” It was, in effect, an order determining that PBT results are not substantive evidence at all. The City Court’s and the District Court’s decisions in that regard were correctly based on the statutory scheme pertaining to PBT’s, the legislative history of those statutes, and the administrative rules enacted to enforce those statutes.

Title 61, Chapter 8, part 4, Montana Code Annotated, relating to the offense of driving under the influence of alcohol, provides for two types of tests to measure the presence of alcohol in a person’s body after being stopped based on a suspicion of driving under the influence of alcohol. Section 61-8-402, MCA, provides for tests of a person’s blood, breath, or urine for the purpose of measuring the presence of alcohol after that person has been arrested. Section 61-8-404, MCA, provides that test results obtained pursuant to the post-arrest test are admissible as evidence at a DUI trial. That statute specifically refers to the foundation for admission of evidence obtained pursuant to § 61-8-402, MCA.

Section 61-8-409, MCA, on the other hand, provides for a preliminary alcohol screening test (previously referred to as a PBT) of a person’s breath for the purpose of “estimating the person’s alcohol concentration, upon the request of a peace officer who has a particularized suspicion that the person was driving or in actual physical control of a vehicle ... while under the influence of alcohol.” (Emphasis added.) In other words, the PBT is intended for use prior to an actual arrest for the limited purpose of “estimating” the alcohol concentration. Subparagraph (2) specifically provides that: “The results of a screening test may be used for determining whether probable cause exists to believe a person has violated 61-8-401, 61-8-406, or 61-8-410.” Section 61-8-409(2), MCA (1995). There is no suggestion in § 61-8-409, MCA, that the results of a PBT are admissible as substantive evidence to establish a person’s guilt. Neither did those who spoke in support of Senate Bill 316 in the 1995 Legislative Session suggest that the new statute providing for preliminary blood testing would produce substantive evidence of a person’s guilt. It was only referred to by the statute’s proponents as assistance to an investigating officer in the determination of whether to proceed to an arrest. Hearings on S.B. 316 Before the Montana Senate 1995 Legislature Judiciary Comm, at 5-6, 54th Legislature Regular Session (1995) (describing testimony of Peter Funk, former Assistant Attorney General, involved in drafting Senate Bill 316).

Finally, those rules adopted by the Forensic Science Division of the Department of Justice in 1995 referred to preliminary breath testing devices as “associated equipment,” as opposed to a “breath analysis instrument,” and define it as follows:

[A]ny approved device which is designed to detect and verify the presence of alcohol or provide an estimated value of alcohol concentration. Analyses from this type of device, e.g., a preliminary breath tester, are to be considered as probable cause evidence only.

Rule 23.4.201(7)(b), ARM (emphasis added).

There are reasons apparent from the District Court record for the legislative decision to allow use of PBT results for probable cause purposes only. Norm Fort, a criminalist employed by Ventura County in California, who has conducted tests of the Aleo-Sensor III, acknowledged that while the instrument is reliable during controlled studies, there are variations when used under field conditions based on physiological, instrumental, and operator-induced factors.

Philip Lively, Director of the Breath Analysis Program at the Division of Forensic Science at the Montana Department of Justice, testified similarly. He gave the following answer to the following question:

Q. The point is in a field setting there are a great many variances, depending upon not only environmental conditions but on the testing procedures and accuracies of the officer; isn’t that true?
A. That is true.

For these reasons, we conclude that results of a preliminary breath test (statutorily identified as preliminary alcohol screening test) are not substantive evidence of the amount of alcohol present in a person’s body, but instead are an “estimate” of alcohol concentration for the purpose of establishing probable cause to believe that a person is under the influence of alcohol prior to making an arrest for violation of §§ 61-8-401, -405, or -410, MCA. For this reason, we conclude that the City Court’s order excluding PBT results at the City Court trial of the defendant, William Strizich, was not an order to “suppress evidence.”

Because the City Court did not enter an order to “suppress evidence” in this matter, there was no statutory basis pursuant to § 46-20-103(2)(e), MCA, for appeal to the District Court. Therefore, we conclude that City Court jurisdiction was not exhausted within six months by some action which authorized appeal to the District Court, and that § 46-13-401(2), MCA, has not been satisfied.

For these reasons, we conclude that in the language of § 46-13-401(2), MCA, the prosecution of the defendant “shall... be dismissed with prejudice.”

Because of Strizich’s official position, this case has received more public attention than is normally given to a first charge of driving under the influence of alcohol. Most members of the public, and presumably the defendant, would prefer that the charge be resolved on its merits. However, the law is clear. Absent good cause or efforts by the defendant to delay trial, a misdemeanor charge must be brought to trial within six months from the entry of the defendant’s plea, or it must be dismissed with prejudice. The defendant in this case is as entitled to the protection of that law as if he had no official position.

