State v. Gwin ( 2013 )

On April 20,2005, the Defendant was sentenced for the offense of Forgery, a Common Scheme, a felony, in violation of Section 45-6-325(l)(b), MCA, imposition of sentence shall be deferred for a period of Three (3) years. The deferred imposition of sentence shall be upon the conditions outlined in the Judgment given April 20, 2005.

Deferred imposition of sentence entered April 20, 2005, was revoked. On September 28, 2005, the Defendant was sentenced for the offense of Forgery, a Common Scheme, a felony, in violation of Section 45-6-325(l)(b), MCA, committed to the Department of Corrections for a term of Ten (10) years with Eight (8) years suspended. The Defendant shall receive credit for time served in initial sentencing of forty-two (42) days and on this revocation since her arrest which totals fifty-five (55) days as of the date of this Judgment; and other terms and conditions given in the Judgment and Commitment September 28, 2005.

The suspended sentence entered on September 28, 2005, was revoked. On December 26, 2012, the Defendant was sentenced for the offense of Forgery, a Common Scheme, a felony, in violation of Section 45-6-325(l)(b), MCA, committed to the Department of Corrections for a term of Five (5) years with Three (3) years suspended. The Defendant shall receive credit for time served on this revocation of 57 days. The Defendant shall not receive credit for any other elapsed probationary time due to her violations of her probation; and other terms and conditions given in the Judgment December 26, 2012.

On October 4,2013, the Defendant’s Application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court (hereafter “the Division”).

The Defendant was present and was represented by Ed Sheehy, Jr., Attorney at Law. The State was not represented.

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

Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that, “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 46-18-904(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.

Therefore, it is the unanimous decision of the Division that the sentence shall be AFFIRMED.

Done in open Court this 4th day of October, 2013.

Chairperson, Hon. Loren Tucker, Member Hon. Brad Newman and Member Hon. Kathy Seeley.