State v. Smallen ( 2002 )

On June 20, 2001, the defendant was sentenced to the following: Count I: Twenty (20) years in the Montana State Prison for Aggravated Assault, a felony; and Count II: Twenty (20) years in the Montana State Prison, with five (5) years suspended, to run consecutively with each other, for Aggravated Assault, a felony.

On October 11, 2001, the defendant's application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court. The Sentence Review Division affirmed the defendant's sentence, with the modification that the defendant be ineligible for parole for the first twenty (20) year term of the sentence.

On September 16, 2002, the defendant filed a Petition for Rehearing Before the Sentence Review Division. That Petition was considered by the Sentence Review Division, and granted on October 7, 2002.

On November 15, 2002, a rehearing was held by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by Sandy Selvey. The state was represented by Kevin Peterson.

Before hearing the application, the defendant was advised that the Sentence Review 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 Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Based on the Sentence Review Division's review and consideration of information that was not presented or addressed at the October 11, 2001, hearing, it is the unanimous decision of the Sentence Review Division that the sentence as originally imposed by Judge Barz on June 20, 2001, shall be reinstated. The parole restriction as imposed by the Sentence Review Division on October 11,2001, shall be stricken.

Done in open Court this 15th day of November, 2002.

DATED this 11th day of December, 2002.

Chairman, Hon. David Cybulski; Member, Hon. Katherine R. Curtis and Member, Hon. Marc Buyske.