The State had numerous opportunities to comply with the controlling statute. Strizich denied his guilt on November 6, 1995, and trial was immediately scheduled for February 29, 1996. The State sought a continuance on the basis that its witness, a full-time employee of the State, could not be present for trial on that date. Strizich objected to the continuance but it was granted. A second trial was scheduled for May 2, 1996 — still within the time allowed. The State, however, receiving no positive response to its efforts to disqualify the City Judge, divested the City Court of an opportunity to try the case on May 2 by appealing to the District Court from the City Court’s denial of its motion to admit evidence which was clearly inadmissible. The State, in other words, made it impossible for the City Court to comply with the law which protects misdemeanor defendants from untimely trials and, due to the State’s delay, the charges must be dismissed.

We reverse the order of the District Court which denied the defendant’s motion to dismiss and remand to the District Court for entry of judgment consistent with this opinion.

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

JUSTICE NELSON

specially concurs.

I concur in our opinion. It is disheartening, however, that we have found it necessary to include at the end of our legal discussion a statement of the obvious — that just because Bill Strizich is a public figure, he is entitled to rely on the protection of the law the same as any other citizen. Even that will likely not forestall the criticism from those who view our court system as being preoccupied with legal niceties to the exclusion of what they believe is the only proper role of the judiciary — i.e. “to take, a bite outt’a crime” and “to lock ‘em up and throw away the key.” Nonetheless, before the faultfinders swell up in righteous indignation, they at least should consider certain aspects of this case that are not brought out in the opinion proper, since it was unnecessary to do so in our discussion of the dispositive legal issue.

One cannot review the entire record in this case without coming away with a feeling of distaste. In ruling on various of the City’s pretrial motions, the District Judge entered a number of findings of fact based on evidence taken from the parties and after having heard oral argument. While these do not do credit to the manifest frustration of the District Judge with the City as revealed in the transcripts, even these paint a less than complimentary picture of the police and the prosecution.

As to the initial investigation and stop of Mr. Strizich, Judge McKittrick found, in pertinent part, as follows:

1. On November 4,1995, William Strizich was arrested by Great Falls Police Officer Christopher Hickman and cited with violation of 61-8-401, M.C.A., for operating a motor vehicle while under the influence of alcohol.
2. Approximately 20 minutes before he arrested Strizich, Hickman observed Strizich standing by a roadway in a Great Falls residential area with some other individuals. Hickman spoke with Strizich, and Strizich advised him that everything was fine, and that they were just trying to get a friend of Strizich’s indoors. Hickman stated that he could understand Strizich clearly when he spoke with him.
3. After Officer Hickman left Strizich by the side of the roadway, he drove to a location two blocks away, and ran the license plate of the vehicle near which Strizich had been standing. He learned that the vehicle was registered to U.S. Marshal William Strizich and his wife.
4. Officer Hickman admitted “laying in wait” for Strizich, testifying that he waited in his patrol car with the intent that if Strizich got into his vehicle and drove it, he would arrest him.
5. While he waited for Strizich to operate his vehicle, Hickman called Great Falls Police Sergeant Greg Church on his cellular phone and asked him to come to the location where Hickman was parked waiting for Strizich. Hickman told Church what route to take and to keep his headlights off so as not to alert Strizich. When Church arrived, Hickman told Church he had “a big fish DUI.”
6. After waiting for 15 to 20 minutes, Hickman observed Strizich operating his vehicle. He followed the Strizich vehicle for approximately 7 blocks, before stopping him and eventually arresting him for DUI.
7. Hickman testified that during the entire period of time that he followed Strizich’s vehicle — for approximately 7 blocks, through two traffic controlled intersections, and after two left-hand turns — Strizich made no unsafe driving maneuver.
8. Hickman testified that Strizich did not weave, did not exceed the speed limit, did not cross the center line, did not make excessively wide turns, did not brake suddenly, did not brake at green lights, did not fail to stop at a stop sign, and did not fail to yield the right of way. Hickman has been trained in night-time DUI detection, and these are the cues he looks for in determining whether a person is driving under the influence of alcohol.
9. Hickman stopped Strizich in an alley, had a conversation with him, asked him to perform field maneuvers, and asked him to take a Preliminary Breath Test (PBT). Strizich complied with these requests.

