State v. Ferguson , 377 Mont. 54 ( 2014 )

On July 11,2013, the Defendant was sentenced for Count I: Improper Influence in Official and Political Matters, a felony, in violation of Section 45-7-102, MCA imposition of sentence on Count I shall be deferred for a period of Three (3) years; for Count VI: Assault with Bodily Fluid, a misdemeanor, in violation of Section 45-5-214, MCA shall be deferred for a period of One (1) year; and for Count VII: Assault with Bodily Fluid, a misdemeanor, in violation of Section 45-5-214, MCA shall be deferred for a period of One (1) year; Count VH shall run concurrent to Count VI and Counts VI and VH shall run concurrently to Count I; receive credit for time served on this offense of 64 days; the deferred imposition of sentence shall be upon the terms and conditions given in the Judgment on July 11, 2013.

On January 30,2014, the deferred sentence entered on July 11,2013, was revoked. On January 30,2014, the Defendant was sentenced for Count I: Improper Influence in Official and Political Matters, a felony, in violation of Section 45-7-102, MCA for Count VI: Assault with Bodily Fluid, a misdemeanor, in violation of Section 45-5-214, MCA; and for Count VH: Assault with Bodily Fluid, a misdemeanor, in violation of Section 45-5-214, MCA to commitment to the Department of Corrections for a term of Ten (10) years with Five (5) years suspended; receive credit towards his sentence for 21 days he served in Boot Camp and for 28 days served in an inpatient treatment program; shall not receive credit for any other elapsed probationary time due to his violations of probation; and other terms and conditions given in the Judgment and Commitment on January 30, 2014.

On May 8, 2014, 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 Jorden Ramler, an intern with the Montana Office of Public Defender, under the supervision ofEd Sheehy, Jr., Attorney at Law. The State was not represented.

DATED this 28th day of May, 2014.

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 he understood this and stated that he wished to proceed.

Rule 12, Rules of the Sentence Review Division of the Supreme Court of Montana, provides that, “The sentence imposed by the District Court is presumed correct. The sentence shall not be reduced or increased unless it is clearly inadequate or clearly 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 clearly inadequate or clearly excessive.

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

Done in open Court this 8th day of May, 2014.

Chairperson, Hon. Brad Newman, Member Hon. Brenda Gilbert and Alternate Member Hon. John Warner.