text:
    STATE OF MONTANA, Plaintiff, vs. LARRY STEVEN GARLAND, Defendant.
    NO. ADC 93-169
    DECISION
   On April 27,1994, the Defendant was sentenced to thirty (30) years for the offense of Mitigated Deliberate Homicide, a felony. For the use of a weapon in the commission of an offense, the defendant is sentenced to ten (10) years at Montana State Prison, said sentence to run consecutively to that imposed for the offense of Mitigated Deliberate Homicide; plus conditions as stated in the April 27,1994 Judgment.

On August 19, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

Done in open Court this 19th day of August, 1994.

SIGNED this 17th day of October, 1994.

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank Larry Garland for representing himself in this matter.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. LAWRENCE RICHARD SHEPPARD, Defendant.
    NO. 8938
    DECISION
    Done in open Court this 19th day of August, 1994.
    SIGNED this 17th day of October, 1994.
   On January 23,1990, the Defendant was sentenced to twenty (20) years with five (5) years suspended for Sexual Intercourse Without Consent; plus ten (10) years as a Persistent Felony Offender with all ten (10) years suspended, plus conditions. Credit is given for 151 days time served.

On August 19, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank Lawrence Sheppard for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. TODD JAMES CHAMBERLAIN, Defendant.
    NO. DC 93-217
    DECISION
    Done in open Court this 19th day of August, 1994.
    SIGNED this 17th day of October, 1994.
   On March 22,1994, the Defendant was sentenced to the Department of Corrections to serve a period of ten (10) years for the offense of Issuing a Bad Check, as part of a common scheme, a felony. Five (5) years of this sentence are suspended upon conditions as listed in the March 22,1994 Judgment.

On August 19, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the five (5) year suspended sentence will be dropped and the defendant is sentenced to the Department of Corrections for ten (10) years. During the ten (10) years the defendant shall not use checks or credit devices.

It is not the intent of the Sentence Review Board to change the length of the sentence, the amendment is imposed to allow the Department of Corrections latitude for appropriate placement.

The reason for the decision is that in the case that the defendant does not follow probation conditions, he will return to Montana State Prison on inmate status.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

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


text:
    STATE OF MONTANA, Plaintiff, vs. JEFFREY THEODORE BAYSINGER, Defendant.
    NO. DC 93-124
    DECISION
   On April 4, 1994, the Defendant was sentenced to a period of ten (10) years at Montana State Prison for the offense of Theft, a felony. The Defendant is not eligible for parole release until he has completed the chemical dependency and criminal thinking errors programs provided at the Montana State Prison, plus conditions as listed in the April 4, 1994 Judgment. Credit is given for 223 days previously served. For the offense of Criminal Possession of Dangerous Drugs (marijuana), a misdemeanor, the Defendant shall serve six months in the Gallatin County Detention Center. This sentence shall run concurrently with the sentence imposed for Felony theft.

Done in open Court this 19th day of August, 1994.

SIGNED this 17th day of October, 1994.

On August 19, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner, and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank Jeffrey Baysinger for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. DUANE ROBERT BRANDON, Defendant.
    NO. 92-14
    DECISION
   On February 12, 1993, the Defendant was sentenced to a term of twenty-five (25) years at Montana State Prison for the offense of Solicitation to Commit Deliberate Homicide, a felony. Provided, however, that the last five (5) years of said sentence is suspended subject to terms as stated in the February 12, 1993 Judgment. The defendant has been incarcerated in the Park County jail at different times since his arrest, and is entitled to credit upon said sentence. The Defendant should not be allowed to return to Park or Gallatin Counties if paroled. The defendant shall pay a surcharge of $20.00 immediately to the clerk of court. The Defendant is designated a dangerous offender.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Nik Geranios, 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 will remain the same as originally imposed.

Done in open Court this 18th day of August, 1994.

SIGNED this 17th day of October, 1994.

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

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


text:
    STATE OF MONTANA, Plaintiff, vs. EDWARD BOONE YEAGER, Defendant.
    NO. ADC 92-289B
    DECISION
    Done in open Court this 18th day of August, 1994.
    SIGNED this 17th day of October, 1994.
   On April 28, 1994, the Defendant was sentenced to Montana State Prison for a period of forty (40) years for the offense of Sexual Intercourse without consent, a felony. The defendant shall enroll in and complete a sexual offender treatment program while at Montana State Prison and not be considered for release until completion of said program plus abide by all other conditions as stated in the April 28,1994 Judgment. The Defendant is designated as a dangerous offender. Credit is given in the amount of 110 days already served.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Matt Clifford, 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 will remain the same as originally imposed.

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

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


text:
    STATE OF MONTANA, Plaintiff, vs. DONALD JAMES HOWELL, JR. Defendant.
    NO. DC 93-35
    DECISION
    Done in open Court this 18th day of August, 1994.
    SIGNED this 17th day of October, 1994.
   On February 22, 1994, the Defendant was sentenced to fifteen (15) years in Montana State Prison for Count X, Burglary, a felony; and to a term of six (6) months in the Sanders County Jail for Count IX - Theft, a misdemeanor. Sentences shall run concurrently with each other and shall run concurrently with the sentence imposed in Cause No. DC 91-15. Credit is given for seventy-two (72) days.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Nik Geranios, 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 will remain the same as originally imposed.

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

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


text:
    STATE OF MONTANA, Plaintiff, vs. MELVIN NICHOLAS FORD, Defendant.
    NO. BDC 92-150
    DECISION
   On March 30, 1994, the Defendant’s sentence for Domestic Abuse (4th offense), is hereby revoked. The Defendant is sentenced to five (5) years at Montana State Prison. Credit is given for 113 days time served. Plus conditions as listed in the March 30, 1994 Judgment.

Done in open Court this 18th day of August, 1994.

SIGNED this 17th day of October, 1994.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank Melvin Ford for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. WINDELL D. WILLIAMS, Defendant.
    NO. DC 93-358
    DECISION
   On April 20,1994, the Defendant was sentenced to a term of twenty (20) years each in Montana State Prison for Count I: Sexual Intercourse without consent (felony) and to Count II: Sexual Intercourse without consent (felony). Sentences to run concurrently with each other. It is recommended that defendant not be eligible for parole until he has successfully enrolled in and completed the Montana Sex Offender Treatment Program; and until he has successfully completed the alcohol and chemical dependency treatment programs available. Plus fee, fine and conditions as listed in the April 20, 1994 Judgment. Credit is given for 268 days.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Matt Clifford, Legal Intern from the Montana Defender Project. The state was represented by Dale Mrkich, Deputy County Attorney from Billings, Montana.

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

Done in open Court this 18th day of August, 1994.

SIGNED this 17th day of October, 1994.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence will be amended to add the dangerous designation. All other portions of the sentence shall remain the same as originally imposed.