In denying the City’s motion to preclude the defense from presenting evidence to the jury of prior “bad acts” of the police, Judge McKittrick concluded that such evidence was relevant to the issue of the police officer’s credibility The court ruled:

D. In light of the admission that Officer Hickman was “laying in wait” for Strizich, and referred to him as a “big fish DUI” before the arrest was made, the jury could infer that Hickman had a bias against Strizich prior to the arrest, and that he now has an interest in the outcome of the litigation. Under these circumstances, evidence of Hickman’s previous confrontations with the public and evidence of previous violations by Hickman of the civil rights of members of the public t] are and shall be admissible into evidence in this case, providing the Defendant can show relevancy and establishes a proper foundation.

So much for the “particularized suspicion” which was presumably the basis on which Mr. Strizich was initially stopped.

As for the attempt by the prosecution to place before the jury evidence of Mr. Strizich’s PBT results, the court’s decision was equally critical. At the outset, it is important to keep in mind that, as our opinion points out, the issue of the admissibility of the PBT results as substantive evidence had been for all practical purposes decided by the legislature and the Forensic Science Division of the Department of Justice against the prosecution long before the City decided to make this an issue in Mr. Strizich’s case. It was the City’s attempt to get this evidence into the trial that delayed the trial date; that necessitated the City hiring an expert criminalist from California; that necessitated filing numerous briefs; that necessitated a hearing in City Court; that, not surprisingly, resulted in the ruling from City Judge Luth holding the evidence to be inadmissible; that enabled the prosecution to appeal the “suppression” of the evidence to the District Court and, thus, get the case away from a judge that the City, three months after the arraignment and three weeks prior to the original date set for trial, had unsuccessfully tried to disqualify; that necessitated further briefing and a hearing in District Court; that, again not surprisingly, precipitated a ruling by the District Judge holding the evidence inadmissible; and that ultimately was the key factor in the City’s losing its entire case on appeal to this Court. In truth, this was a non-issue, unwinnable from the start.

The legislature and Department of Justice had already determined that PBT results were not sufficiently reliable to be considered substantive evidence. This was confirmed by the City’s California expert who, according to Judge McKittrick, acknowledged that the PBT can be influenced by a broad range of factors. According to the court, the City, in fact, conceded that “there is a whole laundry list” of things that could go amiss during the field use of a PBT device. The court found that the California expert gave no ultimate opinion on the reliability of the PBT, because the prosecution failed to lay a proper and sufficient foundation for such an opinion. Moreover, another prosecution witness-the very individual who authored the Department of Justice rule referred to in our opinion-testified that, even when properly used and correctly calibrated, a PBT device can have a margin of error of plus or minus 10 percent and that he was aware of no case wherein the results of a PBT had been introduced into evidence for any purpose other than establishing probable cause. Finally, the prosecutor conceded to the District Judge that the City could have gone forward with Mr. Strizich’s trial in City Court on its scheduled date (within the required 6 months) had it not chosen to make an issue out of the admissibility of the PBT evidence — an issue that was virtually dead on arrival to begin with. And, the final irony? This “case-busting” issue that the City pursued through the City Court and the District Court with expert witnesses, was eventually abandoned and was not even appealed to this Court.

So here we are. The case was not resolved on the merits and never will be; a citizen was targeted for and then subjected to a DUI arrest more for who he was than what he did; there has likely been a substantial amount of taxpayer money spent on a prosecution that went absolutely nowhere; instead of the speedy trial he wanted, demanded and was constitutionally entitled to, Mr. Strizich has been twisting in the breeze for over two years through three different courts (at his expense, not the taxpayers, by the way); and this Court has contributed yet another opinion to this State’s criminal jurisprudence. And for what? So the City could catch and fry a Big Fish.

The only good news in this shameful debacle is that when the hand-wringers gather to assess the blame for this one, at least they won’t have to look very far from home.

      . Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

      . According to the District Court, Officer Hickman testified in his deposition that he had been reprimanded 10-20 times, both orally and in writing, for his attitude towared the general public.


text:
    FEBRUARY 1997 CALENDAR
    FROM: The District Court of the 20th Judicial District. County of Lake.
    STATE OF MONTANA, Plaintiff, vs. Phillip James Bartell, Defendant.
    NO. DC 95-57 DECISION
    DATED this 4th day of March, 1997.
   On October 10, 1996, it was ordered that the deferred imposition of sentence heretofore entered on October 11, 1995 for the offenses of Burglary, a Felony, Counts I and III, as specified in MCA 45-6-204(1), and Theft, a Felony, Count II, as specified in MCA 45-6-301(l)(a), is revoked. It is further ordered that the defendant be punished by confinement in the Montana State Prison for a term of ten (10) years on Count I, with five (5) years suspended, for a term of ten (10) years on Count II, with five (5) years suspended, and for a term of ten (10) years on Count III, with five (5) years suspended. The sentence imposed on Count III shall run consecutive to the sentence imposed on Count II. The sentences imposed on Counts II and III shall run consecutive to the sentence imposed on Count I. The defendant shall receive credit for time served at initial sentencing of thirty (30) days. The sentence imposed above shall run concurrently with the sentence imposed in the Missoula County Cause No. 11716, and concurrent to the sentence imposed in Lake County Cause No. DC 96-17. The Court further orders that the suspended portion of the sentence shall be upon the conditions as stated in the October 10, 1996 judgment.

