State v. Ellsworth ( 2016 )

DECISION

On March 16,2016, the Defendant’s March 10,2010 suspended sentence for Count I: Tampering with Witnesses and Informants, in violation of §45-6-206, MCA, was revoked. The Defendant was sentenced to the Montana State Prison for a term of five (5) years with none suspended. The sentence was ordered to run consecutive to the sentence in DC-07-215. He did not receive credit for any other elapsed probationary time due to his probation violations. All relevant previous conditions were re-imposed.

On August 4, 2016, 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 Vision Net from Crossroads Correctional Center and was represented by Brent Getty of the Office of the State Public Defender. The State was not represented.

Done in open Court this 4th day of August, 2016. DATED this 24th day of August, 2016.

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 is AFFIRMED.

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