author: JUSTICE LEAPHART

text:
    EBI/ORION GROUP (Connecticut Indemnity), Petitioner and Respondent, v. MICHAEL S. BLYTHE, Respondent and Appellant.
    No. 96-100.
    Submitted on Briefs November 21, 1996.
    Decided January 7, 1997.
    54 St.Rep. 54.
    281 Mont. 50.
    931 P.2d 38.

      For Appellant: Richard R. Buley; Tipp & Buley, Missoula.
    For Respondent: Charles E. McNeil; Garlington, Lohn & Robinson, Missoula.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

EBI/Orion is a workers’ compensation insurer which insured Community Medical Center (Community) in Missoula. The appellant, Michael S. Blythe (Blythe), worked at Community as a certified respiratory therapy technician. Blythe filed a claim seeking compensation and medical benefits due to alleged mental injuries he suffered while employed at Community. The Workers’ Compensation Court found that Blythe was not disabled. We reverse and remand.

Background

On January 29, 1989, Blythe was stuck by a needle in a arterial blood gas kit which had just been used to draw blood from an AIDS infected patient. Since that time, Blythe has not tested positive for the HIV virus and there appears to be no reasonable prospect that he was infected by the needle. Nonetheless, Blythe claimed that he suffered disabling psychosis and depression as a result of the incident. He claimed that he has auditory and visual hallucinations which have affected his ability to concentrate and work. EBI/Orion accepted liability and paid temporary total disability benefits under a reservation of rights. Six years later, in 1995, EBI/Orion filed a petition with the Workers’ Compensation Court to determine the extent of Blythe’s disability. EBI/Orion argued that Blythe is malingering; that he is faking mental illness in order to obtain monetary compensation on account of the incident.

The issue presented to the Workers’ Compensation Court was whether Blythe’s symptoms were real or fabricated. The Workers’ Compensation Court, based upon the testimony of two clinical psychologists, Dr. Richard Rogers and Dr. David Faust, found that the symptoms were fabricated. The issues presented to this Court are as follows:

1. Should the Workers’ Compensation Court have ordered an independent medical examination by a psychologist who is neither a physician nor licensed to practice in the State of Montana?

2. Whether the Workers’ Compensation Court’s determination that Blythe was feigning his illness is supported by substantial credible evidence.

3. Did the Workers’ Compensation Court err in not giving more weight to the treating physician than to the opinions of two psychologists; one of whom had never met Blythe and the other who had evaluated Blythe only once?

Standard of Review

We review Workers’ Compensation Court’s findings of fact to determine whether the findings are supported by substantial credible evidence. The Court reviews conclusions of law to determine whether the lower court’s interpretation of the law is correct. Kloepfer v. Lumbermen’s Mut. Cas. Co. (1996), 276 Mont. 495, 916 P.2d 1310.

Discussion

We first address the question of whether the Workers’ Compensation Court should have ordered an independent medical examination by a psychologist who is neither a physician nor licensed to practice in the State of Montana.

Blythe’s treating physician was William Stratford, M.D. Dr. Stratford is a board certified psychiatrist, a board certified disability consultant and is certified by the American Board of Forensic Examiners. He is a fellow of the American College of Forensic Psychiatry, a subspecialty which deals with the detection of malingering. Dr. Stratford first started treating Blythe in October of 1989 soon after the incident and continued seeing him through 1995.

On May 24, 1995, EBI/Orion sent out notice of an independent medical examination (IME) by a Dr. Rogers. Blythe objected to the notice of IME on the following grounds: (1) the rules of the Workers’ Compensation Court contain no provision for an IME; (2) Dr. Rogers was not previously listed as a witness; (3) an IME must be performed by a medical doctor; and (4) any IME would be invalid due to the effect of anti-psychotic medications Blythe was taking.

The Workers’ Compensation Court issued an order addressing each of Blythe’s objections. The court determined that there was no evidence to support Blythe’s claim that his use of anti-psychotic drugs would prevent a valid examination. The court then ruled that, although the Workers’ Compensation Court may not have a rule allowing IMEs, there is statutory provision for an IME under § 39-71-605, MCA. As to the alleged lack of notice concerning the IME, the court held that the issue had been addressed in a previous scheduling order and that Blythe had received adequate notice.

Blythe’s final objection to the IME was that Dr. Rogers was not a physician licensed in the State of Montana. In addressing this objection, the court held that, although § 39-71-605, MCA, refers to an IME by a “physician,” other provisions of the Workers’ Compensation Act make it clear that the term “physician” is used in a broad sense and does not refer only to medical doctors. Relying on 1993 statutory definitions, the court noted that the term “treating physician” encompasses not only M.D. physicians but also chiropractors, physician assistants and dentists. Section 39-71-116(30), MCA(1993). The court thus held: “I conclude that the legislature intended the word ‘physician’ to refer generally to persons with special expertise in the treatment of physical and psychological conditions, including Ph.D. clinical psychologists.” After reviewing the law in effect at the time of trial, we hold that the court’s ruling on this point of law was in error.

EBI/Orion, relying on Buckman v. Montana Deaconess Hosp. (1986), 224 Mont. 318, 730 P.2d 380, contends that the law in effect at the time of the claimant’s injury controls. Thus, EBI/Orion argues that this January 1989 injury is controlled by the 1987 version of § 39-71-605, MCA, which provides for IMEs by “physicians” who have had “adequate and substantial experience in the particular field of medicine concerned with the matters presented by the dispute.” Section 39-71-605(2), MCA (1987).

Prior to 1993, a “physician” was defined as being a “ ‘surgeon’ and in either case means one authorized by law to practice his profession in this state.” Section 39-71-116(17) MCA (1991).

EBI/Orion’s reliance of Buckman and thus the 1987 version of the law, however, is misplaced. The Buckman rule only applies to substantive rights of a claimant, such as the right to benefits allowed at the time of injury. Buckman, 730 P.2d at 382 (citation omitted). We have held that the statutes in effect at the time of trial control when the subject is procedural rather than substantive. State Compensation Ins. v. Sky Country (1989), 239 Mont. 376, 379, 780 P.2d 1135, 1137. A rule as to who is qualified to conduct an IME is a procedural rather than a substantive rule. Thus, the law in effect as to IMEs as of the date of the trial is controlling.

The question then becomes whether the 1993 version of § 39-71-605, MCA, allows for an IME to be conducted by a clinical psychologist. Section 39-71-605(2), MCA (1993), provides for an IME by a physician or panel of physicians. The 1987 specific definition of “physician” was deleted by the legislative amendment in 1993 and replaced with a definition of “treating physician” as follows:

(a) a physician licensed by the state of Montana under Title 37, chapter 3, and has admitting privileges to practice in one or more hospitals, if any, in the area where the physician is located;
(b) a chiropractor licensed by the state of Montana under Title 37, chapter 12;
(c) a physician assistant-certified licensed by the state of Montana under Title 37, chapter 20, if there is not a physician, as defined in subsection 30(a), in the area where the physician assistant-certified is located;
(d) an osteopath licensed by the state of Montana under Title 37, chapter 5; or
(e) a dentist licensed by the state of Montana under Title 37, chapter 4.

Section 39-71-116(30), MCA (1993).