On February 20, 1997, 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 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips

The Sentence Review Board wishes to thank Phillip James Bartell for representing himself in this matter.


text:
    FROM: The District Court of the 20th Judicial District. County of Lake.
    STATE OF MONTANA, Plaintiff, vs. Phillip Bartell, Defendant.
    NO. DC 96-17 DECISION
    DATED this 4th day of March, 1997.
   On October 11, 1996, the Court ordered that the defendant shall be punished by confinement in the Montana State Prison for a term of twenty (20) years on Count I, with ten (10) years suspended, and twenty (20) years on Count III, with ten (10) years suspended. The sentence imposed on Count I shall run consecutive to the sentence imposed on Count III, for a total sentence of forty (40) years, with twenty (20) years suspended. The defendant shall receive credit for time served in the Lake County Jail on these offenses, which as of the date of this Judgment totals two hundred forty-two (242) days. The sentence imposed above shall run concurrently with the sentence imposed in the Missoula County Cause No. 11716, and concurrent to any revocation sentence imposed in Lake County Cause No. DC 95-57. The Court further orders that the suspended portion of the sentence shall be upon conditions as stated in the October 11, 1996 judgment.

On February 20, 1997, 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 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips

The Sentence Review Board wishes to thank Phillip Bartell for representing himself in this matter.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.

      STATE OF MONTANA, Plaintiff, vs. Ernest A. Beavers, Jr., Defendant.
    NO. ADC 95-410 DECISION
    DATED this 4th day of March, 1997.
   On December 16,1996, it was hereby ordered that the defendant, Ernest A. Beavers, Jr., is sentenced for the crime of Burglary, a Felony, to Montana State Penitentiary, Deer Lodge, Montana, for a period of twenty (20) years, to run consecutively with CDC 96-148. The defendant is hereby given credit for time already served in Cause No. CDC 96-148 and Cause No. ADC 95-410, a total of 303 days. The defendant is subject to conditions as stated in the December 16, 1996 judgment.

On February 20, 1997, 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 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips

The Sentence Review Board wishes to thank Ernest A. Beavers for representing himself in this matter.


text:
    FROM: The District Court of the 8th Judicial District. County of Cascade.
    STATE OF MONTANA, Plaintiff, v. Ernest A. Beavers, Jr., Defendant.
    NO. CDC 96-148 DECISION
   On December 16,1996, it was hereby ordered that the defendant, Ernest A. Beavers, Jr., is sentenced for the crime of Count I: Burglary, a Felony, to Montana State Penitentiary, Deer Lodge, Montana, for a period of twenty (20) years. It is further ordered that the defendant, Ernest A. Beavers, Jr., is sentenced for the crime of Count II: Theft, a Felony, to Montana State Penitentiary, Deer Lodge, Montana, for a period of ten (10) years with all time suspended. It is further ordered that the defendant, Ernest A. Beavers, Jr., is sentenced for the crime of Count III: Criminal Mischief, a Felony, to Montana State Penitentiary, Deer Lodge, Montana, for a period of ten (10) years with five (5) years suspended. Said sentences are to run consecutively with one another. The defendant is hereby given credit for time already served in Cause No. CDC 96-148 and Cause No. ADC 95-410, a total of 303 days. The defendant is subject to the conditions as stated in the December 16, 1996 judgment.

DATED this 4th day of March, 1997.

