text:
    STATE OF MONTANA, Plaintiff, vs. DARREN JAMES BROWN, Defendant.
    NO. 1346
    DECISION
   On June 2, 1992, the Defendant was sentenced to ten (10) years for COUNT I, Obstructing Justice; ten (10) years for COUNT II, Negligent Homicide; ten (10) years for COUNT III, Criminal Endangerment. Terms are to run consecutively with 10 years of the aggregate prison sentence suspended subject to conditions as listed in the June 2,1992 Judgment. The defendant is designated as a dangerous offender. Credit is given for 21 days time served.

On March 24, 1994, 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 Mark Yeshe, Attorney at Law, from Helena, Montana. The state was represented by Richard Llewellyn, Jefferson County Attorney.

DATED this 24th day of March, 1994.

Judge Baugh informed counsel that this matter has been remanded back to the District Court for consideration of restitution. Considering the fact that the restitution has not yet been resolved, Judge Baugh asked counsel, Mark Yeshe, if he wished to go forward with sentence review. His response was, "yes, they wished to go forward at this time."

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the original sentence be affirmed with modifications as follows: the defendant shall be ineligible for parole or participation in a supervised release program prior to serving eight (8) years of his sentence. All other portions of the sentence shall remain the same.

The reason for the decision is the amendment is necessary so the original sentence can remain consistent with what was contemplated by the plea agreement and the sentencing court. The original sentence was appropriate when rendered and remains so. The sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

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

They would also like to thank Mr. Llewellyn for appearing on behalf of the State of Montana.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. SHANE WARD, Defendant.
    NO. DC 93-318
    DECISION
   On November 18,1993, the Defendant was sentenced to ten (10) years at Montana State Prison for the crime of Burglary, a Felony. It is recommended that the defendant be considered for acceptance into the Swan River Correctional Training Center. Defendant shall pay a surcharge of $20 plus pay a supervisory fee of $120 a year prorated at $10 a month for the number of months that he is hereunder supervision.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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

DATED this 24th day of March, 1994.

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Shane Ward for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. MONTY B. HOUSEMAN, Defendant.
    NO. DC 91-522
    DECISION
    DATED this 24th day of March, 1994.
   On December 28, 1993, the suspended sentence for Burglary was revoked, and defendant was sentenced to serve the remainder of ten (10) years in the Montana State Prison, for the remainder of the balance of the suspended sentence dated the 7th day of July, 1992. Credit shall be given in the amount of 50 days for time served. It is recommended that the defendant not be eligible for parole until he has successfully enrolled in and completed, the Intensive Treatment Unit, Anger Management Counseling, Criminal Thinking Errors, and In-patient treatment at the Montana Chemical Dependency Center.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Monty Houseman for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. JASON ALLEN HIBBITT-SMITH, Defendant.
    NO. DC 93-275
    DECISION
    DATED this 24th day of March, 1994.
   On October 1,1993, the Defendant was sentenced to serve five (5) years at Montana State Prison for the offense of Criminal Endangerment, a Felony. Defendant also received five (5) years at Montana State Prison for the use of a firearm. These two sentences shall be served consecutively. The defendant shall receive credit for (7) seven days time served. It is further ordered that should the defendant be paroled he must abide by the conditions set out in the October 1,1993 Judgment.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Jason Hibbitt-Smith for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. JOHN KELLY LIEDES, Defendant.
    NO. DC 91-6
    DECISION

      DATED this 24th day of March, 1994.
   On July 27, 1992, the Defendant was sentenced to twenty (20) years at Montana State Prison for COUNT I, the crime of INCEST^ and twenty (20) years at the Montana State Prison for COUNT III, the crime of INCEST. The sentences shall run consecutively. The defendant shall abide by the requirements and conditions as listed in the July 27,1992 Judgment.

On March 24, 1994, 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 Kenneth Olson, Attorney at Law, from Great Falls. The state was not represented.

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

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


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES DAVID NICHOLS, Defendant.
    NO. ADC-86-014
    DECISION
   On August 27, 1993, the Defendant’s sentence for Sexual Intercourse Without Consent was revoked and the defendant shall be returned to the Department of Corrections for placement. The Defendant is hereby given credit for 68 days time served. On February 3,1987, the defendant was sentenced to a period of ten (10) years, with five (5) years suspended for the offense of SEXUAL INTERCOURSE WITHOUT CONSENT, A FELONY.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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

DATED this 24th day of March, 1994.