The reasons for the decision are: (1) because of the defendant’s long record of assaultive behavior, (2) the defendant is definitely a predator; (3) the Sentence Review Board finds that the dangerous designation should have been part of the original sentence.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank Matt Clifford, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court. The Sentence Review Board also wishes to thank Dale Mrkich, Deputy County Attorney for appearing on behalf of the State of Montana.


author: THE HONORABLE JOHN WARNER

text:
    STATE OF MONTANA, Plaintiff, vs. LEE PHILLIP RICHARDS, Defendant.
    NO. CR 85-20
    DECISION
    Done in open Court this 18th day of August, 1994.
    SIGNED this 17th day of October, 1994.
   On April 14,1994, the Defendant’s sentence for the offense of Sexual Assault and Sexual Intercourse without Consent is hereby revoked and the defendant is sentenced for a period of ten (10) years at Montana State Prison. Plus conditions and recommendations as listed in the April 14, 1994, Judgment. Credit is given for 30 days for time served.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Matt Clifford, 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, there is a split decision of the Sentence Review Division. Judge G. Todd Baugh and Judge Edward McLean vote to affirm the decision 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. The Sentence Review Board also finds that this crime is similar to the crime the Defendant was originally convicted of.

Hon. G. Todd Baugh, Chairman, and Hon. Edward McLean, Member.

DISSENT:

THE HONORABLE JOHN WARNER

DISSENTS, and would change the sentence to place the Defendant in the custody of Department of Corrections for ten (10) years, and grant the Defendant credit for time served while on probation. Judge Warner agrees that the defendant did violate the terms of his probation, however, he should receive credit for the time he was successfully on probation.

The reasons for wanting to amend the Judgment are: (a) the reasons for not granting credit for time served successfully on probation are not clear, (b) the record reflects that treatment for sexual offenses have been successfully completed by the Defendant; (c) the present sentence is not needed to protect the victims, who are members of his family.

Judge Warner agrees that the original offenses are similar to the one imposed here, but states that the Department of Corrections is better equipped to handle and make an appropriate decision as to what facility this Defendant should be placed in for the next ten (10) years. The sentence imposed defeats the rehabilitation progress and it will force the Defendant to lose the substantial gains he has made during his eight years on probation.

Hon. John Warner, Member.

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


text:
    STATE OF MONTANA, Plaintiff, vs. BRANT VERNON GILBERT, Defendant.
    NO. DC 93-590
    DECISION
   On June 8, 1994, the Defendant was sentenced to Montana State Prison for the term of thirty-five (35) years to run concurrently with the sentences received in Criminal Cause numbers DC 93-037 and 93-061 for the offense of Attempt (Deliberate Homicide) (Felony). For the use of a firearm, the defendant is sentenced to ten (10) years in Montana State Prison. This term shall be served consecutively with the term imposed for the commission of the crime of Attempt (Deliberate Homicide) (Felony). The defendant shall not be eligible for parole and placement in any supervised release program for the first ten (10) years of the sentence. Plus a supervisory fee and fine as stated in the June 8,1994 Judgment. Credit will be given for time spent in Yellowstone county in the amount of 168 days.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by L. Sanford Selvey, II., Chief-Public Defender, Billings, Montana. The state was not represented.

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

Done in open Court this 18th day of August, 1994.

SIGNED this 17th day of October, 1994.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the matter is dismissed without prejudice and the defendant will be allowed to refile his application at a later date. Upon receiving petition for hearing, the defendant will automatically be scheduled for the next hearing date.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank L. Sanford Selvey, II., Chief Public Defender from Yellowstone County for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. JAIME RAMON GARCIA, Defendant.
    NO. DC 93-155B
    DECISION
    Done in open Court this 18th day of August, 1994.
    SIGNED this 17th day of October, 1994.
   On May 3, 1994, the Defendant was sentenced to twenty (20) years in Montana State Prison for the offense of Forgery and one (1) year in the Flathead County Detention Center for the offense of Negligent Vehicular Assault, said terms to be served concurrently. It is further ordered that ten (10) years of the aforesaid sentence are suspended and the defendant is recommended for consideration for the Swan River Boot Camp Program, subject to conditions as stated in the May 3,1994 Judgment.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the matter is dismissed without prejudice and the defendant will be allowed to refile his application at a later date. Upon receiving petition for hearing, the defendant will automatically be scheduled for the next hearing date.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank Jaime Garcia for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. TRAVIS BRIDGER SODERBERG, Defendant.
    NO. DC 93-246B
    DECISION
    Done in open Court this 18th day of August, 1994.
    SIGNED this 17th day of October, 1994.
   On March 31, 1994, the Defendant was sentenced to a term of eight (8) years at Montana State Prison for the offense of Forgery, a felony common scheme, as charged in Count I; and to a term of twelve (12) years at Montana State Prison for the offense of Forgery, a felony common scheme, as charged in Count II. These terms are to be served consecutively for a total period of incarceration of twenty (20) years. This judgment is imposed with a recommendation that the defendant be considered for placement at the Swan River Boot Camp. Of this period of incarceration, fourteen (14) years are suspended, subject to conditions as listed in the March 31,1994 Judgment. Credit received for time served in pre-sentence incarceration for 107 days.

On August 18,1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the matter is dismissed without prejudice and the defendant will be allowed to refile his application at a later time. Upon receiving petition for hearing, the defendant will automatically be scheduled for the next hearing date.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.


text:
    STATE OF MONTANA, Plaintiff, vs. DAVID JOHN FERRE, Defendant.
    NO. 10893
    DECISION
   On April 22, 1994, the Defendant’s prior sentences were revoked and he was sentenced to a term of ten (10) years each for Count I, Assault, a felony; Count II, Intimidation, a felony; and Count IV, Criminal Possession of Dangerous Drugs with Intent to Sell, a felony. Said sentences shall run concurrently with each other. For the use of a dangerous weapon during the commission of this offense, the defendant is sentenced to an additional five (5) years on Count I in the Montana State Prison. Said sentence shall run consecutively with the sentence imposed in Count I. Credit is given for forty-nine (49) days previously served. Plus conditions as stated in the April 22, 1994 Judgment.

Done in open Court this 18th day of August, 1994.

SIGNED this 17th day of October, 1994.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Nik Geranios, 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 will be modified so as the defendant will receive credit in the amount of 76 days served during house arrest. Restitution will be required in the event that the defendant makes parole. All other portions of the sentence shall remain the same as originally imposed.

The reason for the decision is that the defendant is entitled to receive credit for time served during house arrest.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

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


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JOSEPH WILLIAM MILINOVICH, Defendant and Appellant.
    No. 93-597.
    Submitted on Briefs September 1, 1994.
    Decided December 20, 1994.
    51 St.Rep. 1433.
    269 Mont. 68.
    887 P.2d 214.

