State v. Cowgill , 377 Mont. 4 ( 2014 )

On January 27,2005, the Defendant was sentenced for Count I: Driving Under the Influence of Alcohol, a felony, in violation of Section 61-8-401(1)(a), MCA, committed to Department of Corrections for Thirteen (13) months for placement in appropriate correctional facility or residential alcohol treatment program; a consecutive suspended sentence of Five (5) years at Montana State Prison, should Defendant successfully complete residential alcohol treatment, such as WATCh Program, the remaining time to be served with DOC shall also be suspended; this sentence shall run consecutive to sentences imposed in Flathead County Cause Nos. DC-96-017(B) and DC-96-140(B); credit for 147 days served in Flathead County Detention Center; and other terms and conditions given in the Order of Revocation, Judgment and Sentence on January 27, 2005.

On May 6, 2010, the suspended sentence was revoked. On June 17, 2010, the Defendant sentenced, then the sentence was amended on February 10,2011, for Count I: Driving Under the Influence of Alcohol, a felony, in violation of Section 61-8-401(1)(a), MCA, committed to Department of Corrections for period of Five (5) years with that period to be suspended and to run consecutive to the sentenced imposed in Flathead County Cause Nos. DC-96-017(B) and DC-96-140(B); and this sentence run concurrent to the sentence imposed in Lake County; and other terms and conditions given in the Amended Order of Revocation, Judgment and Sentence dated February 10,2011.

On July 18,2013, the suspended sentence was revoked. On September 12,2013, the Defendant was sentenced tor Count I: Driving Under the influence of Alcohol, a felony, in violation of Section 61-8-401(1)(a), MCA, committed to Department of Corrections for a concurrent period of Five (5) years, concurrent to sentence imposed in Cause No. DC-13-145(0; and other terms and conditions given in the Order of Revocation, Judgment and Sentence on September 12,2013.

On February 28, 2014, 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 Jorden Ramler, an intern with the Montana Office of Public Defender, under the supervision of Ed Sheehy, Jr., Attorney at Law. Ms. Ramler and Mr. Sheehy appeared by Vision Net from their office in Missoula, Montana, due to severe weather and traveling conditions. The State was represented by Kenneth Park, Deputy Flathead County Attorney.

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.

DATED this 31st day of March, 2014.

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.

Therefore, it is the unanimous decision of the Division that the sentence shall be AFFIRMED.

Done in open Court this 28th day of February, 2014.

Chairperson, Hon. Brad Newman, Member Hon. Kathy Seeley and Member Hon. Brenda Gilbert.