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

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


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT A. MEYERS, Defendant.
    NO. ADC-93-096
    DECISION
    DATED this 24th day of March, 1994.
   On November 12,1993, the Defendant was sentenced to Montana State Prison for a period of ten (10) years, for the crime of COUNT I, Assault, a Felony. It is further ordered that the defendant be sentenced to Cascade County Detention Center for a period of six (6) months, for the crime of COUNT II, Criminal Mischief, a Misdemeanor. It is further ordered that the defendant be sentenced to Cascade Counfy Detention Center for a period of six (6) months, for the crime of COUNT III, Criminal Trespass, a Misdemeanor. The sentences given for Count II and Count III are to run concurrent with Count I. The defendant is given credit for time already served in the Cascade County Detention Center, a total of 212 days. If the defendant makes parole he must abide by the conditions as set out in the November 12,1993 Judgment.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Robert Meyers for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT LAWRENCE THRASH, Defendant.
    NO. CDC-88-262
    DECISION
    DATED this 24th day of March, 1994.
   On October 13, 1993, the Defendant was sentenced to ten (10) years in Montana State Prison. The defendant is given credit for elapsed time of one (1) year; the defendant is given credit for jail time of ninety-five (95) days.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner Emd Hon. Ted Lympus, Members.

The Sentence Review BoEird wishes to thank Mr. Thrash for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. MICHAEL JAMES BIRKLAND, Defendant.
    NO. CR-93-18
    DECISION
   On December 2,1993, the Defendant was sentenced to a term of eight (8) years for COUNT I, Forgery, a Felony and six (6) months on COUNT II, Theft, a Misdemeanor. Said sentences shall be served consecutively. However, said sentences shall be served concurrently with the sentence imposed in Cascade County on October 27, 1993, in cause #93-179. The defendant is designated as a dangerous offender. Credit is given for 90 days confinement that he served since his arrest in the Park County Jail. Defendant shall make restitution of $780, plus $220 to the victims. Plus other conditions as listed in the December 2,1993 Judgment.

DATED this 24th day of March, 1994.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the petition for sentence review is dismissed without prejudice with leave to refile his application for sentence review.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.


text:
    STATE OF MONTANA, Plaintiff, vs. THOMAS BURLAND, Defendant.
    NO. DC 89-75
    DECISION
   On January 26,1994, the Defendant was sentenced to seven (7) years for COUNT I, Criminal Sale of Dangerous Drugs, a felony, with two (2) years suspended; and seven (7) years for COUNT II, Criminal Sale of Dangerous Drugs, a felony, with two (2) years suspended. The sentences shall run consecutively, for a total of fourteen (14) years to be served with four (4) suspended upon conditions as stated in the January 26, 1994 Judgment. Credit received for time served which totals eighteen (18) days. The Court recommends that the Defendant not be considered eligible for parole until he has successfully completed the Addictive Diseases Study Program at the Montana State Prison.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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

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

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

DATED this 24th day of March, 1994.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Thomas Burland for representing himself in this matter.


author: JUSTICE TRIEWEILER JUSTICE GRAY,

text:
    WILLIAM G. SHULL, d/b/a GAMO, Plaintiff, Appellant, and Cross-Respondent, v. FIRST INTERSTATE BANK OF GREAT FALLS, a corporation; ZYCOM, INC.; CAPITAL DEVELOPMENT COMPANY; NORTH CENTRAL GAMING CO., a Montana corporation, Defendants and Respondents, and THOMAS C. HABETS, Defendant, Respondent, and Cross-Appellant.
    No. 93-619.
    Submitted on Briefs October 28, 1994.
    Decided December 15, 1994.
    51 St.Rep. 1345.
    269 Mont. 32.
    887 P.2d 193.

      For Appellants: Joe Bottomly and Anne Biby, Bottomly Law Office, Kalispell.
    For Respondents: Robert J. Emmons, Emmons & Sullivan, Great Falls; (for Zycom, Inc., and Capital Development Company) Gary S. Deschenes, Deschenes Law Office, Great Falls; (for Thomas C. Habets).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Appellant William G. Shull, d/b/a Gamo, filed a complaint on April 19, 1988, in the District Court for the Eighth Judicial District in Cascade County against First Interstate Bank of Great Falls, Zycom, Inc., Capital Development Company, North Central Gaming Company, and Thomas C. Habets. In his complaint, Shull alleged breach of contract, bad faith, negligence, tortious interference with contract, and breach of fiduciary duty. On June 7, 1993, after a trial, the jury found that First Interstate Bank breached its lease agreement with Shull. The District Court ordered First Interstate Bank to pay Shull contract damages, attorney fees, and costs. The jury found that Zycom did not breach the contract, and the District Court ordered Shull to pay Zycom’s attorney fees and costs. Shull appeals that part of the District Court’s order which awarded attorney fees and costs to Zycom. We reverse that part of the District Court’s order.

Cross-appellant Thomas Habets requested that the District Court set aside or amend its judgment and impose Rule 11, M.R.Civ.P., sanctions against Shull and his attorneys. The District Court denied this motion. We affirm the District Court’s denial of sanctions.

The following issues are raised on appeal:

1. Did the District Court err when it awarded attorney fees and costs to Zycom?

2. Did the District Court err when it denied Habets’ motion for an award of sanctions against'Shull and his attorneys pursuant to Rule 11, M.R.Civ.P.?

