State v. McGrail ( 1997 )

On June 24,1996, it was ordered that the defendant be sentenced on Count I, Sexual Intercourse Without Consent, a Felony, to the Montana State Prison for a period of forty (40) years. The Court suspends the last ten (10) years of said sentence. On Count IV, Sexual Intercourse Without Consent, a Felony, the Court sentences the defendant to the Montana State Prison for a period of forty (40) years. The Court suspends the last ten (10) years of said sentence. On Count VI, Sexual Intercourse Without Consent, a Felony, the Court sentences the defendant to the Montana State Prison for a period of forty (40) years. The Court suspends the last ten (10) years of said sentence. On Count VII, Sexual Intercourse Without Consent, a Felony, the Court sentences the defendant to the Montana State Prison for a period of forty (40) years. The Court suspends the last ten (10) years of said sentence. The sentences imposed herein shall run concurrently. Defendant is ineligible for parole for ten (10) years. Defendant is given credit for 216 days served. The Court grants the State’s motion to dismiss Counts II, III and V. Defendant shall be subject to conditions as stated in the June 24, 1996 judgment.

On October 16, 1997, 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 via phone call from Spur, TX. 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 16th day of October, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal and Member, Hon. Richard Phillips

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