State v. Olmstead , 386 Mont. 78 ( 2016 )

DECISION

On February 9, 2016, the Defendant was sentenced to the Montana State Prison for twenty-five (25) years, with no time suspended for the offense of Sexual Intercourse Without Consent, a felony, in violation of §45-5-503, MCA. The sentence was ordered to run consecutively to Dawson County Cause No. DC-13-104. The Defendant was ordered to register as a Sexual Offender and was designated as a Tier III Sex Offender. Prior to parole, Defendant was ordered to complete Phases I and II of Sex Offender Treatment. The Defendant was not given credit for time served in jail prior to sentencing since he was already in jail for Cause No. DC-13-104. Defendant was ordered to pay $70 in court fees, $50 for preparation of PSI, and $800 for cost of assigned counsel.

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 was present and was represented by Peter Ohman of the Office of the State 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.

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

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.