The above definition is broader than the generally accepted definitions of “physician” as being a person lawfully engaged in the practice of medicine. Black’s Law Dictionary, 1147 (6th ed. 1990). “The term commonly refers to a doctor of medicine (MD) or a doctor of osteopathy (DO).” The American Medical Association, Encyclopedia of Medicine, 793 (1989). In the absence of a definition of “physician,” the Workers’ Compensation Court looked to the definition of “treating physician” which encompasses more than medical doctors.

The Workers’ Compensation Court, in light of the above definition, concluded that the term “ ‘physician’ is to be used in a broad sense and does not refer only to medical doctors.” We hold that the court’s interpretation is too liberal. Section 39-71-105(4), MCA (1993), provides that “Title 39, chapters 71 and 72, must be construed according to their terms and not liberally in favor of any party.” While we agree that “treating physician” is not limited to medical doctors, we do not agree that even that broad definition encompasses Dr. Rogers.

The legislature was very specific in defining which professionals come within the definition of “treating physician.” The professionals listed were not listed by way of example. Rather, they were set forth as an exhaustive list. The legislature chose not to include psychologists on this list. The role of the court in interpreting statutory language is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. Section 1-2-101, MCA; Goyen v. City of Troy (1996), 276 Mont. 213, 221, 915 P.2d 824, 829. Furthermore, it must be noted that each of the professionals that are listed in the definition, § 39-71-116(30) MCA (1993), must be licensed by the State of Montana. Thus, even if we were to assume, arguendo, that psychologists were encompassed in the list of professionals, we would likewise have to assume that, like the other listed professionals, a psychologist would have to be licensed to practice in the State of Montana. As used in Title 39, Chapter 71, MCA, the term “treating physician” does not encompass the profession of clinical psychology, nor is Dr. Rogers licensed to practice in the State of Montana. Clearly, Dr. Rogers does not qualify as a “physician” (“treating” or otherwise) for purposes of an IME examination.

We hold that the Workers’ Compensation Court erred in requiring Blythe to submit to an IME by Dr. Rogers. The court further erred in relying on Dr. Rogers’ testimony, which was based upon his examination of Blythe, to conclude that Blythe “has fabricated and feigned mental illness in an attempt to advance his legal claims.”

The Testimony of Dr. Faust:

Our holding that IMEs must, by statute, be conducted by “physicians,” not psychologists, does not affect the testimony of Dr. Faust. Although Dr. Faust, like Dr. Rogers, is a clinical psychologist, Dr. Faust did not conduct an IME and thus he was not subject to the definition of “physician” as we have interpreted that term in the context of §§ 39-71-605 and -116(30), MCA (1993). Dr. Faust, a professor of psychology from the University of Rhode Island, is a recognized authority on malingering. After reviewing Blythe’s psychological tests and listening to Blythe testify at trial, he testified that, in his opinion, Blythe is malingering mental disorders.

In the Workers’ Compensation Court, Blythe argued that Dr. Faust did not conduct a face-to-face examination and that his testimony should not carry as much weight as the treating physician, Dr. Stratford. Blythe now argues in his appellate reply brief that since Dr. Faust is not a medical doctor, his testimony is not “medical” evidence under § 39-71-702(2), MCA(1987). Blythe cites KLoepfer for the proposition that the Workers’ Compensation Court is only to resolve conflicts in “medical” testimony. He argues that in his case there is no conflicting “medical” testimony since the only experts for the insurer were psychologists who are not “medical” doctors; that the treating physician, Dr. Stratford, was the only medical doctor testifying.

Blythe, however, did not object to the testimony of Dr. Faust nor did he ask the court to reconsider its decision which explicitly relies on both the testimony of Dr. Rogers and Dr. Faust. In the absence of any sort of objection to Dr. Faust’s testimony, the Workers’ Compensation Court had no basis for disregarding the testimony of the psychologist. Since Blythe failed to challenge the testimony of Dr. Faust in the Workers’ Compensation Court or ask that court to reconsider its decision, he cannot now raise the issue for the first time on appeal. Guardianship & Conserv. of Estate of Tennant (1986), 220 Mont. 78, 83, 714 P.2d 122, 125. Furthermore, the argument that Dr. Faust and Dr. Rogers did not present “medical” testimony was raised for the first time in Blythe’s reply brief. Rule 23(c), M.R.App.R, requires that reply briefs be confined to new matter raised in the respondent’s brief. Thus, an appellant is prohibited from raising new issues or theories in a reply brief. Loney v. Milodragovich, Dale & Dye, P.C. (1995), 273 Mont. 506, 512, 905 P.2d 158, 162. For all of the above reasons, we reject Blythe’s suggestion that the Workers’ Compensation Court erred in considering the testimony of Dr. Faust.

Since the court’s conclusion that Blythe was malingering was based partly on testimony to which there was no objection and partly on inadmissible testimony, a question remains as to what the court’s findings of fact and conclusions of law would have been absent Dr. Rogers’ IME. We will not substitute our judgment for that of the Workers’ Compensation Court as to weight of evidence on questions of fact. Mennis v. Anderson Steel Supply (1992), 255 Mont. 180, 184, 841 P.2d 528, 530. Accordingly, we remand this matter to the Workers’ Compensation Court for a reweighing of the evidence as to malingering; contrasting the testimony of Blythe’s experts, including Dr. Stratford, with the testimony of EBI/Orion’s remaining expert, Dr. Faust.

Summary

As to issue number one, we hold that the Workers’ Compensation Court should not have ordered an independent medical examination by a psychologist who is neither a physician nor licensed to practice in the State of Montana. On issue number two, we remand for new findings and conclusions after discounting the IME performed by Dr. Rogers as well as his trial testimony. In light of the remand on issue number two, we need not address issue number three other than to note that, as a general rule, we have held that the testimony of a treating physician is entitled to greater evidentiary weight. Pepion v. Blackfeet Tribal Industries (1993), 257 Mont. 485, 489, 850 P.2d 299, 302. “Nevertheless, a treating physician’s opinion is not conclusive. To presume otherwise would quash the role of the fact finder in questions of an alleged injury.” Kloepfer, 916 P.2d at 1312.

Reversed and remanded for reconsideration consistent with our holding herein.

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


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. Charles William Hudgins, Defendant.
    NO. CR 88-31
    DECISION
   On February 21,1996, it was the judgment of the court that the defendant, Charles William Hudgins is guilty of the crimes of Kidnapping, Sexual Intercourse Without Consent, Felony Assault, and Sexual Assault, all felonies. Defendant shall be imprisoned in the Montana State Prison for a term of forty (40) years, as follows: Ten (10) years on the charge of Kidnapping; Ten (10) years on the charge of Sexual Intercourse Without Consent; Ten (10) years on the charge of Felony Assault; and Ten (10) years on the charge of Sexual Assault, with all the above sentences to run consecutively; Defendant is to receive credit for time already served as a result of the original Information in this matter. Defendant shall be designated a dangerous offender for purposes of parole eligibility; Defendant shall serve a minimum of 25% of his sentence at the Montana State Prison before he is eligible for parole; Defendant shall successfully complete Phase II of the Sexual Offender Program at the Montana State Prison and all other related therapy as recommended in prison prior to eligibility for parole; Defendant shall register as a sexual offender under Title 46, Chapter 23, Part 5, MCA, the Sexual or Violent Offender Registration Act. Defendant has agreed to comply with the requirements of Title 46, Chapter 23, Part 5, MCA, and has signed the Notice of Sexual or Violent Offender Registration Requirements filed in this Court. Defendant shall pay an amount of $3,000 as restitution to date, for the following: a. reimbursement to the victim for any out-of-pocket counseling or other medical expenses directly related to these crimes, not already reimbursed by the Crime Control Board’s victim compensation program or by other form of reimbursement, such as insurance; and b. reimbursement of the Crime Control Board’s victim compensation program’s payment for counseling or other medical expenses of the victim. If the victim incurs additional counseling or medical expenses arising from these crimes, she may petition the Court for additional restitution by submitting an affidavit and invoice. Defendant may request a hearing if the amount is disputed.

