State v. Gaither , 373 Mont. 4 ( 2013 )

On September 5, 2008, the defendant was sentenced as follows: Count I: One Hundred (100) years in the Montana State Prison, for the offense of Criminal Endangerment, a Felony; and Count II: One Hundred (100) years in the Montana State Prison, for the offense of Attempt (Sexual Abuse of Children), a Felony. The remaining portion of the Court’s written judgment imposed herein on September 5,2008 shall remain in full force and effect. The Defendant was designated a Persistent Felony Offender. The defendant is designated a Level III Sexual Offender. The Court directs that defendant not be granted parole until he successfully completes S.O.P. I and II, followed by aftercare while incarcerated in the Montana State Prison. Because the defendant has exhibited escalating sex offender behavior, it is imperative he complete his treatment at prison. Further, the Court recommends the defendant obtain chemical dependency and mental health treatment at the Montana State Prison. The defendant is granted 282 days credit for time served.

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 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.