      For Appellant: Andrew P. Suenram; Jones, Hoffman & Suenram, Dillon, J. Cort Harrington, Jr., Attorney at Law, Helena.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, John P. Connor, Jr., Ass’t Attorneys General, Helena.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Joseph William Milinovich (Milinovich) appeals the Order of the Third Judicial District, Powell County, denying his motion to withdraw his guilty plea to charges stemming from the 1991 riot at the Montana State Prison. We affirm.

Milinovich was charged with one count of burglary and five counts of deliberate homicide. The charges were based on Milinovich’» alleged participation in the September 22, 1991 riot at the Montana State Prison. Milinovich plead not guilty to the charges and his trial commenced on September 21,1992. During the trial he entered pleas of guilty to the burglary charge and one reduced charge of mitigated deliberate homicide. Pursuant to the plea agreement, the State dismissed the remaining homicide counts and made no sentencing recommendation. The State maintained the right to argue for persistent felony offender designation. Further, the State agreed not to resist Milinovich’s attempts to be transferred to another state’s prison.

During the trial, after the prosecution called twenty witnesses and the defense called one witness, but prior to Milinovich’s guilty pleas, he requested a conference with the court. During this conference with the judge, the prosecution, and appointed defense counsel, Milinovich said that he did not agree with his counsel’s defense strategy, stated he did not know what to do, and asked the judge for advice. The judge stated that Milinovich was being represented by “two first-rate lawyers” who had done as good a job as possible. Several times during this conference, Milinovich expressed concern that the judge was not being impartial and was acting against him. In response, the judge asserted his neutrality and, to support his evenhandedness, described his record of fairness.

On April 5, 1993, Milinovich was sentenced to ten years in prison for the burglary plea and twenty years for the mitigated deliberate homicide plea, the sentences to run concurrent with each other and consecutive to the sentence Milinovich was already serving. Milinovich was also sentenced to an additional twenty years in prison as a persistent felony offender, and the District Court designated Milinovich a dangerous offender for purposes of parole eligibility.

On June 2, 1993, Milinovich filed a motion to withdraw his guilty pleas. The District Court denied the motion. This appeal followed.

Four issues are presented.

1. Did the District Court Judge’s comments regarding the plea agreement’s fairness unfairly induce Milinovich into entering a plea agreement?

2. Was the District Court’s participation in the plea agreement process improper?

3. Did the District Court err by failing to support its order denying Milinovich’s motion to withdraw his guilty pleas with specific findings?

4. Was Milinovich’s motion to withdraw his guilty pleas timely?

The standard of review we apply in cases involving a district court’s refusal to allow a defendant to withdraw a guilty plea is whether the district court abused its discretion. State v. Ries (1993), 257 Mont. 324, 325, 849 P.2d 184, 185.

I

Did the District Court Judge’s comments regarding the plea agreement’s fairness unfairly induce Milinovich into entering aplea agreement?

Milinovich argues that his conversation with the court created an inducement so strong that his plea was not voluntary. We disagree.

Milinovich argues that the District Court Judge’s comments regarding the plea unfairly induced him into accepting the plea. This argument is contradicted by the record. In In re Fisher (Vt. 1991), 594 A.2d 889, the judge repeatedly explained the defendant’s options, and gave him multiple opportunities to withdraw his plea. “Explaining the possible consequences of alternative courses of action does not, in and of itself, render a plea involuntary or the judge partial.” In re Fisher, 594 A.2d at 894. Similarly, in the instant case, the judge’s comments plainly expressed the law and Milinovich’s chances of parole with and without accepting the plea agreement. The judge explained Milinovich’s alternatives without bias or proposing a plea agreement for him.

Milinovich further contends that he had just heard three days of evidence against him and believed that he had to accept the plea agreement. The United States Supreme Court has long held that a plea is not involuntary simply because it was entered to avoid a greater punishment. See Brady v. United States (1970), 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747, 760. Milinovich stated that he was not changing his plea because he was guilty but rather because he believed “that the State has presented their [sic] case to the jury in such a way that [he] would be found guilty.” That Milinovich believed he would be convicted does not render his plea agreement involuntary. The District Court Judge did not induce Milinovich to accept the plea but rather discussed some of Milinovich’s options and reiterated its commitment to fairness and impartiality. We hold that the District Court did not induce Milinovich to accept the plea agreement.

II

Was the District Court’s participation in the plea agreement process improper?

Milinovich argues that a judge should be prohibited from participating in the plea process. We disagree.

Milinovich argues that Montana’s plea agreement statute, § 46-12-211, MCA, is modeled after Rule 11(e) of the Federal Rules of Criminal Procedure. He concludes that the District Court’s participation in the plea agreement process was improper in spite of the fact that Montana’s 1991 Legislature failed to adopt the federal prohibition of court participation in plea discussions. This argument is without merit.

A review of the Commission Comments to § 211 clearly indicates that the Montana Legislature did not intend to limit court participation in plea agreement discussions to certain circumstances. The Commission Comments to the plea agreement statute, § 46-12-211, MCA, state in part:

Subsection (1) identifies the parties involved in the plea agreement process. The Commission recognized that the 1987 statute precluded judicial participation in the plea negotiations, but the new statute neither prohibits nor authorizes judicial involvement. The Commission believed that circumstances sometimes warrant judicial participation in such discussions.

The Legislature did not identify limits of court participation in the plea agreement process. We must, therefore, consider on the record here, whether the court’s participation in the plea agreement process was impermissible.

The transcript here, as noted above, fails to indicate that the District Court Judge took any active role in the discussions and negotiations relative to the plea; nor did he offer or in any way indicate what the terms of the agreement should be. In addition the District Court Judge did not make any promises to Milinovich, nor did he threaten him with any action if he decided not to enter a plea of guilty. The plea bargaining process was to be made by Milinovich and the prosecution. On this record, we conclude that the District Court Judge did not improperly participate in the plea bargaining process, nor did he wrongfully induce or coerce Milinovich to enter a plea of guilty.

Ill

Did the District Court err by failing to support its order denying Milinovich’s motion to withdraw his guilty pleas with specific findings?

Milinovich argues that because the District Court’s order was not supported by specific written “details of its decision making process,” the court abused its discretion. We disagree.

Milinovich correctly cites State v. Long for the proposition that “[a]bsent an abuse of discretion, a trial judge’s decision not to allow the withdrawal of a guilty plea will be affirmed.” State v. Long (1987), 227 Mont. 199, 202, 738 P.2d 487, 489. Milinovich incorrectly relies on State v. Azure to support his contention that failure of a district court to support its order with details of its decision making process is, in and of itself, a clear abuse of discretion. See State v. Azure (1977), 175 Mont. 189, 193, 573 P.2d 179,182. la. Azure, neither the record nor the district court made clear that the defendant had a clear understanding of the charge and plea. Azure, 573 P.2d at 183. In the instant case there is no contention that Milinovich did not understand the plea. More important, the record explicitly supports the court’s order.