DATED this 4th day of June, 1996.

On May 24,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

Done in open Court this 24th day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Charles William Hudgins for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Gabriel Peter Ingersoll, Defendant.
    NO. CR 91-96
    DECISION
   On November 29,1995, it was the judgment of the Court that the defendant is guilty of violating the terms and conditions of the deferred imposition of sentence dated February 5,1992, and the deferred imposition of sentence is hereby revoked; That the defendant shall be committed to the custody of the Montana Department of Corrections and Human Services for appropriate placement into a community-based program, facility or state correctional institution for a period of ten (10) years on each of the felonies, and six (6) months on each of the misdemeanors, all to be served concurrently with one another. The defendant shall receive credit of 142 days for jail time served prior to this sentencing. The Court recommends the defendant be placed at a pre-release center, and further recommends the defendant not be considered for release until arrangements have been made to address conditions and obligations set forth in the original judgment of February 5, 1992.

DATED this 4th day of June, 1996.

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

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

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

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

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

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Gabriel Ingersoll for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Shawn C. Lafley, Defendant.
    NO. DC 94-171
    DECISION
   On December 28, 1995, it was the judgment of the 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, or should his sentence be reduced following his graduation from Boot Camp, the defendant must comply with all conditions imposed by this Court’s judgment of April 24, 1995. The defendant must also comply with other conditions as stated in the December 28,1995 judgment. The defendant is to be given credit for one hundred (113) days served in custody pending final disposition in this matter.

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

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

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

DATED this 4th day of June, 1996.

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

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

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Shawn C. Lafley for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Danny C. Lapier, Defendant.
    NO. 11818
    DECISION
   On February 5, 1996, it was the judgment of the Court that Danny Carl Lapier be committed to the Department of Corrections for a term of ten (10) years on Count I, Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. It is the judgment of the Court that Danny Carl Lapier be sentenced to a term of six (6) months on Count II, Driving While License Suspended or Revoked, a Misdemeanor, and III, Operating a Motor Vehicle Without Proof of Liability Insurance in Effect, third Offense, a Misdemeanor, in the Missoula County Jail in Missoula, Montana. That, however, all but ten (10) days of defendant’s sentence on Count II and all but thirty (30) days of defendant’s sentence on Count III is hereby suspended. The sentences shall run concurrently with each other. Terms and conditions of probation in the February 5, 1996 judgment apply. Defendant shall receive credit for time served at Missoula County Jail from October 7, 1995, through date of sentencing, February 5,1996, in the amount of one hundred twenty-two (122) days.

On May 24,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Attorney Ann Sherwood. The state was not represented.

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

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

DATED this 4th day of June, 1996.

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

Done in open Court this 24th day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Attorney Ann Sherwood for representing Danny Lapier in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Alan McFarland, Defendant.
    NO. DC 95-373
    DECISION
    DATED this 4th day of June, 1996.
   On December 4, 1995, the defendant was duly convicted in this Court of the crime of Deceptive Practices (Felony); it is therefore ordered, adjudged and decreed that the said Alan McFarland be committed to the Department of Corrections pursuant to Section 46-201(e), Montana Code Annotated to be placed in an appropriate community based program, facility or a State Correctional Institution, for custody, care and treatment for the term of five (5) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 167 days. It is further ordered that additional special conditions shall apply as stated in the December 4, 1995 judgment.

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

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

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

It is the unanimous decision of the Sentence Review Division that the petition shall be dismissed without prejudice.

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Alan McFarland, Defendant.
    NO. DC 93-342
    DECISION
    DATED this 4th day of June, 1996.
   On December 4,1995, the defendant was resentenced for the crime of Fraudulently Obtaining Dangerous Drugs (Felony). Wherefore, it is ordered, adjudged and decreed that the said Alan McFarland be committed to the Department of Corrections and Human Services pursuant to Section 46-18-201(e), Montana Code Annotated to be placed in an appropriate community based program, facility or a State Correctional Institution, for custody, care and treatment for the term of three (3) years to run concurrently with the sentence received in criminal cause number DC 95-373. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 167 days. It is further ordered that additional special conditions shall apply as stated in the December 4, 1995 judgment.

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

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

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

It is the unanimous decision of the Sentence Review Division that the petition shall be dismissed without prejudice.

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Rafael Torres Nieto, Defendant.
    NO. DC 94-017
    DECISION
   On July 7, 1995, it was ordered, adjudged and decreed that the defendant shall receive the following sentence: 1. As to the crime of Attempted Deliberate Homicide, Montana Code Annotated 45-4-103 (1993) and 45-5-401 (1993), the defendant shall serve forty (40) years in the Montana State Prison; 2. As to the charge of Use of a Weapon in the commission of the crime of Attempted Deliberate Homicide, pursuant to Montana Code Annotated 46-18-221 (1993), the defendant shall serve an additional ten (10) years in the Montana State Prison which shall run consecutively; 3. As to the charge of Criminal Endangerment, Montana Code Annotated 45-5-207(1993), the defendant shall serve five (5) years in the Montana State Prison. This sentence shall be concurrent with the sentence for Attempted Deliberate Homicide; 4. As to the charge of Use of a Weapon, Montana Code Annotated 46-18-221(1993), the defendant shall serve an additional five (5) years in the Montana State Prison which shall run consecutively to Criminal Endangerment but concurrently with the Attempted Deliberate Homicide and additional dangerous weapon sentence for that offense; 5. The defendant shall be designated a dangerous offender pursuant to Montana Code Annotated 46-18-404 (1993); 6. The defendant shall receive 333 days credit for the time he spent incarcerated in the Toole County Department of Public Safety pursuant to Montana Code Annotated 46-18-403(1993).

DATED this 4th day of June, 1996.

On May 24,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded Pro Se, but with the help of an interpreter. 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 24th day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Rafael Nieto Torres and his interpreter for representing him in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. John Harmon Owen, Defendant.
    NO. 11788
    DECISION
   On January 22, 1996, it was the judgment of the Court that John Harmon Owen be sentenced to a term of ten (10) years on Count I: Attempted Forgery, a Felony, in the Montana State Prison in Deer Lodge, Montana; and to a term of six (6) months each on Count II: Forgery, a Misdemeanor, and III: Forgery, a Misdemeanor, in the Missoula County Jail in Missoula, Montana. The sentences shall run concurrently with each other. Defendant shall receive credit for time served at Missoula County Jail from September 15, 1995, through date of sentencing, January 22, 1996, in the amount of one hundred thirty (130) days.

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

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

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

DATED this 4th day of June, 1996.

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

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

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank John Harmon Owen for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Lawrence E. Owens, Defendant.
    NO. DC 95-09
    DECISION
   On February 7,1996, it was ordered by the Court that the defendant be sentenced to confinement in the Montana State Prison for a term of seven (7) years for the offense of Obstructing Justice, a felony. It is further ordered that this sentence shall run concurrently with any sentence this defendant receives from the revocation proceedings currently pending in Lewis & Clark County, Montana. The defendant shall be given credit toward this sentence for all time served in the Pondera County Jail. In this regard, the Pondera County Sheriff is directed to submit to Montana State Prison a statement in writing which shall specify the exact number of days served by the Defendant in the Pondera County Jail.

