author: JUSTICE TRIEWEILER

text:
    VIRGINIA LAWRENCE, Plaintiff and Respondent, v. MICHAEL H. CLEPPER, Personal Representative of the Estates of JANE RAY TAYLOR and FRANK M. TAYLOR, Defendant and Appellant.
    No. 93-285.
    Submitted on Briefs November 5, 1993.
    Decided December 22, 1993.
    50 St.Rep. 1699.
    263 Mont. 45.
    865 P.2d 1150.

      For Defendant and Appellant: Harold V. Dye, Milodragovich, Dale & Dye, Missoula.
    For Plaintiff and Respondent: J. Robert Planalp and Calvin L. Braaksma, Landoe, Brown, Planalp & Braaksma, Bozeman.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Virginia Lawrence brought this claim for restitution from the estate of Jane R. Taylor and Frank M. Taylor in the District Court for the Twenty-first Judicial District in Ravalli County. The District Court concluded that prior to their deaths, Taylors received money belonging to Lawrence as constructive trustees, and that under the equitable theory of unjust enrichment, she was entitled to restitution. The District Court entered judgment in Lawrence’s favor in the amount of $130,816.63, together with prejudgment interest from October 10, 1990. Michael Clepper, personal representative of Taylors’ estates (defendant), appeals. We reverse the judgment of the District Court.

The issues raised by defendant on appeal are:

1. Did the District Court err when it found that Taylors possessed a state of mind which defeated their claim that they were innocent transferees of plaintiff’s property?

2. Is a person who receives property in exchange for an antecedent debt an innocent purchaser for value under Montana law?

FACTUAL BACKGROUND

During April and May of 1990, Frank and Jane Taylor transferred $85,108.63 from Frank’s retirement account, and $37,900 from their personal savings, to Kenneth Holm who held himself out as an investment counselor in California under the business name, Income Financial Advisor.

In the summer of 1990, Mr. Taylor, who was a retired dentist, and Mrs. Taylor moved to Victor, Montana. They bought a home next to Jack Stark, who is an attorney and banker employed at the Farmers State Bank in Victor. However, Mr. Stark first met the Taylors when they made an appointment to see him at the bank on July 30, 1990. On that occasion, they brought with them a document which evidenced the money they had supposedly invested through Holm, and told Stark that they wanted their money back because they had plans to invest it elsewhere. The document that they brought into Stark’s office was not in evidence at trial. However, from his memory, Stark recalled that it documented the amount of money Taylors had invested through Holm and indicated that they were entitled to have it returned to them on the condition that they provide Holm with 30 days’ notice.

During their meeting with Stark on July 30, the three of them composed a letter to Holm in which Taylors requested that their money be returned.

Plaintiff Virginia Lawrence and her husband had invested money through Holm from 1987 through October 10,1990. Mrs. Lawrence’s husband died on April 28, 1990, and left assets in a trust for the purpose of making payments on the couple’s home so that Mrs. Lawrence could continue to reside at that home. However, due to unspecified problems with the administration of the estate, several mortgage payments were missed.

In early September, shortly after 30 days from the time Holm was notified that Taylors wanted their money back, Holm approached Lawrence and suggested that she secure her home with an additional mortgage; that he invest the proceeds from that loan; and that, combined with what she had already invested through him, he would pay her sufficient amounts each month to make her loan payments until the problems with her husband’s estate could be resolved. His explanation was that the second mortgage would be a short term loan which could be paid off once the estate problems were resolved. According to Lawrence’s testimony, she was at first reluctant to do so, but when the problems with her husband’s estate continued, she changed her mind.

Holm made arrangements to obtain a loan for Lawrence from a southern California bank in the amount of $215,000. After payingfees and closing costs, she realized $198,015.50.

When the loan proceeds were distributed to her, Lawrence and Holm went from the bank where the loan was obtained to a second bank where the loan proceeds were converted to a cashier’s check made payable to Holm. She instructed Holm to invest her money in the commodities future market and asked that the investments be backed by treasury bonds. This transfer occurred on October 10,1990.

Officials from Holm’s bank testified that on that same date he deposited $198,015.50 in his account, and that the following day, on October 11, he instructed the bank to wire $91,615.63 to Frank Taylor’s retirement account at a Denver bank, and $39,201 to Frank and Jane Taylor’s personal account at Western Federal Savings Bank in Missoula. Those same officials said that had it not been for the deposit made by Holm on October 10, there would have been no funds in his account with which Holm could have made the wire transfers to Taylors. The wire transfers to Taylors were in satisfaction of the demand letter they had sent to Holm on July 30, 1990.

As part of his arrangement with Lawrence, Holm had agreed to make her mortgage payments for the next 12 months. However, the November mortgage payment was late, and the December payment was first late, and then returned because there were insufficient funds to cover it. When she tried to contact Holm to find out the reason for the late payments, she had difficulty reaching him, and finally consulted an attorney, who attempted to recover the amounts she had invested with Holm, but was unsuccessful. She then consulted a district attorney in California, who advised her that eleven other people had been similarly victimized by Holm. She filed a complaint against him with the Commodities Future Trading Commission and recovered judgment against Holm in the amount of $411,000 on the grounds that Holm obtained money from her by fraud. However, at the time of trial, Holm’s whereabouts were unknown.

Jane and Frank Taylor died on March 30,1991. Michael H. Clepper is the personal representative of their estates.

On December 18,1991, Lawrence filed this complaint in which she contended that the money she paid to Holm on October 10,1990, was obtained by fraud and deception and was illegally transferred to Taylors without her permission. She alleged that Taylors were aware of the source of the funds they received, and therefore, they were unjustly enriched at her expense. For that reason, she alleged that the court should impose a constructive trust for her benefit on the funds obtained by Holm and transferred to Taylors.

In response to Lawrence’s complaint, defendant denied that Taylors had any knowledge that the money which was repaid by Holm was obtained improperly, and as an affirmative defense, alleged that Taylors were bona fide transferees for value.

Both parties moved for summary judgment.

In support of his motion, defendant offered uncontradicted evidence that prior to July 30, 1990, Taylors had invested $123,008.63 with Kenneth Holm, doing business as Income Financial Advisor, and that that amount, together with interest, is what he repaid them on October 11. Based on that evidence, defendant argued that Taylors were transferees for value without knowledge of Holm’s fraudulent activities, and therefore, that Lawrence was not entitled to restitution from them based on the law of constructive trusts.

In turn, Lawrence offered evidence that the money obtained fraudulently from her by Holm was traceable to Taylors. She argued that she was entitled to summary judgment because there was no evidence that Taylors were without notice of Holm’s wrongdoing, and furthermore, that they provided nothing of value to Holm in exchange for the amounts that he returned to them.

The District Court denied both motions for summary judgment based on its conclusion that there was a question of fact regarding the extent of knowledge that Taylors had about the source of the funds which were returned to them, and that neither party had offered sufficient evidence regarding this factual issue.