3. Should sanctions be imposed against Habets for filing a frivolous appeal?

FACTUAL BACKGROUND

William G. Shull leased space in the Great Falls Westgate Shopping Center from First Interstate Bank on September 28, 1984, for the operation of a video arcade, known as Gamo. The agreement provided for a three year lease with the option to renew for an additional three years. The agreement also gave Shull the exclusive right to operate a video arcade in Westgate.

After approximately three years, Shull expressed his intent to exercise the option to renew his lease. However, a new lease agreement was not provided; as a result, Shull stated in a letter to Westgate’s manager that he assumed that his old lease would remain in force until a new one was signed.

On December 29, 1987, First Interstate assigned the leases in Westgate to Zycom, Inc., a Washington corporation. Zycom then leased space to another video arcade. Shull was informed that his lease was a month-to-month tenancy, and in March 1988, he was notified that his tenancy was terminated.

On April 19,1988, Shull filed a complaint against First Interstate Bank, Zycom, Inc., Capital Development Company, North Central Gaming Company, and Thomas C. Habets. Shull asserted claims based on breach of contract, bad faith, negligence, and tortious interference with contract against First Interstate. Shull asserted claims based on breach of contract, bad faith, and tortious interference with contract against Zycom and Capital Development Company (Zycom’s successor). Shull also asserted claims based on bad faith, tortious interference with contract, and breach of fiduciary duty against North Central Gaming Company (the company that owned and maintained Gamo’s video machines), and Thomas Habets, North Central Gaming Company’s owner. Shull also alleged that First Interstate, North Central Gaming Company, and Habets conspired to interfere with his contractual rights. He requested compensatory damages for loss of past, present, and future income and profits from Gamo, lost business opportunities, and the lost value of his exclusive right to a video arcade at Westgate. Shull also requested punitive damages, attorney fees, and costs.

Shull moved the District Court to conclude by partial summary judgment that he had validly exercised his option to renew his original lease. The defendants moved the District Court to conclude by summary judgment that the option had not been validly exercised. On February 21, 1991, the District Court granted Shull’s motion for partial summary judgment, and held that Shull had validly renewed his three year lease agreement with Zycom by the time that he was evicted. After trial, First Interstate was found by the jury to have breached that agreement. However, the jury found that Zycom had not breached the agreement.

Shull’s lease agreement provided that if Shull breached the agreement he would have to pay attorney fees and costs caused by his breach. Section 21, paragraph C, of Shull’s lease provides that:

In the event of any breach hereinunder by Tenant, Landlord may immediately or at any time thereafter, without notice, cure such breach for the account and at the expense of Tenant. If Landlord at any time, by reason of such breach, is compelled to pay, or elects to pay, any sum of money or do any act which will require the payment of any sums of money, or is compelled to incur any expense, including reasonable attorney’s fees, in instituting or prosecuting any action or proceeding to enforce Landlord’s rights hereunder, the sum or sums so paid by Landlord, with interest thereon at the rate of twelve percent (12%) per annum from the date of payment thereof, shall be deemed to be additional rent hereunder and shall be due from Tenant to Landlord on the first day of the month following the payment of such respective sums or expenses.

Pursuant to § 28-3-704, MCA, the attorney fees provision is reciprocal; consequently, Shull had the same contract rights to attorney fees and costs that First Interstate had.

On September 16, 1993, pursuant to the jury’s verdict and post-trial motions, the District Court ordered that judgment be entered in favor of Shull and against First Interstate in the amount of $5818.75; and that Shull be awarded costs in the amount of $3144.84, and attorney fees in the amount of $21,044.16; however, the amount of attorney fees awarded to Shull was later reduced. It was also ordered that judgment be entered in favor of Habets and North Central Gaming Company. Shull was ordered to pay $40 in costs to both Habets and North Central Gaming Company. Finally, it was ordered that judgment be entered in favor of Zycom and Capital Development Company and against Shull, and that Shull pay costs in the amount of $479.75 and attorney fees in the amount of $14,413.50 to Zycom.

Shull was awarded attorney fees and costs pursuant to the reciprocity rule found at § 28-3-704, MCA. Zycom was awarded attorney fees and costs for unspecified reasons, but claims a right to that award as the “prevailing party” under the same rule.

On September 30, 1993, Habets filed a motion to set aside and amend the District Court judgment and requested that Rule 11 sanctions be imposed on Shull and his attorneys. The District Court denied Habets’ motion. Habets appeals only the denial of his motion for the imposition of sanctions.

Habets’ motion for sanctions is based on Shull’s bankruptcy proceeding. In 1985, Shull was unable to meet his financial obligations and was forced to file for Chapter 11 reorganizational bankruptcy. During that time, Habets supplied and serviced video games in Shull’s Westgate Mall video arcade.

Shull listed his assets with the bankruptcy court, including the Gamo video arcade, but did not list Gamo as a partnership. The affidavit of Shull’s attorney indicates that Shull’s bankruptcy reorganization was confirmed on April 8,1987.