On May 23rd, 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.

DATED this 4th day of June, 1996.

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


author: CHIEF JUSTICE TURNAGE

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. DENNIS FINNEY, Defendant and Appellant.
    No. 96-232.
    Submitted on Briefs December 5, 1996.
    Decided January 9, 1997.
    54 St.Rep. 58.
    281 Mont. 58.
    931 P.2d 1300.

      For Appellant: Jeffrey T. Renz, Montana Defender Project, Missoula.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; Patricia Jordan, Assistant Attorney General, Helena; Ed Corrigan, Deputy County Attorney, Kalispell.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Dennis Finney pled guilty before the Eleventh Judicial District Court, Flathead County, to three counts of burglary and one count of felony theft. Here, he appeals from the dismissal of his second amended petition for post-conviction relief. We affirm.

The following issues are raised on appeal:

1. Were Finney’s First Amendment rights violated and does plain error exist as a result of reference at the sentencing hearing to his affiliation with the Aryan Nations and ‘White Power?”

2. Was Finney’s Sixth Amendment right to effective assistance of counsel violated when counsel failed to inform him about his right to appeal and failed to perfect the right by filing a notice of appeal?

In February 1993, Dennis Finney pled guilty to four crimes committed in November 1992 in Kalispell, Montana: theft of locksmith and keymaking equipment from his neighbor; and burglaries at the Mennonite Church, the Sugar n’ Spice Day Care in the Christian Center Church, and an elementary and junior high school.

At the sentencing hearing, the court heard evidence that Finney, at age twenty-six, had accumulated a significant criminal history, including possession of stolen property, multiple thefts, probation violations, and arson of an apartment budding. Finney’s previous efforts at probation and parole had been rmsuccessftd. He had fled from supervision, used drugs, and committed crimes while on probation for previous offenses. When he committed the first of the instant burglaries, Finney had been paroled from Montana State Prison for only a few weeks.

Finney testified at length at his sentencing hearing. He stated that he had never been employed and that crime was his way of making a living. He said it did not really matter to him whether he was in prison or on the streets, and that he was more used to prison life than to street life.

Finney testified that the November 1992 crimes were his idea, not that of his codefendants. He also admitted to being a chronic user of illegal drugs but denied that this was a problem for him. He had previously refused to enter treatment for drug addiction.

In a written statement prepared for the presentence investigation, Finney wrote:

I was arrested for 3 Burglarys and one Felony Theft. I realy dont got anythink to say about these crimes. I know 111 be going back to prison and I know 111 go back agian after I get out from this ordeal-prison dosent bother me and its all I know my people are in prison “Aryan Nations” so like I said prison dosent bother me. I do feel bad about one thing and that is messing with the Sugar-n-Spice day care I had no Idea it was a day care-thats about it.

The words “White Power” are tattooed on Finney’s forehead. During cross-examination on his written statement at sentencing, he acknowledged that his ties to “White Power” are “pretty strong.”

The court imposed the maximum sentence of twenty years for each of the three burglaries, ordering that two of those sentences be served concurrently. It imposed a sentence of ten years for the theft, resulting in a total sentence of fifty years. The court found that Finney presented a danger to society and designated him a dangerous offender. Although it noted that his record would allow a designation as a persistent felony offender, the State did not seek such a designation and the court did not impose it.

The court imposed upon Finney responsibility for restitution of approximately thirty-four thousand dollars, the exact sum to be determined by Finney’s parole and probation officer. The court further recommended that, at the prison, Finney receive counseling and treatment for drug addiction.

Finney petitioned for sentence review, which action was stayed pending disposition of his pro se petition for post-conviction relief. Counsel on this appeal later assisted him in filing a second amended petition for post-conviction relief, in which he argued that he had received a longer sentence than his codefendants because the court improperly considered his membership in the Aryan Nations Church. The second amended petition also asserted that Finney’s counsel rendered ineffective assistance by failing to request a psychiatric examination and failing to advise Finney of his right to appeal. Finney later withdrew his allegation of ineffective assistance for failure to obtain a psychiatric examination.

The District Court denied Finney’s second amended petition for post-conviction relief, stating in part that his sentence was based on his “own life history and unwillingness to even attempt rehabilitation.”

ISSUE I

Were Finney’s First Amendment rights violated and does plain error exist as a result of reference at the sentencing hearing to his affiliation with the Aryan Nations and ‘White Power?”

In imposing sentence, the District Court orally discussed at length the lack of mitigating circumstances and the aggravating circumstances in this case. As to the State’s recommendation of a substantial term of incarceration, the court stated:

Although I don’t want to impose the kind of a sentence or fashion the kind of a sentence that totally slams the door upon any possibility of rehabilitation, in the event that you some day decide that maybe that is a goal you want to direct your energies toward, I am concerned with your inclination at this time at least to direct your energies toward the cause of such organizations as the Aryan Nations. I think you’ll find that that is not something that you’ll find a great deal of receptance [sic] to at the Montana State Prison. You may have had that experience elsewhere. It may not play well at Deer Lodge, Montana. But that is an experience that you may have to learn for yourself.

At the end of the hearing, after imposing sentence, the court stated:

I am not aware of any authority that I have to impose upon you any restrictions concerning your desire to become involved with the Aryan Nations, so I won’t attempt to do so; other than to advise you that such behavior will not play well in any attempt you ever make toward probation or parole.
That is merely offered as advice. It is up to you whether you take it or not[.]

Finney argues that the court’s references violated his First Amendment rights to free speech and freedom of religion. He cites as authority Dawson v. Delaware (1992), 503 U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309.

In Dawson, the prosecution introduced evidence to a capital sentencing jury that the defendant had the words “Aryan Brotherhood” tattooed on his hand. The prosecution also introduced into evidence a stipulated statement that:

The Aryan Brotherhood refers to a white racist prison gang that began in the 1960’s in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware.

Dawson, 503 U.S. at 162, 112 S.Ct. at 1096. The United States Supreme Court considered but rejected Dawson’s argument that because his association with the Aryan Brotherhood was constitutionally protected, the admission into evidence of information about that association constituted violation of his constitutional rights. The Court held, however, that the admission into evidence of the statement regarding Dawson’s membership in the Aryan Brotherhood was constitutional error because “the narrowness of the stipulation left the Aryan Brotherhood evidence totally without relevance to Dawson’s sentencing proceeding.” Dawson, 503 U.S. at 165, 112 S.Ct. at 1097. The Court stated it had not been shown that the Aryan Brotherhood was tied in any way to Dawson’s crime, the prosecution did not prove that the Aryan Brotherhood had committed any unlawful or violent acts to indicate that Dawson posed a future danger to society, and the evidence was not relevant to rebut any mitigating evidence. Dawson, 503 U.S. at 166-67, 112 S.Ct. at 1098-99.

In another case cited by Finney, the defendant was convicted of conspiracy to build a pipe bomb and other crimes in connection with travel from Hayden Lake, Idaho, to Seattle, Washington, for the purpose of exploding a bomb in a gay bar. United States v. Winslow (9th Cir. 1992), 962 F.2d 845. In contrast to the holding under the facts of Dawson, the Ninth Circuit Court of Appeals held:

Because the term “Aryan Warrior” was relevant to background material, and referred to in testimony and other evidence presented to the jury, it was not improper for the prosecutor to mention it when questioning [a co-defendant].