This case went to trial without a jury before the District Court on October 28, 1992. The only witnesses who testified at trial were Virginia Lawrence and Jack Stark. The testimony of Birdie Risen, a bank official at Holm’s bank in Carlsbad, California, was offered by deposition.

After considering the evidence, the District Court made factual findings and a conclusion of law which are the basis for defendant’s appeal. The District Court found that Taylors went to see an attorney on July 30,1990, because they were anxious and worried about their investments, and that their anxiety, concern, and distrust of Holm continued after they demanded return of their money, as was evidenced by repeated telephone calls to him between the dates of September 10 and October 11,1990.

The District Court also found that Taylors did not consider Holm their debtor and did not give anything of value to Holm in exchange for the money that he transferred to them on October 11. The court finally found, assuming Taylors were creditors of Holm, that the October 11 transfer to them was for an antecedent debt, and therefore, without consideration.

The District Court concluded that, based on Taylors’ apparent anxiety, suspicion, and distrust of Holm, they did not qualify as bona fide purchasers. It also concluded that because nothing of value was provided to Holm in exchange for the money he returned to Taylors, they were not bona fide purchasers for value as a matter of law.

Based on other findings, the District Court impressed a constructive trust on the assets of Taylors’ estates, based on the theory of unjust enrichment, and ordered that the amount paid to them by Holm on October 11 be repaid to Lawrence with interest from the date of October 10, 1990. Defendant moved, pursuant to Rule 59, M.R.Civ.R, for a new trial, or in the alternative, that the District Court amend its findings and conclusions. That motion was denied. Defendant appeals from the judgment entered by the District Court in favor of Lawrence, and from the District Court’s denial of his post-trial motion.

The bases for defendant’s appeal are that the District Court’s findings regarding Taylors’ state of mind are unsupported by evidence, and therefore, clearly erroneous, and that the District Court erred as a matter of law when it concluded that Taylors could not be innocent transferees for value because no consideration was paid to Holm for the money that he transferred to them.

DISCUSSION

We have long recognized in Montana that in transactions between two parties, the principles of equity sometimes mandate the imposition of involuntary trusts. In Eckart v. Hubbard (1979), 184 Mont. 320, 325, 602 P.2d 988, 991, we recognized that:

Involuntary trusts may be created, for example, when a court implies or presumes an intent to create a trust or simply declares, employing the principles of equity, that the trust shall be said to exist. Nothing else is required.

Based upon the statutory scheme that was in effect at that time, we held that:

Constructive trusts spring from fraud, mistake, undue influence, the violation of a trust, or other wrongful acts. Platts [v. Platts], [134 Mont. 474, 480, 334 P.2d 722, 727], Constructive trusts occur where the parties have expressed no intent to create a trust, nor does the court presume that any intent existed. Rather, the court creates the trust to work an equitable result. Bogert [on Trusts, 5th ed.], § 71, p. 263.

Eckart, 602 P.2d at 991.

In 1989, Montana enacted a new trust code found at Chapters 33-36 of Title 72 of the Montana Code Annotated. Section 72-33-219, MCA, of that code provides for “constructive trusts” under the following circumstances:

A constructive trust arises when a person holding title to property is subject to an equitable duty to convey it to another on the ground that the person holding title would be unjustly enriched if he were permitted to retain it.

In Montana, therefore, the equitable creation of a constructive trust is dependent upon, and related to, the equitable principle of unjust enrichment. The creation of a constructive trust need not be limited to the person who obtained property by fraud or deception from another. If that property is transferred by the wrongdoer to a third party who would be unjustly enriched if he or she was allowed to keep it, a constructive trust can be created to prevent such unjust enrichment. The notion of unjust enrichment of a third party usually involves the issue of notice to that party regarding the manner in which the property was originally acquired such that allowing the third party to keep the property would be inequitable or unjust.

The phrase “unjust enrichment” is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefore. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly.
... However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.
... It is said to be fundamental that for a person to be entitled to restitution, he must show not only that there was unjust enrichment, but also that the person sought to be charged had wrongfully secured a benefit, or had passively received one which it would be unconscionable for him to retain.

66 Am. Jur. 2d Restitution and Implied Contracts §§ 3-4 (1973).

For these reasons, courts of equity have not allowed restitution from third parties who came into possession of another’s property innocently, even though that property was originally obtained by fraud or mistake. Therefore, Restatement of the Law of Restitution, § 13 (1937) provides that:

A person who has entered into a transaction with another under such circumstances that, because of a mistake, he would be entitled to restitution from the other,
(a) is not entitled to restitution from a third person who has received title to or a legal interest in the subject matter either from the other or from the transferor at the direction of the other, and has given value therefor without notice of the circumstances ....

Comment a to § 13 makes clear that the same principle applies to property obtained by fraud.

Section 172 of Restatement of the Law of Restitution discusses the situation of innocent third-party transferees where, as here, the issue is the imposition of a constructive trust. That section provides:

(1) Where a person acquires title to property under such circumstances that otherwise he would hold it upon a constructive trust or subject to an equitable lien, he does not so hold it if he gives value for the property without notice of such circumstances.
(2) In the Restatement of this Subject such a transferee is called a bona fide purchaser.

The reason for the rule established by § 172 is illustrated in Comment a to the same section where it states that:

The principle that a person who innocently has acquired the title to property for which he has paid value is under no duty to restore it to one who would be entitled to reclaim it if he had not been innocent or had not paid value therefor, is of wide application, being a limitation upon the principle that a person who has been wrongfully deprived of his property is entitled to restitution. The question in such cases is which of two innocent persons should suffer a loss which must be borne by one of them. The principle which is applied by courts of equity is that they will not throw the loss upon a person who has innocently acquired title to property for value. The bona fide purchaser is not only entitled to retain the property free of trust, but he is under no personal liability for its value.
This principle is most frequently applied to the situation where a person holds property subject to a constructive trust and transfers it to a person who pays value without notice of the facts which gave rise to the constructive trust; in which case a constructive trust is cut off. The situation arises, for example, where a person obtains property by fraud and transfers the property to a person who pays value without notice of the fraud. [Emphasis added].

Restatement of the Law of Restitution, § 172, Comment a (1937). With that background, we address the issues raised on appeal.

I.

Did the District Court err when it found that Taylors possessed a state of mind which defeated their claim that they were innocent transferees of plaintiff’s property?

It is undisputed that Holm obtained Lawrence’s money by fraud. Under that circumstance, he held the money, subject to a constructive trust, for Lawrence’s benefit. If the property, however, was transferred to Taylors for value, and if they had no notice of the circumstances which gave rise to the trust, the trust is cut off. This first issue relates to whether there was evidence from which the District Court could find that Taylors had notice of Holm’s conduct which gave rise to the trust.

The District Court made no specific finding that Taylors had notice of Holm’s fraudulent conduct. Instead, the District Court simply found that Taylors were anxious about their investment and were suspicious and distrustful of Holm. From those findings, the District Court concluded that they did not possess a state of mind which would qualify them as innocent transferees.