On February 20, 1997, 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 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips

The Sentence Review Board wishes to thank Ernest A. Beavers for representing himself in this matter.


text:
    FROM: The District Court of the 2nd Judicial District. County of Silver Bow.
    STATE OF MONTANA, Plaintiff, vs. Daniel John Billson, Jr., Defendant.
    NO. DC 96-85 DECISION
   On October 10,1996, it was the judgment of this Court that the defendant, Daniel John Billson, Jr. is guilty of the felony offense of Burglary, in violation of Section 45-6-204(1), MCA 1995, as charged in Count I of the information. It is the decision of this Court that the defendant shall be committed to the custody of the Montana Department of Corrections for a term of three (3) years. The Department of Corrections shall determine whether to place defendant in a state correctional facility, a pre-release center or other locally-based program. The Court recommends that the Department of Corrections place defendant in a pre-release center or other locally-based program, rather than the state prison. The Court makes such recommendation in light of Defendant’s age and the recommendation of the probation officer. It is further ordered that the defendant shall be given credit for time already served in the Butte-Silver Bow jail in the amount of 105 days. It is further ordered that should the defendant be granted parole or probation by the Department of Corrections, he shall be subject to the terms and conditions of supervision as stated in the October 10,1996 judgment. It is further ordered that the State’s motion to dismiss the misdemeanor charge set forth in Count II of the Information is granted.

On February 20,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 4th day of March, 1997.

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

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

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

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. William Blue, Defendant.
    NO. 11577 DECISION
    DATED this 4th day of March, 1997.
   On June 10, 1996, the Court found the defendant in violation of the conditions of his suspended sentence for the offense of Third Offense Domestic Abuse, a Felony. It was 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 five (5) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the recommendation of the Court that the defendant be considered for placement in the Pre-Release Center. 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 March 23, 1995, through April 5, 1995; from May 15,1995, through August 11,1995; from March 9,1996, through March 22, 1996; from April 23, 1996, through May 6, 1996; and from May 24, 1996, through date of sentencing, June 10,1996, for one hundred forty-nine (149) days jail time which he has previously served.

On February 20, 1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips


text:
    FROM: The District Court of the 13th Judicial District. County of Carbon.
    STATE OF MONTANA, Plaintiff, vs. Timothy Allen Dickson, Defendant.
    NO. DC 96-15 DECISION
    DATED this 4th day of March, 1997.
   On November 29,1996, it was ordered that the defendant, Timothy Allen Dickson, be and hereby is committed to the Montana State Prison pursuant to 46-18-201(l)(e), Mont. Code Ann., for a term of five (5) years. Defendant shall receive credit, in the amount of 139 days, for time served in the Carbon County Jail. It is further the recommendation of this Court that the defendant not be considered for parole until he has taken advantage of the treatment programs available to him at the Montana State Prison.

On February 20,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips


text:
    FROM: The District Court of the 19th Judicial District. County of Lincoln.
    STATE OF MONTANA, Plaintiff, vs. Timothy J. Eden, Defendant.
    NO. DC 96-12 DECISION
   On November 21, 1996, it was ordered that the defendant, Timothy J. Eden, shall be sentenced to the Department of Corrections, State of Montana, for a period of twenty (20) years, with five (5) years suspended, for the crime of Arson, a felony. The Department of Corrections may place the defendant, Timothy J. Eden, into a community based program, facility or a State correctional institution. If the defendant is released on probation or parole, the defendant shall be subject to conditions set forth by the Department of Corrections as well as terms and conditions as stated in the November 21,1996 judgment. The defendant shall receive credit for eighty-three (83) days time served by reason of prior incarceration.

DATED this 4th day of March, 1997.

On February 20,1997, 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 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips

The Sentence Review Board wishes to thank Timothy Joseph Eden for representing himself in this matter.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Matt Hawkins, Defendant.
    NO. DC 85-117 DECISION
   On November 14, 1996, it was the order of the Court that the defendant be committed to the Department of Corrections for a period of ten (10) years, for appropriate placement by that agency. The Court further orders that five (5) of the years previously imposed shall be suspended. It is further ordered that the defendant shall be deemed ineligible for parole until he has completed the Moral Reconation Treatment program and the Criminal Thinking Errors Program. Though not a limitation upon the defendant’s consideration for parole, during the period of the defendant’s supervision by the Department of Corrections he shall complete all phases of chemical dependency treatment offered by said Department, whether such treatment be obtained at Montana State Prison, Pre-Release, ISP, or in whatever correctional facility or program the defendant may be placed. It is further ordered that during any such time as the defendant may be on parole or probation, he shall comply with each of the conditions as stated in the November 14,1996 judgment. The Court does not grant the defendant credit for time served on probation because of his continued felonious conduct and abuse of drugs after absconding from supervision.

On February 20, 1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

DATED this 4th day of March, 1997.