Later, when filing this action, Shull’s attorney formed the opinion that Shull may have had a de facto partnership with Habets, and on that basis, filed his claim for breach of fiduciary duty. Habets asserts that sanctions should be imposed against Shull and his attorneys for arguing inconsistent positions in two separate cases. Shull’s attorneys argue that Shull did not even know that there was such a thing as a de facto partnership when he filed for Chapter 11 reorganization, and that neither they nor Shull acted in bad faith. The District Court denied Habets’ motion for sanctions.

ISSUE 1

Did the District Court err when it awarded attorney fees and costs to Zycom?

The standard of review of a district court’s conclusions of law is whether the district court’s interpretation of the law was correct. In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93, (citing In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619).

We have generally held that attorney fees cannot be recovered unless they are provided for by statute or contract. “[I]n the absence of a statutory or contractual provision, attorney fees are not recoverable.” Wyman v. DuBray Land Realty (1988), 231 Mont. 294, 297, 752 P.2d 196, 198 (citing Sliters v. Lee (1982), 197 Mont. 182, 184, 641 P.2d 475, 476). Zycom argues that it is entitled to attorney fees and costs as a prevailing party pursuant to § 28-3-704, MCA. However, as the assignee of First Interstate’s rights under the lease agreement, Zycom’s rights are those set forth in the agreement. Pursuant to the contract, First Interstate could only recover costs and fees in the event of Shull’s breach of the contract.

Section 21, Paragraph C, of Shull’s lease agreement with First Interstate provides in relevant part as follows:

In the event of any breach hereinunder by Tenant, Landlord may immediately ... cure such breach ... at the expense of Tenant. If Landlord at any time ... is compelled to pay, or elects to pay, any sum of money ... or is compelled to incur any expense, including reasonable attorney’s fees, in instituting or prosecuting any action or proceeding to enforce Landlord’s rights hereunder, the sum or sums so paid by Landlord ... shall be deemed to be additional rent hereunder and shall be due from Tenant to Landlord ....

The reciprocal attorney fee statute provides rights only to that party whose rights are not provided for in the contract. We have previously addressed this same issue in Sliters v. Lee (1982), 197 Mont. 182, 641 P.2d 475. In that case, Lee executed a promissory note in favor of Ross which provided that Ross was entitled to attorney fees, if incurred to enforce collection of the note. Ross later assigned his interest in the note to Sliters. Lee refused to pay the note when due, and Sliters sued him for collection. Lee filed a third-party complaint against Ross alleging fraudulent inducement for the note, wrongful assignment of the note, and lack of consideration.

Sliters prevailed in its claim to recover for payment of the note, and Ross prevailed in his defense against Lee’s third-party complaint. Ross then successfully contended in the district court that he was entitled to an award of attorney fees under the same reciprocal attorney fee statute relied upon by Zycom in this case. The district court agreed; however, we reversed. We held that:

Ross’s right to attorney fees was not derived by virtue of any reciprocal right under the statute. Lee was the maker of the note and was granted no right to attorney fees thereunder. As payee of the note, Ross was the only party granted any right to attorney fees, under the provisions of the note.
Thus Ross’s right to attorney fees must stand or fall upon the provisions of the note. Ross assigned all his right, title and interest in the note to Sliter’s, leaving him no remaining contractual right to attorney fees under the provisions of the note. Moreover, Lee’s third party complaint against Ross alleged fraudulent inducement for the note, wrongful assignment, lack of consideration and sought to require Ross to pay Sliter’s the amount owing on the note together with damages and attorney fees. It was not an action for collection of the note for which attorney fees were expressly provided. Thus Ross was not entitled to an award of attorney fees under the provision of the note.

Sliters, 641 P.2d at 476 (emphasis added).

Likewise, in this case, Shull had no right to attorney fees under the lease agreement, and Zycom’s right to attorney fees could not be a reciprocal right under the statute. It had those rights provided for under the contract assigned to it by First Interstate. Therefore, Zycom was only entitled to attorney fees and costs if Shull breached the lease, and Zycom incurred attorney fees or costs to enforce the terms of the lease. Shull did not breach the lease, therefore, Zycom is not entitled to attorney fees or costs. We will not expand § 28-3-704, MCA, to allow attorney fees and costs to Zycom simply for prevailing on a contract claim, when the contract, by its plain language, limits the circumstances under which its attorney fees and costs are recoverable. For these reasons, the judgment of the District Court which awarded Zycom attorney fees and costs is reversed.

ISSUE 2

Did the District Court err when it denied Habets’ motion for an award of sanctions against Shull and his attorneys pursuant to Rule 11, M.R.Civ.R?

We review a district court’s conclusions regarding Rule 11, M.R.Civ.R, sanctions for an abuse of discretion. Wise v. Sebena (1991), 248 Mont. 32, 38, 808 P.2d 494, 498 (citing D’Agostino v. Swanson (1990), 240 Mont. 435, 446, 784 P.2d 919, 926).