It is correct that if Taylors were aware of facts which should have caused further investigation, and if that investigation would have led to knowledge of Holm’s conduct, then they are charged with notice. Section 174 of Restatement of the Law of Restitution provides that “[e]xcept in the case of the holder of a negotiable instrument, a person has notice of facts giving rise to a constructive trust if he knows the facts or should know them.” (Emphasis added).

It was presumably the District Court’s conclusion that based on Taylors’ mistrust of Holm and the temporary difficulty they had obtaining their money, they should have known that the money was obtained by inappropriate means.

On appeal, defendant argues that there is no need to decide whether distrust or anxiety equates with notice because there was no evidence that Taylors were anxious or distrustful of Holm.

Lawrence, on the other hand, responds that the District Court’s findings in that regard were supported by substantial evidence, and offers the following examples:

1. Taylors’ attorney, Stark, distrusted Holm;

2. During a telephone conversation between Holm and Mrs. Taylor, Holm asked if she did not trust him;

3. Taylors made numerous telephone calls to Holm during the month prior to the return of their money;

4. The mere fact that Taylors sought the return of their money several months after investing it with Holm, suggests that they did not trust him.

Because of the trial court’s unique opportunity to resolve issues of fact, we will defer to a District Court’s findings unless they are clearly erroneous. However, findings which are not supported by substantial credible evidence are clearly erroneous. Interstate Production Credit Association v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285.

In this case, defendant’s contention that Taylors were innocent transferees was an affirmative defense pursuant to Rule 8(c), M.R.Civ.P., and defendant, therefore, had the burden of producing evidence in support of that defense. Section 26-1-401, MCA. That burden was made difficult by the fact that by the time of trial both of the Taylors were deceased. However, in meeting that burden, defendant had a right to rely on relevant statutory presumptions.

Section 26-1-602, MCA, sets forth a number of disputable presumptions. It provides that:

All other presumptions are “disputable presumptions” and may be controverted by other evidence. The following are of that kind:
(7) Money paid by one to another was due the latter.
(19) Private transactions have been fair and regular.

These statutory presumptions satisfied defendant’s burden of proof in support of its affirmative defense, and are conclusive unless controverted by other evidence.

As pointed out previously, the only witnesses who testified in this case were Lawrence, an official from Holm’s bank in California, and Jack Stark, Taylors’ attorney. Neither Birdie Risen, the bank official, nor Lawrence, had ever met Taylors, and neither offered any testimony about the extent of Taylors’ knowledge of Holm’s activities.

Neither did Stark, who assisted Taylors in their effort to obtain the return of their money and saw them occasionally as neighbors, offer any evidence to indicate that they had notice of Holm’s activity or a reason to further investigate his activity. In fact, he testified that Taylors never expressed frustration with Holm, nor did he get the impression that they were frustrated with him. Although he personally harbored some suspicion of Holm based on his experience as a banker, he did not express that suspicion to Taylors, and in fact, testified that his suspicion was lessened when he learned that Holm had previously returned $60,000 to Taylors’ bank which had been mistakenly sent to Holm.

Stark testified that if Taylors had reasons for seeking the return of their money from Holm, other than a preference to put it into local investments, he was unaware of those reasons. Although Holm did call Mrs. Taylor after receiving the letter that was sent on July 30, and did question whether they trusted him, Stark made it clear that it was Holm who raised the issue of trust and that it was never mentioned by Mr. or Mrs. Taylor.

In fact, Stark testified that after sending the July 30 letter requesting return of Taylors’ money, the subject of its return did not come up again in his conversations with his neighbors until sometime in November, when out of curiosity, he inquired about the money and was advised by Taylors that they had received it. However, at no time did they indicate to him that they were relieved at the return of their investment.

Stark testified that after his initial meeting with Taylors in his office, and after the letter was sent that was produced at that meeting, Taylors did not seek any further advice from him about the return of their money, and during none of his informal conversations with Taylors after that date did they express any concern to him about their transactions with Holm.

In summary, Stark testified that at no time during any of his conversations with Taylors about Holm was the term or subject of distrust ever mentioned.

It is true that findings of fact can be based on reasonable inferences. However,

[a]n inference must be founded:

(1) on a fact legally proved; and

(2) on such a deduction from that fact as is warranted by a consideration of the usual propensities or passions of men, the particular propensities or passions of the person whose act is in question, the course of business, or the course of nature.

Section 26-1-502, MCA.

In its findings, the District Court found that Taylors were anxious, suspicious, and distrustful from the fact that their attorney had an initial distrust of Holm, and from the fact that Holm raised the issue of trust when Taylors requested the return of their money. The District Court also found distrust based on numerous telephone calls from Taylors to Holm during the period of time that they were attempting to secure the return of their money. However, most of these telephone calls lasted for no more than one minute, the longest was for five minutes, and there is no record of what was discussed, or whether Holm was even reached during these telephone calls. Furthermore, Stark’s distrust of Holm is irrelevant if it was not communicated to Taylors.

Based on our review of the record, we conclude that the inferences relied on by the District Court do not amount to substantial evidence that Taylors had notice of Holm’s fraudulent activity, or reason to suspect that the money he returned to them was obtained by fraudulent activity. Therefore, we conclude that the District Court erred when it found that Taylors did not possess a state of mind which qualified them as innocent transferees of Lawrence’s property.

II.

Is a person who receives property in exchange for an antecedent debt an innocent purchaser for value under Montana law?

The District Court concluded that Taylors could not be innocent transferees for value because, at most, they established an antecedent debt which did not constitute “value.” On appeal, defendant contends, based on Restatement of the Law of Restitution, that an antecedent debt is sufficient to establish “value,” and that that rule should be adopted in Montana. Lawrence contends that our prior decisions regarding bona fide purchasers require the exchange of new consideration in order to establish “value.”

Our standard for reviewing legal conclusions of a District Court is to determine whether they are correct. In re Marriage of Burris (1993), 258 Mont. 265, 269, 852 P.2d 616, 619, 50 St. Rep. 525, 526.

Lawrence cites our early decision in Montana Electric Company v. Northern Valley Mining Company (1915), 51 Mont. 266, 153 P. 1017, for the proposition that to establish bona fide purchaser status “new” consideration is required. It is true that in Montana Electric Company, 153 P. at 1018, we set forth the rule as follows:

A bona fide purchaser is defined to be “one who at the time of his purchase advances a new consideration, surrenders some security, or does some other act which leaves him in a worse position if his purchase should be set aside, and purchases in the honest belief that his vendor had a right to sell, without notice, actual or constructive, of any adverse rights, claims, interest, or equities of others in and to the property sold.” [Citation omitted].

However, it is important to observe that in that case the nature of consideration provided was not the issue. The above rule was simply set forth without analysis or further discussion regarding its merits.

Defendant, on the other hand, suggests that we adopt § 173 from Restatement of the Law of Restitution, which defines “value” as follows:

(2) Except in the case of a transfer by an express trustee, a transfer of property other than an interest in land in satisfaction of or as security for a pre-existing debt or other obligation is a transfer for value.

