State v. Burd , 373 Mont. 2 ( 2013 )

On December 12, 2012, the defendant was sentenced for violation of the conditions of a suspended sentence as follows: Count I: Seven (7) years in the Montana State Prison, for the offense of Aggravated Assault, a Felony; Count H: Seven (7) years in the Montana State Prison, for the offense of Assault on Peace Officer/Judicial Officer - Bodily Injury, a Felony; and Count III: Seven (7) years in the Montana State Prison, for the offense of Assault on Peace Officer/Judicial Officer - Bodily Injury, a Felony. Counts I, II and III shall run concurrently with each other.

On February 22, 2013, 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 was represented by Samantha Stephens, third year law student under the supervision of Ed Sheehy, Jr. The state was not represented.

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.

Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that “the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (§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 inadequate or excessive.

Therefore, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 22 nd day of February, 2013.

Chairperson, Hon. Loren Tucker, Member Hon. Brad Newman and Member Hon. Kathy Seeley.