Winslow, 962 F.2d at 850.

In this case, during one of the burglaries, Finney and his codefendants wrote ‘White Power” and drew two lightning bolts on a school wall with magic markers. Finney also brought up the subject of Aryan Nations in his own written statement for the presentence investigation.

The discussion of Aryan Nations and “White Power” at sentencing was limited. The prosecuting attorney asked Finney to clarify that he had violated probation and gone to northern Idaho because of the Aryan Nations presence there. The other references were the court’s advice to Finney that association with the Aryan Nations might not be helpful to him within the Montana State Prison or in seeking parole.

Moreover, in this case, Finney’s sentence was imposed by the court, rather than by a jury, before which possible inflammatory information must be more carefully screened. See State v. Keith (1988), 231 Mont. 214, 237, 754 P.2d 474, 488.

Finally, an abundance of other evidence in the record supports the sentence imposed, which is within the range allowed for the crimes of which Finney was convicted. The record does not support a conclusion that the court relied upon Finney’s support of Aryan Nations or “White Power” in determining his sentence and in giving its reasons therefor pursuant to § 46-18-102(3), MCA. We hold that Finney has established neither violation of his First Amendment rights nor plain error as a result of reference at the sentencing hearing to his affiliation with the Aryan Nations.

ISSUE 2

Was Finney’s Sixth Amendment right to effective assistance of counsel violated when counsel failed to inform him about his right to appeal and failed to perfect the right by filing a notice of appeal?

A claim of ineffective assistance of counsel requires a showing that counsel’s performance was deficient and that the deficient performance prejudiced the defense so as to deny the defendant a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, adopted by this Court in State v. Boyer (1985), 215 Mont. 143, 147, 695 P.2d 829, 831.

Issues which may be raised on appeal after a criminal defendant enters a plea of guilty are limited. United States v. Broce (1989), 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927, 935. Further, no violation of a defendant’s due process rights occurs if the defendant is denied an appeal but is afforded a remedy in post-conviction proceedings. Evitts v. Lucey (1985), 469 U.S. 387, 399, 105 S.Ct. 830, 838, 83 L.Ed.2d 821, 832.

The issue which Finney claims he would have argued on appeal has been considered on its merits by the District Court and under Issue 1 above. We conclude, therefore, that the remedy for any ineffective assistance of counsel has been granted and that Finney’s argument under Issue 2 has become moot.

We affirm the decision of the District Court.

JUSTICES NELSON, HUNT, TRIEWEILER and GRAY concur.


text:
    STATE OF MONTANA, Plaintiff, vs. Bobby Joe Price, Defendant.
    NO. DC 94-358
    DECISION
   On November 29, 1994, the said Bobby Joe Price was duly convicted in this Court of the crime of Attempt (Deliberate Homicide), a Felony; it is therefore ordered, adjudged and decreed that the said defendant be punished by imprisonment in the Montana State Prison at Deer Lodge, Montana, for the term of one hundred (100) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, from July 9, 1994 through November 29, 1994, for 138 days. It is further ordered that because the defendant, while engaged in the commission of the offense of Attempt (Deliberate Homicide) (Felony) knowingly used a dangerous weapon, to wit: dousing the victim with gasoline and setting her on fire by use of a cigarette lighter; he is hereby sentenced to the term of ten (10) years in the Montana State Prison under the authority of46-18-221, Montana Code Annotated. This term of imprisonment shall be served consecutively with the term imposed for the commission of the crime of Attempt (Deliberate Homicide) (Felony) as charged in the Amended Information. It is further ordered that defendant shall not be eligible for parole placement in any supervised release program or for placement in any program or facility besides Montana State Prison for the first twenty-five (25) years of the sentence imposed in this case. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20(00) to the Treasurer of this County. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at Ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court.

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

The Defendant was present and was represented by Jeff Renz of the Montana Defender Project. The state was represented by Dennis Paxinos, County Attorney from Billings.

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

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

DATED this 4th day of June, 1996.

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

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Jeff Renz of the Montana Defender Project for representing Bobby Joe Price in this matter and also Dennis Paxinos, County Attorney from Billings, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Mark Warren Rogers, Defendant.
    NO. DC 95-178
    DECISION
    DATED this 4th day of June, 1996.
   On October 19,1995, it was the judgment of this Court that the defendant is guilty of the offense of Burglary, a felony, Section 45-6-204, MCA, in that the defendant between July 10th and July 20th, 1995, knowingly entered or remained unlawfully in an occupied structure at 650 Forest Hill Dr., Somers, Flathead County, Montana, with the purpose to commit the offense of theft therein, contrary to Section 45-6-204, MCA, as set forth in the Information; and wherefore, it is the sentence of this court that the defendant shall serve twenty (20) years at the Montana State Prison. The defendant shall be given 83 days credit for time served in pre-sentence incarceration as of October 19, 1995. The Court further orders that the defendant shall have conditions placed upon him as conditions for his eligibility for parole as stated in the October 19,1995 judgment.

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

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

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

It is the unanimous decision of the Sentence Review Division that the petition shall be dismissed without prejudice.

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Raymond M. Schwandt, Defendant.
    NO. DC 95-2582
    DECISION
    DATED this 4th day of June, 1996.
   On December 12,1995, it was ordered that the defendant, Raymond Schwandt, for the offense of Assault, a Felony, is hereby ordered confined at the Montana State Prison for a term of ten (10) years. It is hereby further specifically ordered that the defendant shall not be eligible for parole until the defendant has successfully enrolled in, attended and completed all chemical dependency counseling and treatment programs available at or through Montana State Prison. It is the further specific order of the Court that the above-named defendant shall not be eligible for parole until the said defendant has successfully enrolled in, attended and completed all mental health treatment available at or through Montana State Prison. It is the order of the Court that the defendant shall be given credit for 33 days served in the Beaverhead County Jail while awaiting judgment and sentence in this matter.

On May 24,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

Done in open Court this 24th day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Raymond Schwandt for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Jorge Torres, Defendant.
    NO. DC 94-364
    DECISION
   On April 14,1995, the said defendant was duly convicted in this Court of the crime of Aggravated Assault (Felony); it is therefore ordered, adjudged and decreed that the said Jorge Tbrres be punished by imprisonment in the Montana State Prison at Deer Lodge, Montana, for the term of Twenty (20) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 9 days. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty Dollars ($20.00) to the Treasurer of this County. The defendant is further notified that the law imposes upon him the duty to pay a supervisory fee of One Hundred Twenty Dollars ($120.00) a year prorated at ten Dollars ($10.00) a month for the number of months that he is hereunder Supervision. This fee is payable to the Clerk of Court.

DATED this 4th day of June, 1996.

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

The Defendant was present and proceeded Pro Se. The state was represented by Dennis Paxinos, County Attorney from Billings.

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 remain as imposed except for the additional restriction that the defendant not be considered eligible for parole or other release until he has served 7 years of the sentence imposed. During such time, the defendant must successfully complete the anger management program, criminal thinking errors program and any other counseling deemed appropriate by the staff of Montana State Prison.

The reasons for the restriction are because the defendant exhibited absolutely no remorse or concern for the victim of this offense during his Sentence Review hearing, but did illustrate disdain for the victim and also has accepted no responsibility for his actions.