In this case, defendant contends that Holm had a prior obligation to repay the money that was invested with him upon 30 days’ notice of Taylors’ request that he do so, and therefore, when he repaid that amount the antecedent obligation satisfied the requirement that the transfer be for “value.”

We conclude that the definition of “value” set forth in Restatement of the Law of Restitution § 173 (1937) is more consistent with the equitable purpose of the “innocent transferee” defense, and therefore, adopt that rule in this and in future cases which involve issues of constructive trusts and innocent transferees.

The question in cases such as this is which of two innocent persons “should suffer a loss which must be borne by one of them.” That is the issue which the “bona fide purchaser” defense was established to address. We conclude that a purchaser is no less innocent and that his or her loss would be no less significant if the property they acquired was in exchange for a previous obligation or debt than if the property was acquired in exchange for new consideration. The net effect or damage to the innocent purchaser or transferee is the same. Therefore, under equity, the result must be the same.

For these reasons, we conclude that the District Court erred when it held that Taylors had not provided “value” to Holm in exchange for the money that he wired to them.

Based on our conclusion that there is no evidence in this record that Taylors had notice of any wrongful conduct on the part of Holm, and that the money they received from him was transferred for “value,” we conclude that the judgment of the District Court must be reversed.

This case is remanded to the District Court for entry of judgment for defendant.

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


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. BASIL THOMAS PLANT, Defendant.
    NO. DC-92-48
    DATED this 7th day of May, 1993.
    DECISION
   On September 9, 1992 the Defendant was sentenced to five (5) years for Criminal Possession of Dangerous Drugs. The Defendant will be ineligible for parole until he successfully completes the inpatient chemical dependency program at the Montana State Prison.

On May 7,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Susan Aaberg-Firth, Legal Intern from the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be amended to five (5) years with three (3) years suspended for Criminal Possession of Dangerous Drugs. The Defendant must complete the treatment program he is currently in at Galen and he must follow through with any recommendations his counsel feels appropriate.

The reason for the decision is it is the Defendant’s first felony offense.

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. TERRY WAYNE EVANS, Defendant.
    NO. 9426
    DECISION
   On September 14,1992, the Defendant’s sentence for Count I, Burglary was revoked and Defendant was sentenced to fifteen (15) years in the Montana State Prison. Said sentence shall run consecutive to the sentence imposed in Cause No. 8131. The Defendant is entitled to 288 days time served.

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

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

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

DATED this 6th day of May, 1993.

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. RUSSELL THEODORE HEIT, Defendant.
    NO. DC-88-333
    DATED this 7th day of May, 1993.
    DECISION
   On August 16, 1989, the Defendant was sentenced to Count II, 100 years for Deliberate Homicide plus ten (10) years for the use of a dangerous weapon, to be served consecutive to each other; Count III, forty (40) years for Robbery, the forty year term shall run consecutively to the other sentences herein imposed. Credit is given for 321 days time served; Dangerous Designation.

On May 7,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Susan Aaberg-Firth, Legal Intern from the Montana Defender Project. The state was not represented, however, a letter was faxed to the Prison from Yellowstone County on the State’s behalf.

An objection was made by Dave Stenerson, Teacher’s Assistant, from the Montana Defender Project, to disallow consideration of the County Attorney’s letter because it was received only moments prior to the hearing and they are not prepared to counteract or investigate the information received. The objection was sustained by the Sentence Review Board due to untimeliness of the letter.

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

After careful consideration, there was a split decision of the Sentence Review Division. Judge McKittrick and Judge Baugh 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. Thomas McKittrick, Chairman, and Hon. G. Todd Baugh, Judge.

DISSENT: THE HONORABLE JOHN WARNER DISSENTS: Judge Warner would have seriously considered the death penalty for this Defendant. Therefore he would have counsel appointed for the Defendant and have the Sentence Review Hearing rescheduled for fall of 1993, to review why the death penalty should not have been imposed in this matter.

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


text:
    STATE OF MONTANA, Plaintiff, vs. SCOTT CLYDE MAGRUDER, Defendant.
    NO. DC-87-159
    DATED this 7th day of May, 1993.
    DECISION
   On February 11, 1988, the Defendant was sentenced to Count I, ten (10) years for Felony Assault; Count II, forty (40) years for Mitigated Deliberate Homicide. Counts I and II shall be served concurrently to each other. The Defendant knowingly used a dangerous weapon and is sentenced to a term of ten (10) years. This sentence shall be served consecutively with the terms imposed for Count I and Count II. The additional ten (10) year sentence shall run concurrently on each Count, however. It was further ordered that the defendant is designated a Persistent Felony Offender, and the consecutive sentence imposed for use of a dangerous weapon is sufficient to also apply to the Persistent Felony Offender statute in Section 46-18-502, MCA. The Defendant is given credit for 252 days time served and is designated as a Dangerous Offender.

The Defendant was present and was represented by William Hritsco, 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 to increase the sentence, to leave it as it is, or reduce it. The defendant was further advised that there is no appeal from the decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

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

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

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. BRIAN K. YOUNG, Defendant.
    NO. DC-92-052
    DATED this 7th day of May, 1993.
    DECISION
   On September 11, 1992, the Defendant was sentenced to twenty (20) years for Sexual Intercourse Without Consent with ten (10) years for the sentence to be suspended upon the conditions listed in the September 11,1992 Judgment by the Hon. Robert Holmstrom. It is recommended that the Defendant not be eligible for parole until such time as he has successfully enrolled in and completed the drug/alcohol program and the Sex Offender Treatment Program. It is recommended that the Defendant be evaluated for transfer to the Swan River Forest Camp. It is further ordered that the Defendant shall pay to the Clerk of the District Court the sum of TWENTY DOLLARS ($20.00) for the surcharge.

On May 7,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Matthew J. Sisler, Legal Intern from the Montana Defender Project. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed except for changing the recommendation for treatment to allow the Defendant to obtain treatment outside of the Montana State Prison and have it part of his parole program. Upon release from the Montana State Prison, the Defendant is to be placed under the supervision of the Parole and Probation officer.

The Sentence Review Board has been advised that treatment programs at the Montana State Prison are full. The Sentence Review Board believes that making this treatment mandatory at Montana State Prison would cause an institutional delay which would not be in the best interest of justice. The Defendant and society would be better served if the Defendant received the much needed treatment and counseling in a timely fashion under the supervision of his parole and probation officer outside of the prison compound.