We have held that the Montana Rules of Civil Procedure allow sanctions to be imposed on two grounds: “(1) if a pleading is frivolous, i.e., not ‘well grounded in fact’ or ‘warranted by existing law ...’ or (2) if a pleading is ‘interposed for any improper purpose ....’ ” Wise, 808 P.2d at 498. We have also held that “[district courts have ‘wide latitude to determine whether the factual circumstances of a particular case amount to frivolous or abusive litigation tactics ....’ ” Wise, 808 P.2d at 498 (quoting D’Agostino, 784 P.2d at 926).

Habets claims that Shull and his attorneys knew, after reasonable inquiry, that there was no basis well grounded in fact or warranted by existing law to support their position that a partnership existed between Shull and Habets.

Shull and his attorneys respond that their claim that a de facto partnership existed was made in good faith and was well grounded in fact and existing law since it fit within the statutory definition of a partnership. Shull also points out that the District Court refused to grant Habets’ motion for summary judgment on the question of whether a partnership existed.

We conclude that the District Court did not abuse its discretion. The judgment of the District Court which denied Habets’ motion for sanctions is affirmed.

ISSUE 3

Should sanctions be imposed against Habets for filing a frivolous appeal?

We have held that “[w]here a reasonable ground for appeal exists no sanctions under Rule 32 [M.RApp.P.] will be imposed.” Searight v. Cimino (1988), 230 Mont. 96, 103-04, 748 P.2d 948, 952 (citing Erdman v. C & C Sales, Inc. (1978), 176 Mont. 177, 184, 577 P.2d 55, 59).

Shull moved for the imposition of sanctions against Habets for frivolously appealing the denial of his motion for sanctions. Rule 32, M.R.App.R, states that “[i]f the supreme court is satisfied from the record and the presentation of the appeal... that the [appeal] ... was taken without substantial or reasonable grounds ... damages may be assessed ....” In this case, based on the record, we are not satisfied that Habets’ appeal was taken without substantial or reasonable grounds. We conclude that sanctions against Habets are not appropriate.

The judgment of the District Court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and WEBER concur.

JUSTICE GRAY,

concurring in part and dissenting in part.

I concur in the Court’s opinion on issues two and three. I respectfully dissent on issue one, whether the District Court erred in awarding attorney fees to Zycom. It is my view that the Court improperly relies on our decision in Sliters as authority for resolution of the issue before us; in doing so, it fails to address other language from Sliters which forms the basis for an appropriate analysis of the language of § 28-3-704, MCA, and the application of that language to this issue.

I agree that, in Montana, attorney fees cannot be recovered unless so provided by statute or contract. I also agree that, initially, Zycom’s right to attorney fees is that provided in the Shull-First Interstate lease; as assignee of First Interstate, Zycom was entitled to attorney fees in the event Shull breached the lease.

I disagree with the Court’s determination that Sliters addressed the issue of whether the party with the original contractual right to attorney fees can receive an “expanded” right under § 28-3-704, MCA, because Sliters is clearly distinguishable from the case now before us. There, Ross was the original payee of Lee’s promissory note and, under the note’s provisions, had a right to recover attorney fees incurred to enforce collection of the note. Ross assigned all of his interest in the note to Sliters. When Sliters sued Lee under the note, Lee filed a third-party complaint against Ross. Ross prevailed on Lee’s third-party claims and then sought attorney fees pursuant to § 28-3-704, MCA, for successfully defending against Lée’s claims.

We stated that Ross’ right to attorney fees “must stand or fall upon the provisions of the note.” Sliters, 641 P.2d at 476. We did so because Ross — having assigned all his interest in the note to Sliters — was left with “no remaining contractual right to attorney fees under the provisions of the note.” Sliters, 641 P.2d at 476. The case before us now presents an entirely different factual scenario. Here, Zycom remained a party to the lease as First Interstate’s assignee; as such, it clearly retained its original right to attorney fees under the lease.

In addressing Ross’ right to fees in Sliters, we also noted that Lee’s third-party complaint against him was not an action on the note itself. Sliters, 641 P.2d at 476. Thus, in Sliters, our discussion properly began and ended with the provisions of the note; § 28-3-704, MCA, never came into play. Here, Shull’s claim against Zycom was for a breach of the lease containing the attorney fee provision.

It is clear that, as a result of the factual scenario presented in Sliters, we did not reach the issue before us now — whether the party with the original contractual right to fees has, via application of § 28-3-704, MCA, the right to fees when it is sued under the contract and prevails. We did state in Sliters, however, that the statute “provides mutuality of obligation and remedy between the parties to a promissory note expressly providing for attorney fees.” Sliters, 641 P.2d at 476. We properly did not reach a conclusion there about the impacts of the statute because of the facts presented, where Ross retained no interest in the note and the action against him, on which he prevailed, was not on the note.

It is my view that the case before us — unlike Sliters — does require an analysis of the statute and our statement that the statute provides mutuality of both obligation and remedy, in order to determine whether Zycom has a right to attorney fees here. Briefly stated, Zycom’s argument for entitlement to those fees is that Shull clearly would have been entitled to fees had he prevailed in his breach of lease claim against it; as a result, according to Zycom, it is entitled to attorney fees as the prevailing party on Shull’s breach of lease action against it.

