State v. Orville W. Schutter

June 18 2008
DA 07-0252
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 219N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ORVILLE LeWAYNE SCHUTTER,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC 05-0308
Honorable Douglas G. Harkin, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
James B. Wheelis, Chief Appellate Defender; David Avery,
Assistant Appellant Defender, Helena, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General; Micheal S. Wellenstein,
Assistant Attorney General, Helena, Montana
Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana
Submitted on Briefs: May 21, 2008
Decided: June 18, 2008
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 Orville LeWayne Schutter (Schutter) appeals from the order of the Fourth Judicial
District Court, Missoula County, revoking his 3-year deferred sentence and imposing a
sentence of 10 years in prison, with 5 suspended. We affirm.
¶3 Conceding the revocation itself cannot be challenged, the only issue Schutter raises on
appeal is whether the District Court erred in sentencing him. Schutter argues the District
Court erred in imposing the sentence recommended by the probation and parole officer
because the recommendation was premised upon Schutter’s guilt regarding all of the alleged
violations—including those not proven—and the court’s failure to consider mitigating
evidence. Because the probation and parole officer did not revise her sentencing
recommendation when several of the alleged probation violations were unsubstantiated,
Schutter contends the District Court abandoned conscientious judgment and acted arbitrarily.
Schutter does not, however, allege that his sentence is illegal.
¶4 The District Court found Schutter violated four conditions of his deferred sentence,
but did not violate three other conditions. The court considered imposing a 20-year sentence
with 5 suspended, but ultimately imposed the recommended 10-year sentence, with 5 years
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suspended.
¶5 We review a sentence for legality—that is, whether it is within the parameters of the
sentencing statute. State v. Rudolph, 2005 MT 41, ¶ 9, 326 Mont. 132, ¶ 9, 107 P.3d 496, ¶
9. The sentence imposed upon Schutter is within the statutory range. Moreover, we
consistently refuse to review the length of sentences for equity or disparity; these matters are
within the province of the Sentence Review Division. See e.g. State v. Senn, 2003 MT 52, ¶
34, 314 Mont. 348, ¶ 34, 66 P.3d 288, ¶ 34 (citing State v. Baisch, 1998 MT 12, ¶ 15, 287
Mont. 191, ¶ 15, 953 P.2d 1070, ¶ 15).
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. It is manifest on the face of the briefs and record that this appeal is without merit
because the issues are clearly controlled by settled Montana law. The District Court did not
err in sentencing Schutter.
¶7 Affirmed.
/S/ KARLA M. GRAY
We concur:
/S/ PATRICIA COTTER
/S/ JOHN WARNER
/S/ JIM RICE
/S/ BRIAN MORRIS
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