State v. McCann , 377 Mont. 127 ( 2014 )

On February 3,2014, the defendant was sentenced for the offense of Count I: Driving or in Actual Physical Control of a Vehicle While Under the Influence of Alcohol (DUI), Fourth Offense, a felony, in violation of Section 61-8-401(1)(a), MCA, to the Department of Corrections for placement in an appropriate correctional facility or program for a term of thirteen (13) months, with a recommendation for the WATCH residential treatment program. After successful completion of the WATCH program, the remainder of the thirteen (13) month sentence must be served on probation. Defendant has credit for twenty-three (23) days of tíme already served. It is further ordered that Defendant be sentenced to the Department of Corrections for a term of five (5) years, all which shall be suspended, consecutive to the term imposed above.

On November 6,2014, 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 appeared via videoconference and was represented by Madison Mattioli, third year law student under the supervision ofEd Sheehy, Jr., Montana Office of Public Defender. The State was not represented.

DATED this 24th day of November, 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 6th day of November, 2014.

Chairperson, Hon. Brad Newman, Member Hon. Kathy Seeley and Member Hon. Brenda Gilbert.