State v. Fleming ( 2014 )

On August 14, 2013, the Defendant was sentenced for Criminal Endangerment, a felony, in violation of Section 45-5-207, MCA the sentence is deferred for a period of Three (3) years; credit for 112 days’ time served; deferred sentence upon terms and conditions outlined in the Judgment given on August 14,2013.

DATED this 31st day of March, 2014.

On September 19, 2013, the deferred sentence entered on August 14, 2013, was revoked; the Defendant was sentenced for Criminal Endangerment, a felony, in violation of Section 45-5-207, MCA, committed to the Department of Corrections for a term of Five (5) years with none of that time suspended; credit for time served at initial sentencing for 112 days and credit for time served on probation holds and this revocation of 25 days; no credit for any other elapsed probationary time; and other terms and conditions given in the Judgment on September 19, 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 Brooke Perkins, an intern with the Montana Office ofPublic Defender, under the supervision of Ed Sheehy, Jr., Attorney at Law. Ms. Perkins and Mr. Sheehy appeared by Vision Net from their office in Missoula, Montana, due to severe weather and traveling conditions. The State was not represented.

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.

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.