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Jorge Torres for representing himself in this matter and also Dennis Paxinos, County Attorney from Billings, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Russell VanKirk, Defendant.
    NO. DC 94-40 & DC 95-02
    DECISION
   On February 21, 1996, it was the sentence and judgment of the Court as follows: That Russell VanKirk is guilty of violating the terms of his deferred sentence by his plea and the deferred imposition is hereby revoked. That Russell VanKirk shall receive a ten (10) year sentence to the Montana State Prison on the charge of Criminal Endangerment in Cause No. DC 94-40 and a ten (10) year sentence to the Montana State Prison on the charge of Criminal Endangerment in Cause No. DC 95-02 to be served consecutively to each other and consecutively to the sentence imposed in Lewis & Clark County Cause No. ADC 95-150. This sentence shall be served without the possibility of parole or eligibility for special release provisions.

DATED this 4th day of June, 1996.

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

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

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

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

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

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. William Neis Swandal

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


text:
    STATE OF MONTANA, Plaintiff, vs. Russell VanKirk, Defendant.
    NO. BDC 95-156
    DECISION
   On December 7, 1995, it was ordered, adjudged and decreed that for the offense of Deliberate Homicide, a felony, the defendant is sentenced to Montana State Prison for a period of 100 years. It is further ordered, adjudged and decreed that for use of a weapon in the commission of an offense, the defendant is sentenced to Montana State Prison for a period of 10 years. The foregoing sentences shall run consecutively to each other. The defendant is denied eligibility for parole or suspended release, pursuant to Section 18-202, MCA.

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

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

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and requested, on the advise of his attorney, that his case be continued to the August hearings.

DATED this 4th day of June, 1996.

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. William Neis Swandal


text:
    STATE OF MONTANA, Plaintiff, vs. Holly Williams, Defendant.
    NO. DC 95-232
    DECISION
   On November 24,1995, it was ordered that the said defendant be committed to the Department of Corrections and Human Services pursuant to Section 46-18-201(e), Montana Code Annotated to be placed in an appropriate community based program, facility or a State Correctional Institution, for custody, care and treatment as follows: 1. On Count 1: Kidnapping (Felony) the defendant is hereby sentenced for the term of ten (10) years; It is further ordered that because the defendant, while engaged in the commission of the offense of Count I: Kidnapping (Felony) knowingly used a weapon, to wit: a knife; she is hereby sentenced to the term of three (3) years to the Department of Corrections under the authority of 46-18-221, Montana Code Annotated. This term shall be served consecutively with the term imposed for the commission of the crime of Count I: Kidnapping (Felony) as charged in the Second Amended Information. On Count II: Robbery (Felony) the defendant is hereby sentenced for the term of ten (10) years to run consecutively with Count I of this Criminal Cause; It is further ordered that because the defendant, while engaged in the commission of the offense of Count III: Robbery (Felony) knowingly used a weapon, to wit: a knife; she is hereby sentenced to the term of two (2) years to the Department of Corrections under the authority of 46-18-221, Montana Code Annotated. This term shall be served consecutively with the term imposed for the commission of the crime of Count III: Robbery (Felony) as charged in the Second Amended Information. Defendant shall receive credit for time spent in Johnson County, Buffalo, Wyoming, and the Yellowstone County Detention Facility at Billings, Montana, for a combined total of 27 days. It is further ordered that additional special conditions shall apply as stated in the November 24,1995 judgment.

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

The Defendant was present and proceeded Pro Se. The state was represented by Dennis Paxinos, County Attorney from Billings.

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

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

DATED this 4th day of June, 1996.

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

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lyrnpus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Holly Williams for representing herself in this matter and also Dennis Paxinos, County Attorney from Billings, for representing the State.


author: JUSTICE NELSON

text:
    STATE OF MONTANA, Plaintiff and Respondent, vs. LYLE D. ROBISON, Defendant and Appellant.
    No. 96-244.
    Submitted on Briefs January 2, 1997.
    Decided January 9, 1997.
    54 St.Rep. 61.
    281 Mont. 64.
    931 P.2d 706.

      For Appellant: Carrie L. Garber, Deputy Public Defender, Billings.
    For Respondent: Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General; Dennis Paxinos, Yellowstone County Attorney, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

Lyle D. Robison (Robison) appeals from a February 26, 1996, Yellowstone County jury verdict finding him guilty of driving under the influence of alcohol (DUI), a felony, in violation of § 61-8-401, MCA. We reverse and remand for a new trial.

The dispositive issue we address on appeal is whether the trial court properly instructed the jury as to the element of “actual physical control.” We hold that it did not.

Background

On November 24, 1995, Robison was charged in the Thirteenth Judicial District Court with felony DUI arising out of an incident occurring in the early morning hours of November 21,1995. Because we are remanding for a new trial, we will not address the facts in any detail, except to note that they were disputed and that, depending upon which witnesses the jury believed, it could have legitimately found Robison either guilty or not guilty.

Basically, it was the State’s evidence that Robison was found in a Billings parking lot sitting in the driver’s seat of an automobile with his body from the waist up slumped over into the passenger’s seat and with his feet near the pedals. The automobile appeared to be locked, the motor was running and the lights were on. Robison was asleep or passed out and had to be aroused by the investigating officer. There was little doubt, as Robison readily concedes, that he was heavily intoxicated — “pig drunk,” in his words.

Robison’s defense, however, was that he had become intoxicated in a local bar; that he had become acquainted with Jim Rutledge (Rutledge) who offered to and was in the process of driving Robison to his hotel; that Robison passed out in the car; and that he was awakened by the investigating officer. Robison maintained he was occupying the passenger’s seat with his legs sprawled on the driver’s side. Robison did not recall if the doors were locked but testified that the driver’s door had a mechanical problem that, from the outside, made it difficult to open and caused it to appear that the door was locked.

Rutledge testified that he, too, was drunk, but he confirmed Robison’s story, maintaining that he (Rutledge) was driving the automobile with Robison as the passenger. Rutledge stated that he had pulled into the parking lot to relieve himself. He saw the police car approaching, panicked, and ran off, leaving Robison asleep in the passenger’s seat with the motor running, the lights on, the parking brake engaged and the driver’s door unlocked.

Discussion

To convict Robison of DUI, the State must prove that he was (1) driving or in actual physical control of a vehicle; (2) upon the ways of this State open to the public; and(3) while under the influence of alcohol. Section 61-8-401, MCA. In this case, the only element in dispute is (1). Robison admits he was intoxicated in his automobile, but he denies that he was in actual physical control of his vehicle.

In State v. Ruona (1958), 133 Mont. 243, 321 P.2d 615, we explained that a person has actual physical control of a vehicle when:

[he] has existing or present bodily restraint, directing influence, domination or regulation, of an automobile. ...

Ruona, 321 P.2d at 618.

At Robison’s trial the State offered a proposed instruction regarding the element of actual physical control as follows:

“Actual physical control” means that a person has existing or present bodily restraint, directing influence, dominion or regulation of an automobile. Movement of the vehicle is unnecessary. The trial court, however, refused to give this proposed instruction

and, instead, with no objection from the State, but over objection of Robison, instructed the jury as to the element of actual physical control as follows:

“Actual physical control” means that a person has existing or present bodily restraint, directing influence, dominion or regulation of a motor vehicle. Movement of the vehicle is unnecessary. One may be in actual physical control of a motor vehicle if he is physically inside an operational motor vehicle with the potential to operate or drive that motor vehicle while under the influence of alcohol on the ways of this State open to the public.