In pertinent part, § 28-3-704, MCA, provides that, in any action on a contract providing an express right to attorney fees to one party, “all parties to the contract... shall be deemed to have the same right to recover attorney fees and the prevailing party in any such action ... shall be entitled to recover his reasonable attorney fees from the losing party....” This statutory language is the basis for our statement in Sliters that the statute provides “mutuality of obligation and remedy” between all parties to a contract expressly providing a right to attorney fees to one party.

Applied here, the statute and our “mutuality of remedy” language in Sliters require us to affirm the District Court’s award of attorney fees to Zycom. A contract between Shull and Zycom existed, which provided an express right to attorney fees to Zycom. Shull brought an action against Zycom under the contract. At that point, § 28-3-704, MCA, came into play, all parties had the same right to attorney fees, and the prevailing party was entitled to recover those fees. Thus, had Shull prevailed on his breach of lease claim against Zycom, he would have been entitled to fees from Zycom as the prevailing party. Under the same analysis, Zycom is entitled to attorney fees here as the prevailing party in Shull’s action on the lease.

The Court’s inappropriate reliance on Sliters, and its consequent failure to analyze the issue before us in this case, produce an incorrect result. More importantly, the Corut’s action casts doubt on our “mutuality of obligation and remedy’ language and leaves our earlier “prevailing party” decisions under the statute in a state of confusion. I cannot agree. I would affirm the District Court’s award of attorney fees to Zycom.


text:
    STATE OF MONTANA, Plaintiff, vs. MONTE GALUSIA BENNETT, Defendant.
    NO. DC 91-164
    DECISION
    DATED this 24th day of March, 1994.
   On June 22,1992, the Defendant was sentenced to fifteen (15) years with ten (10) years suspended for the crime of INCEST. The defendant was not eligible for parole until he successfully completed the sex offender treatment. Credit was given for 3 days time served.

On May 6,1993, the defendant appeared before the sentence review board and his sentence was amended to fifteen (15) years straight time. The defendant shall not be eligible for parole until he successfully completes the sex offender treatment program at the Montana State Prison. Credit was given for three (3) days time served. An Amended Judgment was prepared and signed July 29,1993.

July 26, 1993, pursuant to Rule 22 of the Rules of the Sentence Review Division, Monte Bennett requested a rehearing. The rehearing was granted.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed May 6, 1993 by the Sentence Review Board.

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Monte Bennett for representing himself in this matter.


author: THE HONORABLE JOHN WARNER

text:
    STATE OF MONTANA, Plaintiff, vs. SHIRLEY ANN FORREST, Defendant.
    NO. C-629-5
    DECISION
    DATED this 25th day of March, 1994.
   On November 17, 1993, the Defendant was sentenced to six (6) years at Montana State Women’s Correctional Center for the offense of Escape, a Felony. This sentence shall run concurrent with a like term imposed in Mineral County in Cause No. C-616. Credit for 85 days served in the Mineral County Jail is given.

On March 25, 1994, 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 Barb Benson, Legal Intern from the Montana Defender Project. The state was not represented.

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

After careful consideration, there is a split decision by the Sentence Review Division. Judge Baugh and Judge Lympus vote to affirm the sentence as originally imposed.

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

Hon. G. Todd Baugh, Chairman, Hon. Ted Lympus, Member.

DISSENT)

THE HONORABLE JOHN WARNER

DISSENTS. He voted to modify the sentence to one year. The reasons are: (1) the record does not indicate that Judge Henson was aware of the effect the six year sentence would have on the defendant’s rehabilitation program; and (2) the one year sentence would bring the sentence more in conformity with the intent of the plea bargain.

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


text:
    STATE OF MONTANA, Plaintiff, vs. DENNIS LEON VALCOURT, Defendant.
    NO. ADC 91-131

      DATED this 25th day of March, 1994.
   On December 4,1991, the Defendant was sentenced to 40 years at Montana State Prison for COUNT II: Aggravated Burglary, a Felony. Defendant is denied any eligibility for parole.

On March 25, 1994, 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 Shane Reeley, Legal Intern from the Montana Defender Project. The state furnished a letter in opposition to a sentence reduction, but was not present.

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

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


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES ROBERT FRANK, Defendant.
    NO. CR 92 26
    DECISION
   On July 21,1993, the Defendant was sentenced to 10 years in Montana State Prison for the revocation of Theft, a felony. Credit of 123 days for time served in jail prior to sentencing.

On March 24, 1994, 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 Tammy Wyatt-Shaw, Legal Intern from the Montana Defender Project. The state was not represented.

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

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

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

DATED this 25th day of March, 1994.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

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


text:
    STATE OF MONTANA, Plaintiff, vs. CHARLES OWEN YOUNG, Defendant.
    NO. DC 93-175
    DECISION
    DATED this 25th day of March, 1994.
   On December 17,1993, the Defendant was sentenced to five (5) years at Montana State Prison for the offense of Stalking, a Felony. Credit for 68 days previously served at the Gallatin County Detention Center plus credit shall be given for additional days that the defendant shall serve at the Gallatin County Detention Center after December 16, 1993, until his transportation to the Montana State Prison. Dangerous offender status is given.