We consider three factors when determining whether a defendant’s guilty plea should be withdrawn:

[T]he adequacy of the court’s interrogation as to the defendant’s understanding of the plea; the promptness of the defendant’s motion to withdraw the plea; and the fact that the defendant’s plea was the result of a plea bargain in which the guilty plea was given in exchange for dismissal of another charge.
Absent an abuse of discretion, this Court will affirm a district court’s refusal to permit the withdrawal of a guilty plea.

State v. Coggins (1993), 257 Mont. 440, 442, 849 P.2d 1033, 1035; citing Long, 738 P.2d at 489. The District Court in the instant case complied with the statutory requirements for accepting a guilty plea and thereby met the first part of the Coggins test. The District Court interrogated Milinovich about his understanding of the plea and its voluntariness in open court and fully informed Milinovich of the consequences of his plea and the maximum sentence that could be imposed based on that plea. See § 46-16-110, MCA. The court informed Milinovich of his right to counsel and ascertained that Milinovich was satisfied with his counsel in connection with the plea negotiations. The court informed Milinovich of his right to continue with the trial, confront witnesses, remain silent, cross-examine State witnesses, and present evidence on his own behalf. The court made sure Milinovich understood his plea agreement.

We next consider the promptness of Milinovich’s motion to withdraw his plea. In Coggins, 849 P.2d 1033, we held a defendant’s motion to withdraw his guilty plea filed five months after he entered his guilty plea was untimely. That defendant filed his motion prior to sentencing and had participated in the preparation of his presentence report after the plea was entered. Coggins, 849 P.2d at 1035. Here, Milinovich entered his guilty plea on September 24, 1992. On June 2,1993, after sentencing, and more than eight months later, he moved to withdraw his guilty plea. During this eight-month delay, Milinovich participated in the preparation of the presentence report and did not mention his concerns about, or intention to move to withdraw, his plea. At the sentencing hearing Milinovich’s counsel reserved the right to argue a motion to withdraw his guilty plea, but did not otherwise advance the motion. Milinovich’s counsel stated that the motion was not filed earlier because each of Milinovich’s two attorneys thought the other had filed the motion. For purposes of determining whether the District Court abused its discretion in refusing to permit Milinovich to withdraw his plea, we hold that Milinovich’s motion to withdraw his plea was neither timely nor untimely. This factor works neither for nor against Milinovich for this issue.

We now turn to the third factor, whether Milinovich’s guilty plea was the result of a plea agreement in which the guilty plea was given in exchange for dismissal of another charge, and whether he had “good cause” for withdrawing his plea pursuant to § 46-16-105(2), MCA. The third factor is intended to prohibit a criminal from “escaping the obligations of his [or her] plea agreement after accepting the benefits thereof.” Coggins, 849 P.2d at 1036; citing State v. Huttinger (1979), 182 Mont. 50, 62, 595 P.2d 363, 370. The benefit granted to Milinovich was accepting a significantly lesser charge and recommended sentence and dismissal of four homicide charges. Milinovich received twenty years under the plea agreement where he could have been sentenced to 600 years had he been found guilty of the original charges. Milinovich received a great benefit from the plea agreement. Moreover, Milinovich received exactly what he bargained for. See State v. Reynolds (1992), 253 Mont. 386, 392, 833 P.2d 153, 156. We have often held that this Court “will not lend its assistance to an accused criminal in escaping his or her obligations of a plea bargain after accepting its benefits.” Reynolds, 833 P.2d at 157. Furthermore:

A change of plea will be permitted only if it fairly appears the defendant was ignorant of his rights and the consequences of his act, or he was unduly and improperly influenced either by hope or by fear in making the plea, or if it appears the plea was entered under some mistake or misapprehension. Each case must be examined on its own record. The motion rests within the District Court’s discretion and the exercise of that discretion will not be disturbed absent an abuse of discretion.

Benjamin v. McCormick (1990), 243 Mont. 252, 256, 792 P.2d 7, 10; citing State v. Mesler (1984), 210 Mont. 92, 96, 682 P.2d, 714, 716. In the case at bar, the record suggests no violation of any of the factors considered in Benjamin. The District Court did not abuse its discretion when it denied Milinovich’s motion to withdraw his guilty plea.

It is appropriate for district courts to explain their reasoning when refusing motions to withdraw guilty pleas. However it was not an abuse of discretion for the court in this case not to fully explain its reasoning because the record clearly supports the refusal to grant Milinovich’s motion to withdraw his guilty plea. Because we have concluded that Milinovich’s pleas were voluntary, the pleas were properly accepted by the court, and the motion to withdraw the pleas was properly denied, we need not consider the timeliness question presented in issue four.

Affirmed.

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


text:
    STATE OF MONTANA, Plaintiff, vs. RORY RAYMOND JOHNS, Defendant.
    NO. 5626
    DECISION
   On March 31, 1981, the Defendant was sentenced to a term of seventy (70) years in Montana State Prison for the offense of Deliberate Homicide, a felony. The defendant shall be designated a dangerous offender for the purposes of parole. The defendant shall not be eligible for furlough program. Credit is given for 36 days time served in the Missoula County Jail.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

Done in open Court this 18th day of August, 1994.

SIGNED this 17th day of October, 1994.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank Rory Johns for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. NICHOLAS MILLER, Defendant.
    NO. DC 94-019
    DECISION
    Done in open Court this 18th day of August, 1994.
    SIGNED this 17th day of October, 1994.
   On April 19,1994, the Defendant was sentenced to the Department of Corrections and Human Services to be placed in an appropriate institution, such as Montana State Hospital, for custody, care and treatment for the term of ten (10) years for the offense of Burglary, a felony. Credit is received in the amount of 97 days. It is recommended that the defendant be placed in the Montana State Hospital immediately for treatment. Plus fees and a fine as ordered in the April 19,1994 Judgment.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was proceeded Pro Se. The state was represented by Dale Mrkich, Deputy County Attorney from Billings, Montana.

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank Nicholas Miller for representing himself in this matter; and also wishes to thank Dale Mrkich, Deputy County Attorney from Billings, Montana, for appearing on behalf of the State of Montana.


text:
    STATE OF MONTANA, Plaintiff, vs. DENISE FERN TIPKE, Defendant.
    NO. 8455
    DECISION
    Done in open Court this 18th day of August, 1994.
    SIGNED this 17th day of October, 1994.
   On May 24,1994, the Defendant’s prior suspended sentence for Accountability for Theft, was revoked and she was sentenced to the Department of Corrections for a term of six (6) years for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. Credit is given in the amount of twenty-eight (28) days.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Terry Sehestedt, Attorney at Law, from Missoula, Montana. The state was not represented.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence 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 and that the defendant has done the time imposed by the Sentence Review Board and she now has the time to do on her revoked suspended sentence.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank Tterry Sehestedt for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. TRACY ANN WOLLASTON, Defendant.
    NO. DC 93-247(a)
    DECISION
   On April 7, 1994, the Defendant was sentenced to a term of ten (10) years at the Women’s Correctional Center for Count I, Deceptive Practices, a felony common scheme; and to a term of ten (10) years at the Women’s Correctional Center for Count II, Issuing a bad check, a felony common scheme. Sentences are to be served concurrently. Credit is given for 114 days. The court finds the defendant to be a persistent felony offender and sentences her to a term of ten (10) years at the Women’s Correctional Center. This sentence is to be served consecutively to the previously imposed sentence for a total of term of twenty (20) years. Plus conditions as listed in the April 7,1994 Judgment.

Done in open Court this 18th day of August, 1994.

SIGNED this 17th day of October, 1994.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Herman A. Watson, III, Attorney at Law from Bozeman, Montana. The state was not represented.

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank Herman A. Watson, III, Attorney at Law from Bozeman, Montana for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. DARREN DEAN YARDE, Defendant.
    NO. DC 93-251B
    DECISION
   On March 25,1994, the Defendant was sentenced to a term of twenty (20) years in Montana State Prison for the offense of Forgery, a felony common scheme. The defendant must successfully complete all phases of the chemical dependency treatment program available at that facility, and any further mental health counseling deemed appropriate by his supervising officers, before being considered eligible for parole. If parole is ultimately allowed, the defendant must follow all recommendations resulting from that treatment and counseling as a condition of his release from prison. Of this period of incarceration, twelve (12) years are suspended subject, to conditions listed in the March 25, 1994 Judgment. Credit is given for 115 days served in Flathead Co. Detention Center.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

Done in open Court this 18th day of August, 1994.

SIGNED this 17th day of October, 1994.

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank Dairen Yarde for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. MATTHEW D. HENDRICKSON, Defendant.
    NO. DC 94-016(A)
    DECISION
   On May 20,1994, the Defendant was sentenced to Five (5) years at Montana State Prison for Count I, Issuing a bad check, a felony common scheme; Five (5) years at Montana State Prison for Count II, Deceptive Practices, a felony; Five (5) years at Montana State Prison for Count III, Deceptive Practices, a felony; and Five (5) years at Montana State Prison for Count IV: Deceptive Practices, a felony. All of the above sentences imposed by this court are to be served consecutively to each other. The total sentence imposed in this matter is twenty (20) years. Credit is given for 118 days served in presentence detention. Should the defendant be granted parole, he must abide by all conditions listed in the May 20,1994 Judgment.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Nik Geranios, 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 will 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.

Done in open Court this 18th day of August, 1994.

SIGNED this 17th day of October, 1994.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

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


text:
    STATE OF MONTANA, Plaintiff, vs. GEORGE F. ALLEN, Defendant.
    NO. DC:91-023B
    DECISION
    Done in open Court this 18th day of August, 1994.
    SIGNED this 17th day of October, 1994.
   On June 24,1991, the Defendant was sentenced to a term of imprisonment in the Montana State Prison for a period of twenty (20) years for the offense of Criminal Possession of Dangerous Drugs With Intent to Sell, a Felony. The Court further suspends six (6) years of said sentence. The defendant is designated a dangerous offender for purposes of eventual eligibility for parole. Credit is given in the amount of 164 days and the defendant shall abide by all conditions as listed in the June 24, 1991 Judgment.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Matt Clifford, 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. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

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


text:
    STATE OF MONTANA, Plaintiff, vs. JOHN RAY GOOCH, Defendant.
    NO. DC 93-006
    DECISION
    Done in Open Court this 18th day of August, 1994.
    SIGNED this 12th day of September, 1994.
   On March 23, 1994, the Defendant’s deferred imposition of sentence entered on April 21,1993, was revoked. Defendant was sentenced to seven (7) years in Montana State Prison for Count I, Felony Assault. Prior to being eligible for parole, defendant must complete the chemical dependency and anger management programs at the prison. Upon any parole, defendant will be subject to the conditions contained herein. Defendant is given credit for one hundred fifty-five (155) days which includes the twenty-three (23) days for which defendant received credit in the original judgment. Defendant is designated a dangerous offender for purposes of parole. Plus conditions as listed in the March 23,1994 Judgment.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

Hon. G. Todd Baugh, Chairman, Hon. Robert Boyd and Hon. Ed McLean, Members.

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


text:
    STATE OF MONTANA, Plaintiff, vs. PAUL E. PARPART, Defendant.
    NO. DC 93-380
    DECISION
   On May 23, 1994, the Defendant was sentenced to the term of ten (10) years on Count I, for Negligent Homicide. For Count II, Negligent Vehicular Assault, the defendant is sentenced for the term of one (1) year to run concurrently with the sentence received in Count I. The last three (3) years of said prison sentence is suspended, and said defendant is hereby placed on probation for the last three (3) years of said period of ten (10) years, and the court retains jurisdiction of said defendant in the above entitled cause during the entire term of said imprisonment above-mentioned, and the last three (3) years of said prison sentence is suspended. In all other respects, the previous Orders, conditions and reasons of this Court stated on the 16th day of March, 1994, and entered on the 4th day of April, 1994, shall remain unchanged and are reimposed and shall continue as if set forth herein, all under authority of this Court and defendant’s Supervision Officer.

Done in Open Court this 18th day of August, 1994.

SIGNED this 11th day of October, 1994.

On August 18, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by L. Sanford Selvey, II, Chief Public Defender, from Billings, Montana. The state was represented by Dale Mrkich, Deputy County Attorney, from Billings, Montana.

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that 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. Robert Boyd, Chairman, Hon. John Warner and Hon. Ed McLean, Members.

The Sentence Review Board wishes to thank L. Sanford Selvey, II, Chief Public Defender from Yellowstone County for his assistance to the defendant and to this Court; and would also like to thank Dale Mrkich, Deputy County Attorney from Billings for appearing on behalf of the State of Montana.


author: JUSTICE NELSON

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY, Plaintiff/Respondent, v. GARY GLASSING, Defendant/Appellant.
    No. 93-634.
    Submitted on Briefs August 18, 1994.
    Decided December 20, 1994.
    51 St.Rep. 1437.
    269 Mont. 76.
    887 P.2d 218.

      For Appellant: Susan P. Roy, Garlington, Lohn & Robinson, Missoula.
    For Respondent: Gary M. Zadick, Ugrin, Alexander, Zadick & Slovak, Great Falls.
   JUSTICE NELSON

delivered the Opinion of the Court.

Defendant Gary Glassing (Glassing) appeals an order of the Eighth Judicial District Court, Cascade County, denying his motion for summary judgment and granting summary judgment in favor of plaintiff, St. Paul Fire & Marine Insurance Company (St. Paul). We reverse.

While Glassing raises three issues on appeal, we shall only address one issue, as it is dispositive of the case:

Is St. Paul’s action barred by the statute of limitations?

This case was previously before us in St. Paul Fire & Marine Ins. Co. v. Allstate Ins. Co. (1993), 257 Mont. 47, 847 P.2d 705 (St. Paul I), which set forth the underlying facts giving rise to this action.

St. Paul’s insured, Ellen Lynn (Lynn), and Glassing were involved in a motor vehicle collision in Bozeman on June 12,1985. Lynn filed a personal injury action against Glassing in Gallatin County District Court, and on November 17, 1989, judgment was entered in favor of Lynn in the net amount of $95,377.92.

At the time of the underlying motor vehicle collision, St. Paul insured Lynn with a policy which provided coverage in the event that Lynn was injured by an underinsured motorist. At the same time, Allstate insured Glassing against liability resulting from the operation of his motor vehicle. However, the limit of Glassing’s liability coverage was $50,000.

On December 15, 1989, Lynn made a demand for underinsured motorist benefits to her insurer, St. Paul. St. Paul paid Lynn on or about May 31,1990, in the amount of $51,461.16, which represented the difference between Glassing’s $50,000 policy limits and the judgment with interest to the date of St. Paul’s payment. On June 28, 1990, Lynn executed a release in favor of Glassing and Allstate, wherein Lynn acknowledged the receipt of $50,000, the policy limits of Glassing’s liability coverage. After receiving payment from Allstate and St. Paul, Lynn filed a satisfaction of judgment on October 11, 1990. Stipulations of dismissal with prejudice were entered on October 11, 1990, and October 15, 1990, dismissing the Lynn v. Glassing action.

St. Paul initiated this action against Glassing on July 24,1990, to recover the $51,461.16 payment, together with interest and costs it paid to Lynn pursuant to her underinsured motorist coverage. St. Paul originally filed its complaint in the United States District Court, however, the complaint was subsequently dismissed and refiled in the Eighth Judicial District, Cascade Comity. Glassing then moved to dismiss the complaint on the grounds that the District Court lacked personal jurisdiction over him. This Court reversed the District Court’s ruling in Sí. Paul I, that this state lacked personal jurisdiction over Glassing, and remanded the case for further proceedings. St. Paul I, 847 P.2d at 708.

On remand, Glassing moved for summary judgment pursuant to Rule 56, M.R.Civ.P., on three grounds:

(1) St. Paul’s claim was barred by the statute of limitations;
(2) St. Patd’s claim was barred by the release and satisfaction of judgment in the underlying action;
(3) Glassing was not underinsured.

After considering the briefs and arguments of the parties, the District Court rejected Glassing’s arguments and granted summary judgment in favor of St. Paul, in a Memorandum Opinion and Order filed August 6, 1993. Glassing appeals from that order.

STANDARD OF REVIEW

The standard of review that this Court applies in reviewing a grant of summary judgment is the same as that initially utilized by the district court. Youngblood v. American States Ins. Co. (1993), 262 Mont. 391, 394, 866 P.2d 203, 204. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Youngblood, 866 P.2d at 204.

While there do not appear to be any material facts in dispute, we nevertheless, conclude that St. Paul was not entitled to judgment as a matter of law on the undisputed facts. We review a district court’s conclusions of law to determine whether they are correct. Matter of Estate of Langendorf (1993), 262 Mont. 123, 125, 863 P.2d 434, 436. We determine, in this case, that the District Court did not apply the correct law, and that St. Paul was not entitled to summary judgment.

STATUTE OF LIMITATIONS

One issue raised by Glassing is dispositive of this appeal. Glassing contends that St. Paul’s suit is barred by the statute of limitations. We agree.

In support of his argument, Glassing maintains that the same statute of limitations applies to an action for subrogation as applies to the injured party’s claim. Because the accident occurred on June 12,1985, and St. Paul did not file its action for subrogation until July 24, 1990, Glassing argues that the applicable three year statute of limitations on Lynn’s negligence claim had expired, thus barring St. Paul’s claim. See, § 27-2-204, MCA.

The District Court however, ruled that St. Paxil’s right of subrogation did not accrue xrntil its duty to pay was triggered by the rendering of the excess judgment in favor of St. Paul’s insured, Lynn. The coxxrt concluded that “[plrior to that time neither Lynn’s right to underinsxired motorist benefits nor St. Paxil’s right to subrogation existed.” In reaching its conclusion that the statute of limitations had not expired on St. Paul’s claim, the District Court determined a distinction existed between uninsured motorist benefits and underinsured motorist benefits. The court concluded that “[u]nderinsured motorist benefits are not triggered xrntil a settlement or judgment has been rendered by which the insured persons damages are not fully compensated.” Therefore, the court foxind that St. Paxil’s subrogation claim did not accrue or come into existence xrntil November 17,1989, the date judgment was rendered in Gallatin Coxinty. Accordingly, the coxirt concluded that St. Paul’s suit was timely filed. However, the coxirt did not state what the applicable statute of limitations woxild be on St. Paxil’s suit against Glassing. We conclude that the District Coxirt erred in ruling that St. Paul’s claim was not time-barred for two reasons.

First, the court’s conclusion that St. Paul’s claim accrued on the date of judgment ignores the basic premise of subrogation; that as a subrogee, St. Paul has no independent claim for its damages. It is a well established principle of subrogation law, that subrogation is “the substitution of another person in place of the creditor, so that the person substituted will succeed to the rights of the creditor in relation to the debt or claim.” Skauge v. Mountain States Tel. & Tel. (1977), 172 Mont. 521, 526, 565 P.2d 628, 630.

Additional subrogation principles provide:

Subrogation confers no greater rights than the subrogor had at the time the surety became subrogated. The subrogated insurer stands in the same position as the subrogor, for one cannot acquire by subrogation what another, whose rights he claims, did not have.

16 Couch on Insurance 2d, § 61:36 (1983).

The right of subrogation is purely derivative as the insurer succeeds only to the rights of the insured, and no new cause of action is created. In other words, the concept of subrogation merely gives the insurer the right to prosecute the cause of action which the insured possessed against anyone legally responsible for the latter’s harm....

16 Couch on Insurance 2d, § 61:37 (1983).

Because an insurer’s claim is derived from that of the insured, its claim is subject to the same defenses, including the statute of limitations as though the action were sued upon by the insured. Beedie v. Shelly (1980), 187 Mont. 556, 561, 610 P.2d 713, 716. Accordingly, St. Paul’s claim is derivative of Lynn’s claim, and her claim accrued on June 12,1985, the date of the accident.

Second, we are cited to no authority for the proposition that the principles of subrogation vary with the type of risk insured against. We recognize that there are jurisdictions which have statutes extending the limitation period for subrogation claims of insurers that have paid damages to their insureds under uninsured or underinsured motorist policy provisions from the date of payment made under the policy. See, Liberty Mut. Ins. Co. v. Fales (Cal. 1973), 505 P.2d 213. However, Montana has no such statutory authority extending the limitation date. Whether there should be such a statute is a matter to be determined by the legislature.

Rather, this Court follows the general principles of subrogation which provide:

Since the insurer’s claim by subrogation is derivative from that of the insured, it is subject to the same statute of limitations as though the cause of action were sues upon by the insured. Consequently, the insurer’s action is barred if it sued after expiration of the period allowed for the suing out of tort claims.

16 Couch on Insurance 2d, § 61:234 (1983).

. On appeal, St. Paul argues that the following statement from St Paul I, supports its contention that its right to subrogation arose upon the rendering of the judgment:

St. Paul’s right to subrogation arises from the judgment entered in favor of its insured against the defendant, and that judgment is the result of the defendant’s tortious conduct within the State of Montana.

St. Paul I, 847 P.2d at 707. We note however, that we made this statement in relation to the jurisdiction question which was before us. We concluded that the District Court had personal jurisdiction over Glassing because of the tortious conduct which occurred in the State of Montana, and that the judgment was entered as a result of this tortious conduct. Therefore, the statement does not support St. Paul’s argument that its subrogation rights arose upon judgment.

It is apparent from St. Paul’s argument, that St. Paul confuses the accrual of a claim for subrogation, and the attachment of the right of subrogation. An insurer’s right to subrogation attaches, by operation of law, upon paying an insured’s loss. Skauge, 565 P.2d at 630. Accordingly, we held in St. Paul I, that “[i]n this case, St. Paul became substituted for its insured as a matter of law when it paid Ellen Lynn pursuant to its insurance policy with her and is entitled to pursue her right to collect the amount of her judgment against the defendant.” St. Paul I, 847 P.2d at 707. While St. Paul’s right to subrogation arose upon its payment to Lynn, the right to subrogation does not operate to extend the statute of limitations.

While a subrogated insurer frequently contends that its action against the third-party tortfeasor who allegedly caused the damage or injury for which the insurer had to recompense its insured did not accrue, and the statute of limitations did not begin to run thereon, until the insurer had made the payments required under its insurance contract, courts have held, generally, that such a contention was without merit.... [T]he statute of limitations begins to run on such actions at the same time that the statute of limitations would have begun to run on the insured’s action ... against the third-party tortfeasor.

Annotation, ‘When Does Statute of Limitations Begin to Rim upon Action by Subrogated Insurer Against Third-Party Tortfeasor,” 91 ALR 3d 844, 850 § 3; See also, Beedie, 610 P.2d at 716; Preferred Risk Mut. Ins. Co. v. Vargas (Ariz.App. 1988), 754 P.2d 346; Nationwide Mut. Ins. Co. v. State Farm (N.C.App. 1993), 426 S.E.2d 298.

Finally we note that St. Paul could have protected its subrogation interest. St. Paul could have intervened in the action filed by Lynn against Glassing. See, Dominici v. State Farm Mut. Auto. Ins. Co. (1964), 143 Mont. 406, 414, 390 P.2d 806, 810, (recognizing the right of the uninsured motorist insurer to intervene).

For the above stated reasons we hold that St. Paul’s subrogation claim against Glassing was barred by the statute of limitations, and that the District Court erred in concluding that St. Paul was entitled to judgment as a matter of law. Accordingly, we remand this case to the Eighth Judicial District Court for entry of an order granting summary judgment to Glassing.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

CHIEF JUSTICE TURNAGE, JUSICES HARRISON, WEBER, GRAY, TRIEWEILER and HUNT concur.


text:
    STATE OF MONTANA, Plaintiff, vs. SCOTT THOMAS TONEY, Defendant.
    NO. DC 93-018B
    DECISION
    Done in open Court this 13th day of October, 1994.
    SIGNED this 22nd day of November, 1994.
   On June 1,1994, the Defendant was sentenced to a ten (10) year sentence to the Montana State Prison for the offense of Theft, a Felony. In Cause No. DC 94-063B, that the defendant be sentenced to Montana State Prison for a period of twelve (12) years which shall be consecutive to the sentence previously imposed in Cause No. DC 93-018B for Theft. The last six (6) years of this sentence shall be suspended upon all of the conditions previously imposed for conditions of the suspended sentence in Cause No. DC 93-018B. Credit is given in the amount of 342 days.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

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

The Sentence Review Board wishes to thank Scott Tbney for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. GEORGE HOWARD SCHILMAN, Defendant.
    NO. DC 94-137(a)
    DECISION
    Done in open Court this 13th day of October, 1994.
    SIGNED this 2nd day of December, 1994.
   On August 31, 1994, the defendant was sentenced to a term of ten (10) years at Montana State Prison for the offense of theft, a felony. This sentence is to be served consecutive to that imposed in Cause No. DC 91-057(A) and DC 92-058(X). It is also this court’s recommendation that the defendant be favorably considered for placement at the Swan River Boot Camp. In the event that the defendant is granted parole, he must, as a condition of supervision, pay $515.00 in restitution to his victims in this matter. The defendant must also reimburse Flathead County for $500.00 in fees incurred as the result of his representation by a public defender. The defendant shall be given credit for sixty-four (64) days for time served in the Flathead County Detention Center.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that the matter will be continued, with permission to refile for Sentence Review after boot camp is completed.

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

The Sentence Review Board wishes to thank George Schilman for representing himself in this matter.


text:
    STATE OF MONTANA, Plaintiff, vs. ALVIN PLAINBULL, Defendant.
    NO. ADC 93-287
    DECISION
   On May 20,1994, the defendant was sentenced to Montana State Prison for a period of eight (8) years for the offense of Theft, a Felony. The defendant is given credit for time already served in the Cascade County Detention Center, a total of 218 days. The defendant shall participate in an alcohol treatment program while incarcerated and shall participate in on-going treatment as a condition of his parole.

On October 13,1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

Done in open Court this 13th day of October, 1994.

SIGNED this 22nd day of November, 1994.

The Defendant was present and was represented by Matt Clifford, 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 be amended. The defendant shall be committed to the Department of Corrections for eight years.

The reason for the amended decision is because of a possible clerical error in the sentencing judgment. The Department of Corrections is best situated to properly place the defendant.

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

The Sentence Review Board wishes to thank Matt Clifford, Legal Intém from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. MARTIN CHARLES MOORMAN, Defendant.
    NO. DC 82-64
    DECISION
   On July 6, 1994, the Defendant was sentenced to fifteen (15) years in Montana State Prison for the offense of Robbery, a Felony, with none suspended. The defendant shall receive credit for jail time served in Washington and Montana on this and previous revocations, which as of the date of this judgment totals one hundred twenty-six (126) days. The defendant shall not receive credit for any other elapsed probationary time due to his violations of his probation. The Court recommends that the defendant not be considered eligible for parole until he has successfully completed the Addictive Diseases Study Program at the Montana State Prison. The Court further orders that the defendant shall continue to be designated a dangerous offender for purposes of his parole. The Court orders that in the event the defendant secures early release from prison via parole, that he shall be responsible for restitution to the victim of the offense, as previously ordered on November 8,1982, as follows: David Cochrane - $1131.89, Crime Victim’s Unit - $120.95; and for costs of extradition ordered on March 4, 1992 in the amount of $1575.00.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Mike Claque, 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.

Done in open Court this 13th day of October, 1994.

SIGNED this 22nd day of November, 1994.

After careful consideration, there is a split decision of the Sentence Review Division. Judge G. Todd Baugh and Judge Ted O. Lympus vote to affirm the decision 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. The Sentence Review Board also finds that the Hon. C.B. McNeil did consider the underlying requirements to impose the dangerous designation.

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

DISSENT:

THE HONORABLE JOHN WARNER

DISSENTS, and would amend the sentence by removing the dangerous designation.

Judge Warner finds that the record does not justify a dangerous designation. The legality for the dangerous designation is more properly a matter for post-conviction relief.

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


text:
    STATE OF MONTANA, Plaintiff, vs. THOMAS RALPH LEVITON, Defendant.
    NO. DC 90-46
    DECISION
   On June 27,1994, the Defendant was sentenced to the custody of the Department of Corrections of the State of Montana for a term of four (4) years, eleven (11) months for the offense of Violation of the terms of the suspended sentence for the crime of Burglary, a felony. The defendant shall receive no "street time" accrued since the Judgment entered February22,1994. The defendant shall be given credit for seventeen (17) days served in the County Jail.

On October 14, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

Done in open Court this 14th day of October, 1994.

SIGNED this 22nd day of November, 1994.

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. JAY BRIAN JOHNSON, Defendant.
    NO. CDC 92-175
    DECISION
    Done in open Court this 13th day of October, 1994.
    SIGNED this 22nd day of November, 1994.
   On June 21, 1993 the defendant was sentenced to twenty (20) years for Count I: Aggravated Kidnapping, a Felony, and to 20 years for Count II: Sexual Intercourse Without Consent to be served at Montana State Prison. The sentences are to be served consecutively. Credit is given for 352 days time served. For purposes of parole eligibility the defendant is designated a dangerous offender.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

After careful consideration, it is the unanimous decision of the Sentence Review Division that a continuance is granted. The hearing will be scheduled for the next Sentence Review date and there will be no further delays after that time.

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


text:
    STATE OF MONTANA, Plaintiff, vs. BERNARD THOMAS HOCHBRUECKNER, Defendant.
    NO. DC 94-95(A)
    DECISION

      Done in open Court this 13th day of October, 1994.
    SIGNED this 2nd day of December, 1994.
   On July 30, 1994 the defendant was sentenced to a term of imprisonment at Montana State Prison for a period of twenty (20) years for the offense of Forgery, a Felony Common Scheme. Credit is given for 82 days of pre-sentence incarceration. The Court finds that the defendant is a dangerous offender and shall not be considered for parole until he has obtained a Chemical Dependency Evaluation and following its recommendations, and mental health evaluation and, if available, the criminal behavior program. Five years of the above imposed sentence shall be suspended upon conditions as listed in the July 30,1994 judgment.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

The reason for the decision is (A): 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. (B): that the defendant has an exceptionally long record of criminal conduct.

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

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


text:
    STATE OF MONTANA, Plaintiff, vs. BRANT VERNON GILBERT, Defendant.
    NO. DC 93-590
    DECISION
   On June 8, 1994, the Defendant was sentenced to Montana State Prison for the term of thirty-five (35) years to run concurrently with the sentences received in Criminal Cause Numbers DC 93-037 and 93-061 for the offense of Attempt (Deliberate Homicide) (Felony). For the use of a firearm, the defendant is sentenced to ten (10) years in Montana State Prison. This term shall be served consecutively with the term imposed for the commission of the crime of Attempt (Deliberate Homicide) (Felony). The defendant shall not be eligible for parole and placement in any supervised release program for the first ten (10) years of the sentence. Plus a supervisory fee and fine as stated in the June 8,1994 Judgment. Credit will be given for time spent in Yellowstone County in the amount of 168 days.

Done in open Court this 13th day of October, 1994.

SIGNED this 22nd day of November, 1994.

On October 13, 1994, the Defendant’s application for review of that sentence was reviewed by the Sentence Review Division of the Montana Supreme Court.

The Defendant was not present and was not represented by counsel. The state was not represented.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the review of sentence shall be stayed pending completion of the program at Swan River and resolution of modification of sentence by sentencing court.

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


text:
    STATE OF MONTANA, Plaintiff, vs. MARK BEDDOW, Defendant.
    NO. DC 87-018-A
    DECISION
   On August 11,1994, the defendant was committed to the Department of Corrections for evaluation and proper placement for the remainder of his suspended sentences, with the sentences to run concurrently. On October 12,1987, the Court imposed a six (6) year deferred imposition of sentence on the defendant for the crimes of Criminal Sale of Dangerous Drugs, two counts, felonies, and Criminal Possession of Dangerous Drugs, one count, felony. On April 26, 1990, the previous sentence was revoked and the defendant was sentenced to ten (10) years at the Montana State Prison, with five (5) years suspended for two counts of Criminal Sale of Dangerous Drugs, to run concurrently, and five (5) years suspended for the one count of Criminal Possession of Dangerous Drugs, to run concurrently with the previous two counts.

On October 13, 1994, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

A second amended judgment was entered in Dawson County on October 20,1994. Said judgment ordered Defendant’s sentences to nm concurrently and set the time remaining. Upon consideration of the Second Amended Order and the record presented it is the decision of the Sentence Review Division that the Defendant’s sentence remain the same as stated therein.

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. The Sentence Review Board finds that the Department of Corrections can best determine the appropriate placement of the defendant.

Done in open Court this 13th day of October, 1994.

SIGNED this 2nd day of December, 1994.

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

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