The court stated that, in its opinion, it was necessary to expand the definition of “actual physical control” in this case because Robison was found passed out in the front seat and that the definition was expanded “to include the potential of [Robison] awakening and driving while still intoxicated.”

Robison contends that this jury instruction — specifically, the last sentence of the instruction — broadened our long-standing definition of “actual physical control” thereby rendering the judicially established meaning of “actual physical control” unconstitutionally vague and overbroad, both on its face and as applied in this case, and impermissibly shifted the burden of proof from the State to the defendant.

The State disagrees and contends that Robison’s interpretation of “actual physical control” is too restrictive. Relying on various cases in which this Court has upheld DUI convictions where the defendant was asleep or passed out behind the wheel, slumped onto the middle of the seat, alone in the vehicle and lying across the front seat or otherwise in a position to regulate the movements of the vehicle, the State maintains that the trial court’s instruction does not expand our definition of “actual physical control,” but is consistent with our prior decisions. We disagree.

Factually, this case is not unlike many of the scenarios described in the cases relied upon by the State. Indeed, had the court properly instructed the jury, Robison could properly have been found guilty of DUI — he was alone, asleep or passed out, in the front seat of an automobile, with the motor running and the lights on in a parking lot; he was clearly intoxicated. With a proper instruction on “actual physical control,” the jury could have convicted Robison of DUI on this record, believing that he had been driving or that he had dominion, directing influence or regulation of the vehicle. Rather, it is the additional language which the court added to the instruction on “actual physical control” — language not at issue in our prior decisions — that concerns us here.

We review jury instructions in a criminal case to determine whether the instructions, as a whole, fully and fairly instruct the fact finder on the law applicable to the case. State v. Leyba (1996), 276 Mont. 45, 51, 915 P.2d 794, 797. Moreover, district courts have broad discretion in formulating jury instructions. State v. Ross (1995), 269 Mont. 347, 358, 889 P.2d 161, 167.

In this regard, we note in passing that the language from Ruona referred to above, while not objected to by either the defense or the State, is perhaps not the most clear and understandable definition of “actual physical control.” Given the increasing numbers of DUI trials and felony DUI charges occasioned by 1995 legislative changes in the DUI laws, and in the absence of any statutory definition of “actual physical control,” it may be appropriate that the Criminal Jury Instruction Commission consider adopting a clearer and more understandable definition of this phrase as part of the model Montana Criminal Jury Instructions. That notwithstanding, we conclude that the trial court misstated the law and abused its discretion in instructing the jury on the element of “actual physical control” in the manner stated above.

As noted previously, the definition of “actual physical control” has been fleshed out by judicial interpretation and we have upheld DUI convictions in a variety of factual scenarios which did not involve the accused being arrested while actually driving a vehicle. See, for example, Ruona, 321 P.2d 615; State v. Taylor (1983), 203 Mont. 284, 661 P.2d 33; State v. Ryan (1987), 229 Mont. 7, 744 P.2d 1242; Turner v. State (1990), 244 Mont. 151, 795 P.2d 982; Gebhardt v. State (1989), 238 Mont. 90, 775 P.2d 1261; State v. Peterson (1989), 236 Mont. 247, 769 P.2d 1221.

Had the court instructed on the element of “actual physical control” in the language offered by the State, the jury may well have found Robison guilty on the factual record. To do so, however, it would have had to disbelieve Robison’s and Rutledge’s testimony that Rutledge, not Robison, was at all times the driver of the automobile. That, of course, would have been the jury’s prerogative.

It does not take much in the way of legal analysis, however, to see that, under the jury instruction given by the court, even if the jury believed that Rutledge and Robison had testified truthfully, the jury still could have found Robison in actual physical control of the vehicle and, therefore, guilty of DUI under the facts here. The mischief in the court’s instruction is the following language which it added to the instruction proposed by the State:

One may be in actual physical control of a motor vehicle if he is physically inside an operational motor vehicle with the potential to operate or drive that motor vehicle while under the influence of alcohol on the ways of this State open to the public.

Under this statement of the law, even if Robison was, in truth, simply an intoxicated passenger in the vehicle and had never driven it while intoxicated, he was, nevertheless, “physically inside an operational motor vehicle with the potential to operate or drive that motor vehicle while under the influence of alcohol on the ways of this State open to the public,” and, therefore, in “actual physical control” under the court’s instruction.

Obviously, the offense of DUI is directed at the driver of the vehicle, not at other persons who, while intoxicated, might legitimately happen to be passengers in the vehicle. For example, assume that Mary, Joe, Betty and Bill are out on the town. Mary is the designated driver and has not consumed any intoxicant. Joe, Betty and Bill, however, are all intoxicated. On the way home Mary is driving, Joe is in the front passenger seat and Betty and Bill are in the rear seat. Mary stops at a gas station to use the restroom, leaving Joe, Betty and Bill sitting in the car with the windows down, the motor running and the lights on, singing “99 bottles of beer on the wall”, with enough gusto that leaves no doubt as to their lack of sobriety. At this point, Officer Smith arrives on the scene and properly concludes that all three are intoxicated. Under the court’s instruction, Joe, Betty and Bill are each “physically inside an operational motor vehicle with the potential to operate or drive that motor vehicle while under the influence of alcohol on the ways of this State open to the public,” and are, therefore, in “actual physical control” of the vehicle for purposes of DUI. Each could be charged with and convicted of DUI without any evidence, direct or circumstantial, that any one of them had ever actually operated the vehicle while intoxicated. In short, DUI would encompass not only an intoxicated driver but all intoxicated passengers as well. Simply put, an intoxicated person could never risk setting foot in a vehicle even for the legitimate purpose of simply being a passenger.

Under the circumstances, we agree that the court’s instruction impermissibly broadened the judicial definition of “actual physical control” to include, as a practical matter, every intoxicated occupant of a vehicle whether or not he or she was or ever had been operating the vehicle. We hold that, in so doing, the court misstated the law defining “actual physical control” and that it abused its discretion in instructing the jury in the manner that it did.

Reversed and remanded for new trial.

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


text:
    STATE OF MONTANA, Plaintiff, vs. Patricia Wing, Defendant.
    NO. DC 95-102
    DECISION
   On February 27,1996, it was ordered that the said defendant is hereby committed to the Montana Department of Institutions, to be placed in a correctional facility for women, to be designated by the Department, for the term of eight (8) years for the offense of Escape, a Felony. It is further ordered that the defendant shall pay to the Clerk of District Court the sum of Twenty Dollars ($20.00) for this conviction pursuant to statute 46-18-236, Montana Code Annotated, plus the sum of Five Dollars ($5.00) for Court Automation Surcharge. The Clerk of District Court is hereby ordered to deliver the said sum of Twenty-Five ($25.00) to the Treasurer of this County. It is further Ordered, Adjudged and Decreed that if the defendant fails to comply with any of the conditions, a bench warrant of arrest will be issued, the defendant apprehended, and the said defendant will be required to appear before this Court for further proceedings.

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

The Defendant was present and proceeded Pro Se. The state was represented by Dennis Paxinos, County Attorney from Billings.

