State v. Oldhorn , 377 Mont. 67 ( 2014 )

On February 15, 2006, the Defendant was sentenced for Count I: Burglary, a Common Scheme, a felony, in violation of Section 45-6-204(1), MCA to the Department of Corrections for a term of Twenty (20) years with Fifteen (15) years suspended; Count II: Theft, a Common Scheme, a felony, in violation of Section 45-6-301(1)(a), MCA to Ten (10) years with all of that time suspended; and Count HI: Deceptive Practices, a felony, in violation of 45-6-317(1)(d), MCA to Ten (10) years with all of that time suspended; sentence imposed on Count IH shall run concurrently with the sentence imposed on Count H; sentences imposed on Counts II and IH shall run consecutive to the sentence imposed on Count I; receive credit for time served of 165 days; and other terms and conditions given in tire Judgment and Commitment on February 15, 2006.

On March 27,2013, the suspended sentences entered on February 15,2006, were revoked. The Defendant was sentenced for Count I: Burglary, a Common Scheme, a felony, in violation of Section 45-6-204(1), MCA to the Department of Corrections for a term of Fifteen (15) years with none of that time suspended; Count H: Theft, a Common Scheme, a felony, in violation of Section 45-6-301(1)(a), MCA to Ten (10) years with all of that time suspended; and Count HI: Deceptive Practices, a felony, in violation of 45-6-317(1)(d), MCA to Ten (10) years with all of that time suspended; sentences on Count H and Count IH shall run concurrent to each other and shall run consecutive to the sentence on Count I; receive credit for time served of 388 days; not receive credit for any other elapsed probationary time; and other terms and conditions given in the Judgment on March 27,2013.

On May 8,2014, the Defendant’s Application for review of that sentence was heard by the Sentence Review Division of ihe Montana Supreme Court (hereafter “the Division”).

The Defendant was present and was represented by Ed Sheehy, Jr., Montana Office of Public Defender. 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 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).

It is the unanimous decision of the Division that the sentence imposed upon revocation is clearly excessive. The Division’s decision is to amend the Judgment to DECREASE the sentence: for Count I: Burglary, a Common Scheme, a felony, in violation of Section 45-6-204(1), MCA to the Department of Corrections for a term of Fifteen (15) years with Ten (10) years suspended; for Count H: Theft, a Common Scheme, a felony, in violation of Section 45-6-301(1)(a), MCA, to the Department of Corrections for Ten (10) years with all of that time suspended; and for Count III: Deceptive Practices, a felony, in violation of 45-6-317(1)(d), MCA to the Department of Corrections for Ten (10) years with all of that time suspended. Counts I, II and m shall run concurrently with each other. The remaining terms and conditions given in the Judgment on March 27,2013, will remain the same.

DATED this 28th day of May, 2014.

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

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