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

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips


text:
    FROM: The District Court of the 21st Judicial District. County of Ravalli.
    STATE OF MONTANA, Plaintiff, vs. Gerald L. Holmes, Defendant.
    NO. CR 94-25 DECISION
    DATED this 4th day of March, 1997.
   On May 10,1996, it was the sentence and judgment of the Court as follows: 1. That the defendant is guilty of violating the terms and conditions of the sentence heretofore imposed upon him on January 3,1996 (Criminal Possession of Dangerous Drugs with Intent to Sell, a Felony), and the suspended sentence is hereby revoked. 2. The defendant is committed to the Department of Corrections and Human Services for appropriate placement into a community-based program, facility or state correctional institution for a period of ten (10) years. Placement shall be left to the discretion of the Department. The Court hereby recommends the defendant not be considered for parole until he has successfully completed the programs for chemical dependency, criminal thinking errors, and moral recognition training, as available through the facilities at which he is placed during the period of his detention. The defendant shall receive additional credit of 96 days for time served in jail prior to this revocation sentencing.

On February 20, 1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.


text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.

      STATE OF MONTANA, Plaintiff, vs. Charles A. Johnson, Defendant.
    NO. DC 96-30 DECISION
    DATED this 4th day of March, 1997.
   On October 7, 1996, it was the sentence and judgment of this Court as follows: 1. The court finds the defendant guilty of Arson, a Felony, in violation of Section 45-6-103, MCA. 2. For the offense of Arson, a Felony, the defendant shall serve a period of twenty (20) years at the Montana State Prison in Deer Lodge, Montana. The defendant is not eligible for parole for twenty (20) years. 3. The defendant shall receive credit for 241 days previously served at the Gallatin County Detention Center from February 8,1996, through October 7, 1996, and shall receive credit at the Gallatin County Detention Center after October 7,1996, until his transportation to the Montana State Prison by the Gallatin Sheriff. 4. The Court finds the defendant guilty under Count 5 of the Partner or Family Member Assault, a Misdemeanor, in violation of Section 45-5-206, MCA. For the offense of Partner or Family Member Assault, the defendant shall serve six (6) months in the county jail, to be served concurrently with the sentence on Count 1. 5. The defendant is designated a persistent felony offender. The defendant is not sentenced to any additional time for being a persistent felony offender.

On February 20,1997, 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 with the modification that one half (1/2) of the defendant’s earnings from his prison salary be sent to Theresa Butcher in care of the Clerk of Court’s Office of Gallatin County.

The reason for the modification is because of the tremendous amount of financial loss that the defendant caused to the victim, Ms. Butcher.

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Charles A. Johnson for representing himself in this matter.


text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.

      STATE OF MONTANA, Plaintiff, vs. Charles Johnson, Defendant.
    No. DC 96-30 AMENDED JUDGMENT AND COMMITMENT TO THE STATE PENITENTIARY
    DATED this 25th day of March, 1997.
   On October 7, 1996, it was the sentence and judgment of this Court as follows: 1. The court finds the defendant guilty of Arson, a Felony, in violation of Section 45-6-103, MCA. 2. For the offense of Arson, a Felony, the defendant shall serve a period of twenty (20) years at the Montana State Prison in Deer Lodge, Montana. The defendant is not eligible for parole for twenty (20) years. 3. The defendant shall receive credit for 241 days previously served at the Gallatin County Detention Center from February 8,1996, through October 7, 1996, and shall receive credit at the Gallatin County Detention Center after October 7,1996, until his transportation to the Montana State Prison by the Gallatin Sheriff. 4. The Court finds the defendant guilty under Count 5 of the Partner or Family Member Assault, a Misdemeanor, in violation of Section 45-5-206, MCA. For the offense of Partner or Family Member Assault, the defendant’ shall serve six (6) months in the county jail, to be served concurrently with the sentence on Count 1. 5. The defendant is designated a persistent felony offender. The defendant is not sentenced to any additional time for being a persistent felony offender.

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.

The Defendant having been duly informed of the amended judgment and commitment, and having waived his right to appear before the undersigned for this pronouncement of sentence, whereupon,

IT IS ORDERED, ADJUDGED AND DECREED that after careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed with the modification that one half (1/2) of the defendant’s earnings from his prison salary be sent to Theresa Butcher in care of the Clerk of Court’s Office of Gallatin County.

The reason for the modification is because of the tremendous amount of financial loss that the defendant caused to the victim, Ms. Butcher.

This judgment and sentence is to be as of the 20th day of February, 1997.

Ted L. Mizner, District Court Judge


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Mark Timothy Kertson, Defendant.
    NO. 8276 DECISION
   On December 13, 1996, the Court found that the defendant was in violation of the conditions of his suspended sentence for the offense of Theft, a Felony. 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 six (6) years in the Montana State Prison at Deer Lodge, Montana. 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 March 6, 1988, through April 4, 1988; from October 25, 1988, through December 21, 1988; and from October 7, 1996, through date of sentencing, December 2, 1996; for one hundred forty-five (145) days jail time which he has previously served.

