State v. Van Ness , 256 Mont. 44 ( 1992 )

On April 12,1990, the Defendant was sentenced to twenty (20) years on each of two Counts of Sexual Intercourse Without Consent. The sentences shall be served consecutively; among the conditions of parole are to complete the Sex Offender Program at the Montana State Prison; continue mental health counseling until discharged by a therapist; have no contact with minor females except in a setting with other adults present; and assume financial responsibility for any treatment and therapy required by the victim. The defendant shall receive credit for 243 days time served and is designated as a Dangerous Offender.

On August 20, 1992, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge McCarter. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence imposed by Judge McCarter shall be affirmed. In addition, in lieu of the statement the defendant has made to the Sentence Review Board, he is ordered to sign over his interest in the family residence, by way of quick claim deed, to the children’s mother, Marjorie Van Ness. If he chooses not to do that, a further hearing will be held before this Division and Mr. Van Ness will be appointed an attorney to represent him.

DATED this 20th day of August, 1992.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

The reason for the additional condition is because Mr. Van Ness stated to the Sentence Review Board that he has no objection to the family home being sold as long as his half of the assets are used in the best interest of the children.

Hon. Ed McLean, Chairman, Hon. Thomas M. McKittrick, and Hon. G. Todd Baugh, Judges.

The Sentence Review Board wishes thank Mr. Van Ness for appearing pro se.