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. JACK DAWSON THOMAS, Defendant.
    NO. DC-90-02
    DECISION

      DATED this 7th day of May, 1993.
   On November 24,1992, the Defendant’s prior ten (10) year suspended sentence was revoked and the Defendant was sentenced to a term of ten (10) years in the Montana State Prison. The Court recommends that the Defendant not be considered for parole unless he successfully completes the sexual offender treatment program at the Montana State Prison. Credit is given for 71 days time served.

n May 7, 1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. DARRELL DANIELS, Defendant.
    NO. DC-92-30
    DECISION
   On January 29,1993, the Defendant was sentenced to eighteen (18) years for Felony Assault with thirteen (13) years suspended upon the terms and conditions set forth in the January 29, 1993 Judgment. Plus two years for the use of a weapon during the commission of this offense, which shall be served consecutively. The Defendant is sentenced to six (6) months for Theft, a misdemeanor. This sentence is to rim concurrent with the above sentence and is to be suspended in its entirely upon the terms and conditions set forth in the January 29,1993 Judgment. The Defendant was sentenced to ten (10) years for Escape, a felony, with five (5) years suspended upon the terms and conditions set forth in the January 29, 1993 Judgment. The Defendant is designated as a Persistent Felony Offender and was sentenced to five (5) years, which is to be served consecutively to the above sentences. The Defendant’s suspended sentence dated February 1, 1993 was revoked and the Defendant is ordered to serve the remaining five (5) years on that sentence. Said five (5) years is to be served concurrently with the sentences above. The Defendant was designated a dangerous offender.

On May 7,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 7th day of May, 1993.

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

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

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. JOHN NELSON WEBB, Defendant.
    NO. CDC-91-067F
    DATED this 6th day of May, 1993.
    DECISION
   On December 2, 1991, the Defendant was sentenced to twenty five (25) years for Conspiracy to Sell Dangerous Drugs; Defendant shall pay a fine of $25,000; and he shall receive credit for 156 days credit for time served; plus conditions as stated in the December 2, 1991 Judgment imposed by Judge Warner.

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

The Defendant was present and was represented by Carl White, 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 last ten (10) years of the sentence shall be suspended. The sentence imposed shall remain the same in all other respects.

The reason for the decision is because of the disparity in sentences of the co-defendants. This will make the time portion of the sentence more appropriate.

Hon. Robert Boyd, Acting Chairman, Hon. G. Todd Baugh, and Hon. Mark Sullivan, Judges

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


text:
    STATE OF MONTANA, Plaintiff, vs. STEVE NORMAN DE ARMENT, Defendant.
    NO. DC-92-204 and DC-92-216
    DATED this 6th day of May, 1993.
    DECISION
   On July 7, 1992 the Defendant was sentenced to DC-92-204, eight (8) years for Theft, to be served consecutive to the term given in Silver Bow County.

On July 7, 1992, the Defendant was sentenced to DC-92-216, seven (7) years for Theft, A Common Scheme, to be served consecutive to the term imposed in DC-92-204.

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

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

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

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

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

Hon. Thomas McKittrick, Chairman, Hon. John Warner, and Hon. Robert Boyd, Judges

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


text:
    STATE OF MONTANA, Plaintiff, vs. RICKY DEAN DAVIS, Defendant.
    NO. C-605
    DECISION
   On January 14, 1993, the Defendant was sentenced to Count I, ten (10) years for Criminal Endangerment; Count II, ten (10) years for Criminal Endangerment; the sentences shall be served concurrently to each other. The Defendant is given credit for 107 days time served and is hereby designated as a dangerous offender and deemed ineligible for parole.

On May 7,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by William A. Hritsco, Legal Intern from the Montana Defender Project. The state was not represented.

An objection was made by Dave Stenerson, Teacher’s Assistant, from the Montana Defender Project, to disallow consideration of the County Attorney's letter because it was received only moments prior to the hearing and they are not prepared to counteract or investigate the information received. The objection was sustained by the Sentence Review Board due to untimeliness of the letter.

DATED this 7th day of May, 1993.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed, however, the ineligibility for parole is hereby removed.

The reason for the decision is there was no property damage and no personal injury. In light of these facts, the Board finds the removal of the ineligibility for parole is appropriate.

Hon. G. Todd Baugh, Acting Chairman, and Hon. John Warner, Judge.

DISSENT: THE HONORABLE THOMAS MCKITTRICK DISSENTS. Judge McKittrick finds that the records supports the original sentence imposed. Judge McKittrick specifically notes that this is the seventh (7th) felony conviction for this Defendant.

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


text:
    STATE OF MONTANA, Plaintiff, vs. ANTHONY DION HEANEY, Defendant.
    NO. 9358
    DATED this 6th day of May, 1993.
    DECISION
   On May 22, 1991, the Defendant was sentenced to a term of forty (40) years for Sexual Intercourse Without Consent. It is the recommendation of the Court to the Parole Board that the Defendant shall complete the sexual offender treatment program and the anger management program at the Montana State Prison before being eligible for parole. The Defendant shall he designated a dangerous offender for the purposes of parole. Credit is given for 186 days time served.

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

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

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

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. DONALD W. DANKERT, Defendant.
    NO. 9060
    DATED this 6th day of May, 1994.
    DECISION
   On September 23,1992, the Defendant’s prior suspended sentence was revoked and he was sentenced to a term of seven (7) years for Issuing a Bad Check, a Felony Common Scheme. Credit was given for 89 days time previously served.

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

The Defendant was present and was represented by Margaret Gallagher, Legal Intern from the Montana Defender Project. The state was not represented.

Judge McKittrick recused himself from hearing this matter. The Defendant waived a three-judge panel and agreed to have his sentence reviewed by a two-judge panel.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed. However, once Mr. Dankert’s medical problems are confirmed, it is the recommendation of the Sentence Review Board that early parole be considered.

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 or the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. G. Todd Baugh and Hon. John Warner, Judges

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


text:
    STATE OF MONTANA, Plaintiff, vs. RAYMOND H. BUNGARD, Defendant.
    NO. CDC-91-179
    DATED this 23rd day of July, 1993.
    DECISION
   On March 26, 1992, the Defendant was sentenced to ten (10) years for Felony Assault; seven (7) years with five (5) years suspended for Criminal Endangerment; five (5) years all suspended for Felony Theft; all sentences shall be served consecutively. The Defendant is given credit for 23 days time served; three (3) years for the use of a dangerous weapon; said three (3) years is to be served consecutively with the above sentences. It was further ordered that the sentences herein are to run concurrently with the sentence in Hill County, dated March 2,1992, in Cause No. DC-91-061. Plus conditions listed in the March 26, 1993 Judgment.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and 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. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. Robert Boyd, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. RAYMOND H. BUNGARD, Defendant.
    NO. CDC-92-121
    DATED this 23rd day of July, 1993.
    DECISION
   On December 4, 1992, the Defendant was sentenced to Count I, ten (10) years for Attempted Escape; Count II, ten (10) years for Assault; Count V, ten (10) years for Possession of a Dangerous Weapon by a Prisoner. Said sentences are to run consecutively. However, the execution of the last ten years of said sentence is hereby suspended. The defendant is not entitled to any jail time credit. The present sentence is to run consecutively with the sentence imposed in Cause CDC-91-179. Additionally, the prison sentence is to run consecutively to the sentence imposed in Cause BDC-92-036. Plus all conditions ordered in the December 4, 1992 Judgment.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and 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. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. Robert Boyd, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. JAKE STONE, Defendant.
    NO. 92-59
    DECISION
   On February 23, 1993, the Defendant was sentenced to Eight (8) years for Felony Assault; Eight (8) years for Aggravated Assault. The two sentence are to be served consecutively, with the last Eight (8) years for the sentence to be suspended upon the terms and conditions listed in the February 23, 1993 Judgment. The Defendant is designated a dangerous offender.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

DATED this 23rd day of July, 1993.