DATED this 4th day of March, 1997.

On February 20, 1997, 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.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to read as follows:

The defendant shall be sentenced to the Department of Corrections for six (6) years for the offense of Theft, a Felony. All conditions as stated in the December 2, 1996 judgment shall remain the same as imposed.

Reasons for the amendment are because of the length of time that the defendant has successfully served on probation and also that the defendant’s needs will be better served by the Department of Corrections.

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Mark Timothy Kertson for representing himself in this matter.


text:
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Mark Timothy Kertson, Defendant.
    No. 8276 AMENDED JUDGMENT AND COMMITMENT TO THE STATE PENITENTIARY
   On December 13, 1996, the Court found that the defendant was in violation of the conditions of his suspended sentence for the offense of Theft, a Felony. 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 six (6) years in the Montana State Prison at Deer Lodge, Montana. 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 March 6, 1988, through April 4, 1988; from October 25, 1988, through December 21, 1988; and from October 7, 1996, through date of sentencing, December 2, 1996; for one hundred forty-five (145) days jail time which he has previously served.

DATED this 25th day of March, 1997.

On February 20, 1997, 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.

The Defendant having been duly informed of the amended judgment and commitment, and having waived his right to appear before the undersigned for this pronouncement of sentence, whereupon; After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that: The defendant shall be sentenced to the Department of Corrections for six (6) years for the offense of Theft, a Felony. All conditions as stated in the December 2, 1996 judgment shall remain the same as imposed.

Reasons for the amendment are because of the length of time that the defendant has successfully served on probation and also that the defendant’s needs will be better served by the Department of Corrections.

This judgment and sentence is to be as of the 20th day of February, 1997.

Ted L. Mizner, District Court Judge.


text:
    FROM: The District Court of the 2nd Judicial District. County of Silver Bow.
    STATE OF MONTANA, Plaintiff, vs. Mitchell J. Kilmer, Defendant.
    NO. DC 96-14 DECISION
    DATED this 4th day of March, 1997.
   On November 13, 1996, it was the judgment of this court that the defendant, Mitchell J. Kilmer is guilty of the felony offense of Indecent Exposure, third offense, in violation of Section 45-5-504(1) and 45-5-504(2)(c), MCA 1995 as charged in Count I of the Information. It is the order of this court that the defendant be sentenced to a term of imprisonment of twenty (20) years at Montana State Prison, with fifteen (15) of such years suspended, subject to the terms and conditions as stated in the November 13, 1996 judgment. The defendant shall be given credit for time served in the Butte-Silver Bow Jail in the amount of one (1) day.

On February 20, 1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. The Defendant was present and proceeded Pro Se. The state was not represented.

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

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

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Neal Keith LaFond, Defendant.
    NO. DC 95-175 DECISION
    DATED this 4th day of March, 1997.
   On November 9, 1995, it was the judgment of this Court that the defendant serve a term of ten (10) years at the Montana State Prison. It is also recommended that the defendant be considered for placement at the Swan River Boot Camp. Should the defendant be granted parole, he must comply with the conditions of his release from custody as stated in the November 9, 1995 judgment. The defendant is hereby given credit for one hundred six (106) days served in the Flathead County Detention Center pending final disposition in this matter.

On February 20,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

Done in open Court this 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.


text:
    FROM: The District Court of the 5th Judicial District. County of Beaverhead.
    STATE OF MONTANA, Plaintiff, vs. Russell Lynn Lockyer, Defendant.
    NO. DC 96-2599 DECISION
   On November 20, 1996, it was therefore ordered, adjudged and decreed, and this does order, adjudge and decree that due to and because of the defendant’s continuing and chronic abuse of alcoholic beverages, and it appearing proper therefore, it is ordered that the said defendant be and is committed to the custody of the Montana Department of Corrections and Human Services for a period of ten (10) years with five (5) years of said sentence (Driving While Under the Influence, a Felony) suspended upon the terms, provisions and conditions set forth in the November 20,1996judgment.

On February 20,1997, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

DATED this 4th day of March, 1997.

