State v. McVey ( 2013 )

On May 13, 2008, the Defendant was sentenced for Count I: Theft by Embezzlement, a felony, in violation of Section 45-6-301(7), MCA, Ten (10) years at Montana Women’s Prison, Ten (10) years suspended; Count II: Theft by Embezzlement, a felony, in violation of Section 45-6-301(7), MCA, Ten Years at Montana Women’s Prison, Ten (10) years suspended, to run consecutive to the sentence in Count I; and Count III: Forgery, a felony, in violation of Section 45-6-325(4), MCA, Twenty (20) years at Montana Women’s Prison, Twenty (20) years suspended, to run consecutive to the sentence in Count II. Defendant shall be placed under the supervision of the Department of Corrections, subject to all statutes and rules and regulations of the Adult Probation and Parole Bureau; and other terms and conditions outlined in the Judgment given May 13, 2008.

On February 26,2013, the sentence imposed on May 13,2008, was revoked. The Defendant was sentenced for Count I: Theft by Embezzlement, a felony, in violation of Section 45-6-301(7), MCA, Ten (10) years at Department of Corrections with recommendation that Defendant be screened for treatment programs involving mental health and chemical dependency, specifically Passages and Elkhorn Programs, credit for time served of 120 days; Count II: Theft by Embezzlement, a felony, in violation of Section 45-6-301(7), MCA, Ten Years at Montana Women’s Prison, Ten (10) years suspended, credit for time served of 120 days, to run consecutive to the sentence in Count I; and Count III: Forgery, a felony, in violation of Section 45-6-325(4), MCA, Twenty (20) years at Montana Women’s Prison, Twenty (20) years suspended, credit for time served of 120 days, to run consecutive to the sentence in Count II.

DATED this 28th day of October, 2013.

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.