State v. Not Afraid , 377 Mont. 130 ( 2014 )

On July 7,2014, the Defendant was sentenced for Criminal Possession of Dangerous Drugs, a Felony, to a commitment to the Department of Corrections under §46-18-201, MCA, for three (3) years. It is further ordered that Defendant will receive credit for time spent in pre-trial incarceration from April 12,2012 to May 1,2012, October 23,2012 to June 4,2013, September 5,2013 to September 18,2013, December 20,2013 to January 3,2014 and May 24,2014 to July 7,2014.

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 by videoconference 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.