State v. Lamar ( 2007 )

On May 1, 2007, the defendant was sentenced to the following: Count I: Forty (40) years in the Montana State Prison, for the offense of Aggravated Burglary, a felony; Count II: Ten (10) years in the Montana State Prison, for the offense of Aggravated Kidnapping, a felony; and Count III: One hundred (100) years in the Montana State Prison for the offense of Sexual Intercourse Without Consent, a felony.

On November 1,2007, 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 Eric Olson. The state was represented by Kirsten LaCroix, who appeared via videoconference.

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 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 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.” (§46-18-904(3), MCA).

Done in open Court this 1st day of November, 2007. DATED this 15th day of November, 2007.

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. However, the Sentence Review Division notes that counsel’s argument is essentially one of ineffective assistance of counsel, which is not properly raised before the Sentence Review Division, but either with the trial court for post conviction proceedings or appealed to the Montana Supreme Court.

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

Chairperson, Hon. Randal I. Spaulding, Member, Hon. Katherine Irigoin and Member, Hon. Stewart Stadler.