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 froma decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she 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, Patricia Ann Wing, is committed to the Women’s Correctional System for a term of ten (10) years. This sentence shall run consecutive to any prior sentences. All other conditions (Fees to be paid) as stated in the February 27, 1996 judgment shall remain the same.

The reason for the amendment is because this is the defendant’s third escape from an institution.

Done in open Court this 23rd day of May, 1996.

DATED this 4th day of June, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Patricia Ann Wing for representing herself in this matter and also Dennis Paxinos, County Attorney from Billings, for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. Janene Louise Wirth, Defendant.
    NO. 11998
    DECISION
   On March 13,1996, it was the judgment of the Court that Janene Louise Wirth be and is herby committed to the Department of Corrections for a term of five (5) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. The sentence shall run consecutively to the sentence imposed in Ravalli County. It is the recommendation of the Court that as a condition of any parole or early release the defendant shall reimburse Missoula County for her court appointed attorney in the amount of Fifty Dollars ($50.00); that the defendant shall pay a fee in the amount of Twenty Dollars ($20.00) to go to the County Attorney Surcharge Fund as provided in Section 46-18-236, M.C.A.; that the defendant shall pay the cost of prosecution in the amount of One Hundred Dollars ($100.00); that the defendant shall pay a Court technology fee, pursuant to Section 3-1-317(1) (a), M.C.A., in the amount of Five Dollars ($5.00); that the defendant shall pay the cost of incarceration in the amount of One Thousand Six Hundred Twenty Dollars ($1,620.00) (36 days @ $45 per day); that the defendant may perform community service for one-half of the cost of incarceration as directed by the Community Service Program Coordinator; and that the defendant shall pay a probationary supervision fee in the amount of Ten Dollars ($10.00) per month or One Hundred Twenty Dollars ($120.00) per year, pursuant to Section 46-23-1011, M.C.A All of the above costs shall be paid through the Clerk of the District Court and according to a schedule as set by her Probation Officer. Defendant shall receive credit for time served at Missoula County Jail from February 5, 1996, through date of sentencing, March 13,1996, in the amount of thirty-eight (38) days.

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

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

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

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

DATED this 4th day of June, 1996.

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

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Janene Louise Wirth for representing herself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Janene Louise Wirth, Defendant.
    NO. CR 94-01 & CR 94-04
    DECISION
    DATED this 4th day of June, 1996.
   On January 31, 1996, it was the judgment of the Court as follows: 1. That the defendant is guilty of violating the terms and conditions of the deferred imposition of sentence imposed April 13, 1996, and the deferred imposition of sentence is hereby revoked; 2. The defendant is committed to the Department of Corrections and Human Services for appropriate placement into a community-based program, facility or the State Correctional Institution for women, for a period of five (5) years on each case, to run consecutively, for a total of ten (10) years. 3. The defendant will repay the cost of the public defender appointed for these revocation proceedings, in the amount of $121.31; The Corut hereby recommends the defendant not be considered for discharge until she has successfully completed every drug treatment program and option reasonably available to the Department. Further, that the defendant not be considered for release until she has developed an appropriate plan to repay any remaining financial obligations set forth in the sentence imposed April 13,1994, as well as those above. The defendant shall receive credit for thirty (30) days for jail time served prior to sentencing.

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

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

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

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

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

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Janene Louise Wirth for representing herself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Amy E. Woldstad, Defendant.
    NO. 11087
    DECISION
    DATED this 4th day of June, 1996.
   On March 4, 1996, the Court found the defendant in violation of the conditions of her suspended sentence and the Court now having been fully advised as to the facts of the case, it is the judgment of the Court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and she is hereby committed to the Department of Corrections for a term of ten (10) years for suitable placement, which may include an appropriate community based program, facility, or a State Correctional Institution. The sentence shall run concurrently with the Department of Corrections’ commitment in Cause No. 11704. Due to the defendant’s failure to comply with the terms and conditions of her suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that she is not entitled to receive, and shall not receive, credit for any elapsed time between the date of her conviction and the date of this Order, except that she shall receive credit from March 5,1994 (in and out same day); from January 18,1995, through January 27,1995; from June 29,1995, through July 13,1995; and from December 13,1995, through date of sentencing, March 4,1996, for one hundred nine (109) days jail time which she has previously served.

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

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

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

It is the unanimous decision of the Sentence Review Division that the petition shall be dismissed without prejudice.

Done in open Court this 23rd day of May, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal


text:
    AUGUST 1996 CALENDAR
    STATE OF MONTANA, Plaintiff, vs. William Jay Allen, Defendant.
    NO. DC 94-71
    DECISION
   On February 8, 1995, the Court ordered that pursuant to MCA 45-5-401(l)(b) and MCA46-18-502, Defendant is hereby sentenced for the present offense of Robbery and designated a Persistent Felony Offender to confinement in the Montana State Prison for a term of sixty (60) years, with none of that time suspended. The Court further orders that Defendant shall be sentenced to an additional ten (10) years at the Montana State Prison for the use of a weapon in the commission of this offense as provided by MCA 46-18-221. The ten (10) year sentence shall run consecutive to the sentence imposed above, for a total of seventy (70) years in the Montana State Prison, with none suspended. The Court designated Defendant a dangerous offender for purposes of parole eligibility under MCA46-18-404. Defendant shall receive credit for time served in the Lake County Jail, which as of the date of Judgment totaled one hundred eighty-eight (188) days. The Court recommended to the Department of Corrections that Defendant receive mental health and anger management control counseling as a prerequisite to his being considered for parole. The Court further ordered that Defendant shall pay a surcharge of twenty dollars ($20.00), as required by law, which shall be paid to the Clerk of the District Court.

On August 22,1996, Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

Defendant was present via telephone conference call and was represented by Sharon Noel, legal intern with the Montana Defender Project. The State was not represented.

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

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

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

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

DATED this 23rd day of September, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Sharon Noel, legal intern of the Montana Defender Project for representing William Allen in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Robbie Lamar Anderson, Defendant.
    NO. DC 7575
    DECISION
    DATED this 16th day of September, 1996.
   On March 6,1996, the Court found the defendant in violation of the conditions of his suspended sentences for the offenses of Count I and II: Forgery, a Felony, and it is the judgment of the Court that defendant’s prior suspended sentences are hereby revoked and that the defendant be and he is hereby sentenced to a term of ten (10) years on each count in the Montana State Prison at Deer Lodge, Montana. The sentences shall run concurrently with each other. The defendant shall receive credit in the amount of one hundred eighty-three (183) days.

On August 22, 1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Robbie Lamar Anderson for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. Anthony R. Aragon, II, Defendant.
    NO. CDC 95-315
    DECISION
    DATED this 23rd day of September, 1996.
   On March 28, 1996, it was ordered, adjudged and decreed that for the offense of Deliberate Homicide, a felony, the defendant is sentenced to Montana State Prison for a period of fifty (50) years. It is further ordered, adjudged and decreed that, pursuant to Section 46-18-221, MCA, for the use of a weapon in the commission of an offense, the defendant is sentenced to Montana State Prison for a period often (10) years. The foregoing sentences shall run consecutively to each other. The Court recommends the defendant be ineligible for parole consideration until he has entered and successfully completed the following programs: criminal thinking errors/moral reconation therapy; anger management; and chemical dependency treatment. The defendant is granted 122 days’ credit for time served prior to sentencing.

On August 22, 1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present per phone conference call and proceeded Pro Se. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the application shall be dismissed without prejudice.

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

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal