State v. Delos Santos , 281 Mont. 26 ( 1996 )

On February 3, 1994, it was ordered that the defendant is guilty and shall be sentenced to Montana State Prison as follows: Count I: Deliberate Homicide of Thelma Gebhardt, a Felony; Life in prison and an additional ten (10) years, to be served consecutively, under the authority of 46-18-221, MCA, for the use of a dangerous weapon in the commission of the crime. Count II: Deliberate Homicide of Walter Gebhardt, a Felony; Life in prison and an additional ten (10) years, to be served consecutively, under the authority of 46-18-221, MCA, for the use of a dangerous weapon in the commission of the crime. This sentence shall be served consecutively to Count I. Count III: Theft, a Felony; Ten (10) years in Montana State Penitentiary, to be served concurrently with Counts I and II. It is further ordered that, as allowed by 46-18-202(2), MCA, the defendant shall be ineligible for parole and participation in the supervised release program on these charges.

On March 8,1996, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

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

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

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

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

Done in open Court this 8th day of March, 1996.

Chairman, Hon. Ted O. Lympus Member, Hon. Jeffrey M. Sherlock Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Jose Delos Santos, II for representing himself in this matter.