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 20th day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Russell Lynn Lockyer for representing himself in this matter.


text:
    FROM: The District Court of the 5th Judicial District. County of Beaverhead.
    STATE OF MONTANA, Plaintiff, vs. Russell Lynn Lockyer, Defendant.
    NO. DC 96-2620 DECISION
   On November 20, 1996, it was therefore ordered, adjudged and decreed, and this does order, adjudge and decree that due to and because of the defendant’s continuing and chronic abuse of alcoholic beverages, and it appearing proper therefore, it is ordered that the said defendant be and is committed to the custody of the Montana Department of Corrections and Human Services for a period of ten (10) years with five (5) years of said sentence (Driving While Under the Influence, a Felony) suspended upon the terms, provisions and conditions set forth in the November 20,1996judgment.

On February 20, 1997, 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 20th day of February, 1997.

DATED this 4th day of March, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Russell Lynn Lockyer for representing himself in this matter.


text:
    FROM: The District Court of the 11th Judicial District. County of Flathead.
    STATE OF MONTANA, Plaintiff, vs. Leonard Lowell Martin, Defendant.
    NO. DC 94-197B/DC 94-201B DECISION
   On June 28,1995, the Court imposed the following sentences: On Count II: Sexual Assault, a felony, twenty (20) years at the Montana State Prison. On Count III: Sexual Intercourse Without Consent, a felony, forty (40) years at the Montana State Prison. On Count IV: Sexual Assault, a felony, twenty (20) years at the Montana State Prison. On Count V: Sexual Intercourse Without Consent, a felony, forty (40) years at the Montana State Prison. On Count VI: Sexual Assault, a felony, twenty (20) years at the Montana State Prison. On Count VII: Deviate Sexual Conduct, a felony, ten (10) years at the Montana State Prison. On Count VIII: Deviate Sexual Conduct, a felony, ten (10) years at the Montana State Prison. These sentences shall run consecutively for a total of one hundred sixty (160) years at the Montana State Prison. Further, under Section 46-18-202(2), the District Court declares that it is absolutely and totally necessary, for the protection of society, that the defendant be ineligible for parole until he has served at least eighty (80) years of his term in the Montana State Prison, and the Court so orders. Under Section 46-18-111, the Court imposes the cost of the sex offender evaluation to the defense, and if the defendant becomes eligible for parole, subjects him to conditions of parole as stated in the June 28, 1995 judgment. The defendant shall be given credit for 172 days served in pre-sentence incarceration as of June 28, 1995. As required by Section 46-18-254, M.C.A., the defendant is hereby advised of his obligation to register as a sexual offender upon his release from custody.

On February 21,1997, 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 via phone conference call from Spur, TX and was represented by attorney Steve Nardi, present via phone conference call from Kalispell, MT. The state was represented by Flathead County Attorney Tbm Esch, also present via phone conference call from Kalispell, MT.

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.

DATED this 5th day of March, 1997.

Done in open Court this 21st day of February, 1997.

Chairman, Hon. Wm. Neis Swandal, Member, Hon. Richard G. Phillips and Alternate Member, Hon. Robert Boyd.

The Sentence Review Board wishes to thank attorney Steve Nardi for representing Leonard Martin in this matter and also Flathead County Attorney Tom Esch, for representing the State.


text:
    FROM: The District Court of the 18th Judicial District. County of Gallatin.
    STATE OF MONTANA, Plaintiff, vs. Franklin McLaughlin, Defendant.
    NO. DC 96-102 DECISION
    DATED this 4th day of March, 1997.
   On July 22, 1996, it was the sentence and judgment of this court as follows: 1. The court finds the defendant guilty of Aggravated Assault, a Felony, in violation of Section 45-5-202, MCA. 2. For the offense of Aggravated Assault, a Felony, the defendant is committed to the Department of Corrections for a period of twenty-five (25) years. Twenty years for the offense of Aggravated Assault and 5 years for the use of a weapon. The Court makes no recommendation regarding placement. 3. The defendant shall pay restitution to the Crime Victims Compensation Fund in an amount to be determined by the department and the fund. 4. The Court finds the mandatory minimum sentence of two years is inapplicable in this case as the defendant was less than 18 years old at the time the offense was committed. 5. The defendant shall receive credit for two hundred twenty-eight (228) days previously served since his arrest on December 7, 1995.

On February 21, 1997, 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 Tara Javid, 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 to read as follows:

The defendant shall be committed to the Department of Corrections for a term of twenty (20) years for the offense of Aggravated Assault, a Felony. All other conditions as stated in the July 22, 1996 judgment shall remain the same as imposed.

Reasons for the amendment are because this sentence is consistent with the plea agreement. Also, the use of the enhancement is inconsistent with the sentencing judge’s findings.

Done in open Court this 21st day of February, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard G. Phillips.

The Sentence Review Board wishes to thank Tara Javid, legal intern of the Montana Defender Project, for representing Franklin McLaughlin in this matter.