On March 25, 1994, 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 Alan Johnson, Legal Intern from the Montana Defender Project. The state was represented by Martin Lambert, Deputy County Attorney from Bozeman.

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Alan Johnson, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court, and they also wish to thank Martin Lambert for representing the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. JEFFERSON HERBERT HAWKINS, Defendant.
    NO. DC 93-113
    DECISION
    DATED this 4th day of April, 1994.
   On November 23, 1993, the Defendant was sentenced to seven (7) years for the offense of ISSUING A BAD CHECK, a Felony Common Scheme. Before the defendant can be considered for parole, he must undergo a chemical dependency evaluation and successfully complete any course of treatment deemed appropriate as a result of that evaluation; plus other conditions as listed in the November 23,1993 Judgment. Credit is given for sixty-six (66) days served in the Flathead County Detention Center.

On March 24, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same, except that alcohol treatment can be a part of his prerelease program.

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner, Member and Hon. Robert Boyd, Alternate Member.

The Sentence Review Board wishes to thank Jefferson Hawkins for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. CARVEL JASON BARR, Defendant.
    NO. 9004
    DECISION
   On December 19, 1990, the Defendant was sentenced to fifteen (15) years at Montana State Prison for Sexual Assault. The sentence shall run concurrent with the sentence imposed July 11,1990 for Count I, Theft, three (3) years deferred; and six (6) months each on Count II, Theft and Count III, Burglary in Cause No. DC 9004. All above sentences shall be served concurrently to each other. Upon completion of all phases of the sex offender treatment program at the Montana State Prison and after undergoing and completing chemical dependency evaluation and treatment at the Montana State Prison, the remainder of the sentence shall be suspended on the terms and conditions listed in the December 19,1990 Judgment. The defendant shall receive credit for time served at Missoula County Jail in the amount of two hundred eighty-nine days (289) days.

On May 6,1994, 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 Walt Hill, Legal Intern from the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be modified to (15) years at Montana State Prison for Sexual Assault. The suspended portion of the sentence, which was an indeterminant suspended portion in the sentencing judges’ order, is hereby eliminated. The condition that the defendant complete all phases of the sex offender treatment program at the Montana State Prison is removed. The Sentence Review Board imposes a condition that the defendant be released to the custody of the Department of Corrections so they can place him in a facility where he can complete sex offender treatment, and if he has in good faith completed the treatment, as intelligently as he is capable of, then he will be considered for parole. The conditions listed in the December 19,1990 Judgment will remain the same as originally imposed where applicable. The sentence shall run concurrent with the sentence imposed July 11,1990 for Count I, Theft, three (3) years deferred; and six (6) months each on Count II, Theft and Count III, Burglary in Cause No. DC 9004. All above sentences shall be served concurrently to each other. The defendant shall receive credit for time served at Missoula County Jail in the amount of two hundred eighty-nine days (289) days.

DATED this 6th day of May, 1994.

The reasons for the decision are: (1) the defendant has a limited I.Q. and has borderline intelligence, therefore, it appears he cannot master Phase II of the sex offender program at the Montana State Prison; (2) the defendant shall be released to the Department of Corrections, because it is the belief of the Sentence Review Board that the defendant may be a high risk to reoffend, and the Department of Corrections will have the authority to place him in a facility where society can best be protected.

Hon. 6. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Walt Hill of the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. RORY JAY CASTLE, Defendant.
    NO. 10704
    DECISION
    DATED this 6th day of May, 1994.
   On January 5, 1994, the Defendant was sentenced to a term of twenty (20) years on Count I, Aggravated Assault, a felony; and to a term of one hundred (100) years to Count II, Aggravated Kidnapping, a felony. Said sentences shall run consecutively with each other. It is recommended that the defendant complete anger management, criminal thinking errors, chemical dependency treatment, mental health evaluation and therapy in all phases of sex offender treatment, plus abide by all conditions of parole. Defendant shall be designated a dangerous offender for the purposes of parole. Defendant shall receive credit for time served at Missoula County Jail from Jeme 6, 1993, through date of sentencing, January 5, 1994, in the amount of two hundred fourteen (214) days.

On May 6,1994, 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 Karen Townsend, Deputy County Attorney from Missoula.

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Rory Castle for representing himself before the Sentence Review Board, and would also like to thank Karen Tbwnsend, Deputy County Attorney from Missoula for representing the State.


text:
    STATE OF MONTANA, Plaintiff, vs. MICHAEL JOHN CARTER, Defendant.
    NO. CR 93-112
    DECISION
    DATED this 6th day of May, 1994.
   On March 21, 1994, the Defendant was sentenced to ten (10) years with two (2) years suspended for the offense of Felony Assault in Montana State Prison, plus conditions as stated in the March 21,1994 Judgment. The defendant shall receive a total credit of 19 days time served in jail prior to sentencing. The defendant is designated a dangerous offender for purposes of parole. The defendant is ineligible for parole until he has successfully completed all phases of both the Montana State Prison alcohol treatment program and the anger management program.