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

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

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. WILLIAM THANE ROLFE, Defendant.
    NO. BDC-92-129B
    DATED this 23rd day of July, 1993.
    DECISION
   On March 18, 1993, the Defendant was sentenced to Count I, ten (10) years with two (2) years suspended for the revocation of Burglary. The Defendant is given credit for 31 days time served. Plus conditions as stated in the March 18, 1993 Judgment.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. DAVID BRYAN FINLEY, Defendant.
    NO. ADC-93-132
    DATED this 23rd day of July, 1993.
    DECISION
   On January 22, 1993, the Defendant was sentenced to Count I, fifteen (15) years for Attempted Sexual Intercourse Without Consent; Count II, fifteen (15) years with five (5) years suspended for Sexual Assault. The sentences shall be served consecutively to each other. The Court recommends the Defendant complete chemical dependency, anger management and sex offender treatment programs before becoming eligible for parole. For parole purposes a dangerous designation is imposed. Credit is given for 157 days time served. Plus conditions as listed in the January 22,1993 Judgment.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. LEE NELS TECCA, Defendant.
    NO. DC-89-18
    DECISION
   On November 22, 1992, the Defendant was sentenced to Count I, forty (40) years for Aggravated Burglary; Count II, forty (40) years for Sexual Intercourse Without Consent; the sentences for Counts I and II shall be served concurrently. Count III, thirty (30) years for Aggravated Burglary; Count IV, twenty (20) years for Attempted Sexual Intercourse Without Consent; the sentences for Counts III and IV shall be served concurrently. The sentences for Counts III and IV shall be served consecutively with the sentences imposed for Counts I and II. The Defendant shall receive credit for 295 days time served plus any additional days that will be served at the Gallatin County Detention Center after November 13, 1989, until his transportation to the Montana State Prison. The Defendant is designated a dangerous offender for purposes of parole eligibility. Plus conditions listed in the November 22,1992 Judgment.

DATED this 23rd day of July, 1993.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Dave Stenerson, Attorney at Law from Missoula. 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 except for Count III. Count III shall be reduced from thirty (30) years to twenty (20) years. All other portions of the sentence shall remain unchanged.

The reason for the decision is to bring the Aggravated Burglary charge more in line with other sentences of a similar nature.

The Sentence Review Board took into consideration the minor injury that was inflicted upon the victim.

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

The Sentence Review Board wishes to thank Dave Stenerson, Attorney from Missoula for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. DENNIS E. WEST, Defendant.
    NO. DC-92-78
    DECISION
   On October 6, 1993, the Defendant was sentenced to ten (10) years for Attempted Escape with three (3) years suspended upon conditions as stated in the Judgment. The Defendant shall receive credit for 191 days time served from March 28,1992, through October 5, 1992, and shall receive credit for such additional days as the Defendant shall serve at the Gallatin County Detention Center or in the Flathead County Jail after October 5, 1992, until his transportation to the Montana State Prison. This sentence shall be served consecutively to the twenty-seven month sentence in Federal Court.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant waived his presence to appear and was represented by Robert Alsobrook, Attorney at Law from Bozeman. The state was not represented.

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

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

DATED this 23rd day of July, 1993.

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. DENNIS E. WEST, Defendant.
    NO. DC-92-021(A)
    DATED this 23rd day of July, 1993.
    DECISION
   On November 2,1992, the Defendant was sentenced to twenty (20) years with five (5) years suspended for Burglary. This sentence is to he served concurrently with the offenses of Interstate Transportation of a Motor Vehicle and Attempted Escape. For purposes of parole eligibility, the Defendant is hereby declared to be a dangerous offender. Credit is given for 298 days time served, plus conditions as listed in the November 2, 1992 Judgment.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant waived his presence to appear and was represented by Robert Alsobrook, Attorney at Law from Bozeman. The state was not represented.

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

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

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

The Sentence Review Board wishes to thank Robert Alsobrook, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Corut.


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES GORDON ZACKUSE, Defendant.
    NO. DC-90-113
    DECISION
   On May 29, 1991, the Defendant was sentenced to Count I, forty (40) years with twenty (20) years suspended. On Counts II, III, IV and V, forty (40) years with twenty (20) years suspended on each Count for the Criminal Sale of Dangerous Drugs. The terms imposed in Counts II - V shall run concurrently with each other and concurrently with the term imposed on Count I. The Defendant shall receive credit for 32 days time served. The Defendant shall not be considered eligible for parole until he has successfully completed the inpatient chemical dependency treatment program at the Montana State Prison. Plus conditions as stated in the May 29, 1991 Judgment.

DATED this 23rd day of July, 1993.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Stacy Laqua, 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 amended to Count I, twelve (12) years with seven (7) years suspended. On Counts II, III, IV and V, twelve (12) years with seven (7) years suspended on each Count for the Criminal Sale of Dangerous Drugs. The terms imposed in Counts II - V shall run concurrently with each other and concurrently with the term imposed on Count I. The Defendant shall receive credit for 32 days time served. The Defendant must successfully completed a chemical dependency, however, this treatment program may be obtained outside the Montana State Prison. Plus conditions as stated in the May 29, 1991 Judgment. The chemical dependency treatment program and all other portions of the suspended sentence shall be under the supervision of the Department of Corrections and Human Services, Probation and Parole.

The reason for the amendment is to bring the sentence more in line with other sentences of a similar nature.

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. JUSTIN MICHAEL GATES, Defendant.
    NO. DC-92-0119A
    DECISION
   On February 16, 1993, the Defendant was sentenced to Count I, twenty (20) years for Aggravated Assault, plus five (5) years for the use of a weapon. Count II, twenty (20) years for Aggravated Assault, plus five (5) years for the use of a weapon. Both sentences shall be served concurrently and the Defendant shall be designated as a dangerous offender. The Court recommends that the Defendant receive appropriate psychological and psychiatric counselling, as well as educational and vocational skills while incarcerated. Credit is given for 265 days time served.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

DATED this 23rd day of July, 1993.

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

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

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

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


author: JUSTICE GRAY

text:
    RONALD J. STEVENSON and VICKI R. STEVENSON, husband and wife, Plaintiffs and Respondents, v. EDWARD ECKLUND and MARY ECKLUND, husband and wife; JOHN C. WOOD and CAROL A. WOOD, husband and wife; and THE STATE OF MONTANA, Defendants and Appellants.
    No. 93-326.
    Submitted on Briefs November 23, 1993.
    Decided December 22, 1993.
    50 St.Rep. 1706.
    263 Mont. 61.
    865 P.2d 296.

      For Defendants and Appellants: Donald L. Ostrem, Graybill, Ostrem & Crotty, Great Falls (Woods).

      For Plaintiffs and Respondents: Patrick F. Flaherty, Great Falls (Stevensons).
   JUSTICE GRAY

delivered the Opinion of the Court.

