State v. Morehead , 377 Mont. 129 ( 2014 )

On November 6,2013, the Defendant was sentenced for the following offenses: Count I: Driving Under the Influence of Alcohol-4th or Subsequent Offense, a Felony, in violation of §61-8-401(1)(a), MCA, to a thirteen (13) month commitment to the Department of Corrections for placement in an appropriate correctional facility. If the Defendant successfully completes a residential alcohol treatment program operated or approved by the DOC, the remainder of the 13 month sentence shall be served on probation. This sentence shall be followed by a five (5) year commitment to the Montana State Prison, which is suspended. Count I shall run consecutive to Count HI.; Count H: Habitual Offender Operating Motor Vehicle, a misdemeanor, in violation of §61-11-213, MCA, to a commitment to the Missoula County Detention Center for a period of 360 days; and Count HI: Obstructing a Peace Officer or Other Public Servant, a Misdemeanor, in violation of §45-7-302(1), MCA, to a commitment to the Missoula County Detention Center for a period of six (6) months, to run consecutive to Count H.

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 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).

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.