On May 6,1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was not represented.

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Michael Carter for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. PATRICK ARTHUR GIBSON, Defendant.
    NO. DC 93-140
    DECISION

      DATED this 6th day of May, 1994.
   On February 8,1994, the Defendant was sentenced to ten (10) years commitment to the Department of Corrections and Human Services and shall be placed in an appropriate correctional institution or program for the offense of Felony Assault. For the use of a dangerous weapon in the commission of Felony Assault, the defendant shall serve a period of two years commitment to the Department of Corrections and Human Services and shall be placed in an appropriate correctional institution or program. This sentence shall be served consecutively to that imposed for Felony Assault. The defendant is found to be a dangerous offender. Credit is given for 168 days previously served. The defendant shall not be released on parole or pre-release until he has undergone a thorough and complete mental examination which shows that the defendant does not constitute a danger to himself or others. If the defendant is released on parole or pre-release, a condition thereof shall be that he have no contact whatsoever with Angel Bullock or any member of her family.

On May 6,1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and proceeded pro se. The state was represented by Deputy County Attorney Gary Balaz of Bozeman, Montana.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that there will be no changes to the sentence imposed, however, the sentence as imposed will be clarified in the following areas: (1) The dangerous designation and commitment to the Department of Corrections may be inconsistent in some respects, however, the commitment to the Department of Corrections is to take precedent. In other words, the Department of Corrections has the authority to place the defendant in any program at any time without regard to the dangerous designation. (2) The portion of the sentence which referred to the defendant not being put on parole or pre-release until he is not a danger to himself or others is clarified as follows: if parole or pre-release programs are implemented while the defendant is seriously mentally ill, such programs must be consistent with the defendant’s and society’s best interests.

The reason for the decision is to clarify the sentence imposed and to allow the Department of Corrections to place the defendant in a facility that is appropriate for his rehabilitation.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Patrick Gibson for representing himself in this matter. We also wish to thank Gary Balaz, Depuiy County Attorney from Bozeman, Montana, for representing the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. FRANK EUGENE JOHNSON, Defendant.
    NO. CR 92-44
    DECISION

      DATED this 6th day of May, 1994.
   On June 30, 1993, the Defendant was sentenced to twenty (20) years at Montana State Prison for the offense of Sexual Assault without the possibility of parole. It is recommended to the Department of Corrections that the defendant complete both Phase One and Phase Two of the Sexual Offender Treatment Program, to include the Intensive Treatment Unit within that Program while in the Montana State Prison.

On May 6,1994, 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 Barbara Benson, Legal Intern from the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed, however, the defendant shall be given credit for jail time served.

The reason for the amendment is because there were no reasons listed by the sentencing judge why credit for jail time should not be given. The remaining portion of the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court. Not only is the sentence presumed correct, but the record justifies the sentence imposed considering the circumstances and because of the defendant’s prior criminal history.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

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


text:
    STATE OF MONTANA, Plaintiff, vs. MICHAEL JAMES BIRKLAND, Defendant.
    NO. DC 93-563
    DECISION
   On January 11, 1994, the Defendant was sentenced to eight (8) years in Montana State Prison for the offense of Forgery, a felony. Sentence is to run consecutively to Cause No. DC 93-564 and to any other sentence defendant is serving. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, from December 3,1993 through January 11,1994, for 40 days. It is further ordered that the defendant shall pay $20 to the Treasurer of Yellowstone County. The defendant shall pay a monthly supervision fee in the amount of $10 to be paid to the Clerk of Yellowstone District Court.

On May 6,1994, 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 appeared pro se. The state was not represented.

DATED this 6th day of May, 1994.

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

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

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

Hon. John Warner, Acting Chairman, Hon. Ted Lympus, Member, and Hon. Ted Mizner, Acting Member.

The Sentence Review Board wishes to thank Michael Birkland for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. MICHAEL JAMES BIRKLAND, Defendant.
    NO. DC 93-564
    DECISION
   On January 11,1994, the Defendant was sentenced to eight (8) years in Montana State Prison for the offense of Forgery, a felony. Sentence is to run consecutively to Cause No. DC 93-563 and to any other sentence defendant is serving. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, from December 3,1993 through January 11,1994, for 40 days. It is further ordered that the defendant shall pay $20 to the Treasurer of Yellowstone County. The defendant shall pay a monthly supervision fee in the amount of $10 to be paid to the Clerk of Yellowstone District Court.

On May 6,1994, 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 appeared pro se. The state was not represented.

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

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

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

DATED this 6th day of May, 1994.

Hon. John Warner, Acting Chairman, Hon. Ted Lympus, Member, and Hon. Ted Mizner, Acting Member.

The Sentence Review Board wishes to thank Michael Birkland for representing himself in this matter.