The sole issue before this Court is whether the Eighth Judicial District Court, Cascade County, erred in concluding that a breach of the covenant of warranty contained in a warranty deed occurred. Because no party other than the covenantee lawfully asserted ownership over the property conveyed by the deed, we conclude that the covenant of warranty was not breached. We therefore reverse the court’s denial of the Woods’ motion for summary judgment and grant of summary judgment in favor of the Stevensons on that issue.

This case stems from a boundary dispute involving Lots 7 through 9 and 10 through 12, in Block 1 of the J.L. Largent Addition to the town of Ulm, Montana. The dispute arose from an error in the original plat recorded in 1910. According to the 1910 plat, Block 1, containing twelve lots, was 600 feet long. In fact, its length was 700 feet.

The School District in Ulm acquired Lots 1 through 3 and Lot 4 in 1904 and 1916, respectively. The School District became aware of the discrepancy in the 1910 plat as early as 1954. After purchasing Lots 5 and 6 in 1966, the School District had Lots 1 through 6 restaked to correct the error. The surveyor used a rule of survey known as the doctrine of apportionment to correct the discrepancy in the 1910 plat. Under that doctrine, when a tract contains more or less area than that assigned to it in a recorded plat, the excess or deficiency is distributed among all the lots comprising the tract in proportion to their respective areas. Because the lots in Block 1 were of equal size, the surveyor increased the width of Lots 1 through 6 from 50 to 58.33 feet.

The record does not indicate when John and Carol Woods (the Woods) acquired Lots 7 through 12. In January of 1975, however, they conveyed their interest in Lots 10 through 12 to Edward and Mary Ecklund (the Ecklunds) by quitclaim deed. The Woods showed the Ecklunds lot lines reflecting a 58.33 foot width. This width was subsequently confirmed when the Ecklunds had Lots 10 through 12 resurveyed. Survey pins were placed on their property accordingly. In October of 1977, the Woods conveyed Lots 7 through 9 to Ronald and Vicki Stevenson (the Stevensons) by warranty deed after showing them lot lines also reflecting a 58.33 foot width. Lots 9 and 10, owned respectively by the Stevensons and the Ecklunds by 1977, shared a common boundary.

In 1985, Edward Ecklund began to exert acts of ownership over part of Lot 8 and all of Lot 9. He mowed the lawn, started to build a fence, and demanded that the Stevensons vacate the property. In October of that year, the Stevensons filed a complaint against the Ecklunds seeking to quiet title to Lots 7 through 9.

In their answer, the Ecklunds asserted that the disputed property was actually part of Lots 10 through 12. They also alleged via a counterclaim that the Stevensons had erected a structure on their Lots 10 and 11 and requested the court to order the Stevensons to either purchase the property or remove the structure. Through the course of litigation, they maintained that the doctrine of apportionment was improperly applied to increase the width of each of the lots in Block 1.

The Stevensons filed an amended complaint in August of 1990, adding the Woods as defendants. The Stevensons alleged that the covenant of warranty contained in their deed from the Woods had been breached by the Ecklunds’ assertion of ownership.

The Woods and the Stevensons concurred on the issue of the doctrine of apportionment and requested the District Court, in separate motions for summary judgment, to determine that the doctrine had been properly applied to correct the 1910 plat. The court denied the motions, determining that a factual dispute existed concerning the dimensions of the lots. The Stevensons subsequently moved for summary judgment on the covenant of warranty issue, arguing that the covenant had been breached as a matter of law. The court denied the motion, again stating that a factual dispute existed.

The Woods filed another motion for summary judgment in January of 1993, asserting that the Ecklunds could not establish a “lawful claim” to any of the Stevensons’ property because the doctrine of apportionment had been properly applied. On that basis, the Woods argued that no breach of the covenant of warranty contained in their deed to the Stevensons occurred.

On March 31, 1993, the District Court granted partial summary judgment in favor of the Woods. The court concluded that the doctrine of apportionment applied to the 100-foot discrepancy in the 1910 plat, reversing its prior refusal to grant summary judgment on that issue. Thus, the boundary dispute between the Stevensons and the Ecklunds was resolved in favor of the Stevensons. As a result, the court dismissed the Ecklunds’ counterclaim against the Stevensons.

The court denied the Woods’ motion for summary judgment, however, insofar as it related to the breach of the covenant of warranty. The court determined that a breach had occurred, concluding that the Ecklunds’ assertion of ownership was “not unlawful.” It reversed its previous denial of the Stevensons’ motion for summary judgment on that issue, effectively granting summary judgment in their favor. The court ruled that the Stevensons were entitled to damages as a matter of law, and scheduled a hearing to determine the amount of attorney’s fees that they incurred in defending their title to the property. Upon stipulation of the parties, however, the court entered a final judgment in accordance with its resolution of the summary judgment motions and awarded $7,000 to the Stevensons. The court stayed the judgment pending appeal.

The Woods appeal only from the court’s denial of their motion for summary judgment and simultaneous grant of summary judgment in favor of the Stevensons relating to the breach of the covenant of warranty. We conclude that no breach of the covenant of warranty occurred and, therefore, reverse the District Court on that issue.

Our standard in reviewing summary judgment is the same as that used by the district courts. Emery v. Federated Foods (Mont. 1993), 863 P.2d 426, 431, 50 St.Rep. 1454, 1456. Summary judgment is appropriate when the pleadings, depositions, and other documents on file demonstrate that no genuine issues of fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Here, the District Court’s summary judgment rulings turned on its legal conclusion that the Ecklunds’ assertion of ownership over property in Lot 9 was “not unlawful.” Our review of legal conclusions is plenary. Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

The Woods assert that because the doctrine of apportionment was properly applied to correct the 100-foot discrepancy in the 1910 plat, the Ecklunds had no legal basis to support their assertion of ownership over part of Lot 9. Absent a lawful assertion of ownership, the Woods contend that no breach of the covenant of warranty occurred, relying on § 30-11-110, MCA, and Green v. Baker (1923), 66 Mont. 568, 214 P. 88. We agree.

A covenant of warranty indemnifies the covenantee against a loss or injury resulting from a defect in the covenantor’s title. Capital Hill Shopping Center v. Miles (1977), 174 Mont. 222, 230, 570 P.2d 295, 298. It must conform, as did the covenant of warranty contained in the Stevensons’ deed, with § 30-11-110, MCA. That statute requires a covenant of warranty to provide, in substance, that a covenantee is protected from persons “lawfully claiming” the conveyed property. Section 30-11-110, MCA, reflects the common law requirement that a covenantee prove the assertion of a paramount title that resulted in the covenantee’s actual or constructive eviction in order to support a breach of the covenant of warranty. Green, 214 P. at 91.

Thus, we focus on whether the Stevensons proved an assertion of paramount title by the Ecklunds over the property in Lot 9 that resulted in eviction. Only in the presence of such proof would the Ecklunds’ assertion of ownership be a “lawful claim” resulting in a breach of the covenant of warranty in the Stevensons’ deed.

Throughout the litigation, the Stevensons maintained that the Ecklunds had no lawful claim to any of their property. They argued that the discrepancy in the 1910 plat regarding the size of Block 1 was properly resolved by applying the doctrine of apportionment. At no time did they allege actual or constructive eviction from the property in dispute. In accordance with the Stevensons’ position, the District Court ruled that the doctrine of apportionment had been properly applied. No party has asserted error in this ruling.

The Stevensons’ position and the District Court’s resolution of the boundary dispute in their favor precludes the conclusion that a breach of the covenant of warranty occurred. Absent proof that the Ecklunds asserted paramount title resulting in the actual or constructive eviction of the Stevensons, the Ecklunds’ assertion of ownership over property in Lot 9 does not constitute a “lawful claim” that can serve as a basis for a breach of the covenant of warranty. In other words, unless the Ecklunds prevailed in their assertion of ownership over property of the Stevensons, no breach of the covenant of warranty could occur.

The Stevensons argue, without citing authority, that the Ecklunds’ belief that their assertion of ownership had a legal basis is sufficient to establish a breach. This position is inconsistent with Green, which requires that paramount title be proved and that the covenantee be actually or constructively evicted. Green, 214 P. at 91. A warrantor is not bound to defend against an unlawful claim of title, but only against claims that are, in fact, superior. Chaney v. Haeder (Or.App. 1988), 752 P.2d 854, 856-57; Roper v. Elkhorn at Sun Valley (Idaho 1980), 605 P.2d 968, 972-73; 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 56 (1965).

The Stevensons also assert that they were unable to obtain title insurance or refinance the underlying loan on the property during the pendency of the litigation. On that basis, they argue that the property was “encumbered,” resulting in a breach of the covenant of warranty. We disagree.

The mere showing of a cloud on the title is not sufficient to establish a breach. Roper, 605 P.2d at 972; 20 Am.Jur.2d Covenants, Conditions, and Restrictions § 56 (1965). Thus, even if the Ecklunds’ assertion of ownership clouded the Stevensons’ title in the eyes of the title insurance company or the lending institution, the claim was not paramount to the Stevensons’ title as required by Green.

The Stevensons also argue that the covenant of warranty was breached under Wagner v. Cutler (1988), 232 Mont. 332, 757 P.2d 779. They quote at length from Wagner, but neither develop an argument nor apply that case to the facts before us. In Wagner, we addressed the scope of a covenant of warranty contained in a special warranty deed. Wagner is not relevant in determining whether a breach of the covenant of warranty occurred here.

Finally, the Stevensons contend that § 27-l-316(l)(c), MCA, supports the court’s award of attorney’s fees as a measure for damages resulting from the breach of the covenant of warranty. It is true that § 27-l-316(l)(c), MCA, provides that expenses incurred by the covenantee in defending his possession are part of the detriment caused by a breach of the covenant of warranty. However, the statute does not serve as a basis for an award of attorney’s fees where, as here, no breach is established.

Because the Stevensons did not establish that the Ecklunds had asserted a lawful claim of ownership on the disputed property under Montana law, we hold that the District Court erred in concluding that a breach of the covenant of warranty occurred. We reverse the District Court’s denial of the Woods’ motion for summary judgment, and simultaneous grant of summary judgment in the Stevensons’ favor, relating to the covenant of warranty and direct it to modify its judgment consistent with this opinion.

Reversed.

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


text:
    STATE OF MONTANA, Plaintiff, vs. ROGER CARL WOOLFOLK, Defendant.
    NO. DC-89-164B
    DATED this 23rd day of July, 1993.
    DECISION
   On October 27,1992, the Defendant was sentenced to ten (10) years at the Montana State Prison for the revocation of Kidnapping. The Defendant is given credit for two (2) years time served on probation and 90 days credit for time served in pre-sentence incarceration prior to the original sentencing. The defendant, must finish his jail time which he is presently serving out of Columbia Falls, Montana, prior to the execution of this sentence.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Kirk Krutilla, 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.

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. TRACY ALLEN MARX, Defendant.
    NO. DC-92-151B
    DATED this 23rd day of July, 1993.
    DECISION
   On March 22, 1993 the Defendant was sentenced to Count I, forty (40) years for Robbery. In addition the Defendant shall receive an additional sentence for the use of a dangerous weapon of ten (10) years which shall run consecutive to the forty year sentence. For Count II, twelve (12) years with ten (10) years suspended for Burglary, plus conditions as listed in the March 22, 1993 Judgment. This sentence shall run consecutive to the previously imposed sentence for Count I. The Defendant is given credit for 228 days time served and shall be designated a dangerous offender.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present 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. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. DAVID W. SMITH, Defendant.
    NO. DC-93-039A
    DECISION
   On March 24, 1993 the Defendant was sentenced to fifteen (15) years with five (5) years suspended for Accountability to Burglary. The Defendant is given credit for 47 days time served and must pay restitution of $1,215.80, plus other conditions as listed in the March 24, 1993 Judgment.

DATED this 23rd day of July, 1993.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. THOMAS R. DAHL, Defendant.
    NO. DC-92-201B
    DATED this 23rd day of July, 1993.
    DECISION
   On May 3, 1993 the Defendant was sentenced to five (5) years for Indecent Exposure. The Defendant shall not be eligible for parole until he has completed the Sex Offender Treatment Program and Substance Abuse Program available at the Montana State Prison.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Dave Wing, Attorney at Law from Butte. 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 Sentence Review Board finds that the sentencing judge considered the alternatives in his sentence and rejected them.

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

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

The Sentence Review Board wishes to thank Dave Wing, Attorney from Butte for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. SHAWN DUVAL JOHNSON, Defendant.
    NO. DC-92-184B
    DATED this 23rd day of July, 1993.
    DECISION
   On March 29,1993, the Defendant was sentenced to twenty (20) years for Burglary. Dangerous Designation. In the event the Defendant is granted parole the following are to be imposed as conditions of his early release from prison: (1) the Defendant must pay restitution of $3,141.50; (2) the Defendant must obtain, and remain, gainfully employed; and (3) the Defendant may not reside in, or otherwise have physical contact with, Flathead County, Montana.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and 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 is on codeine and unable to adequately represent himself. Therefore, he requested a continuance.

The Sentence Review Board considered the Defendant’s request and concluded that the codeine might affect his reasoning. The motion for continuance is granted. This case will be set for the September, 1993, docket and Mr. Johnson must obtain counsel by that time, or he can represent himself. No further continuance will be granted.

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


text:
    STATE OF MONTANA, Plaintiff, vs. THOMAS A. TURNER, Defendant.
    NO. 9733
    DECISION
   On May 18,1992 the Defendant was sentenced to ten (10) years for the revocation of Custodial Interference. The Defendant shall received 257 days credit for time served and will be designated a dangerous offender.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 23rd day of July, 1993.

The Defendant was present and was represented by Alan Johnson, 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 Sentence Review Board considered the entire file and it is implicit that the Defendant was a danger to the juvenile involved.

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

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

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