State v. Miessner

On March 5,1997, it was the sentence and judgment of the court as follows: 1. That the defendant is guilty of violating the terms and conditions of the sentence heretofore imposed upon him on the 22nd day of May, 1996 and the suspended sentence is hereby revoked. 2. The defendant is committed to the Department of Corrections for appropriate placement into a community-based program, facility, or state correctional institution for a period often (10) years on each of the four felony counts, and to six (6) months on the misdemeanor count, all to run concurrently, and with three (3) years of each felony count suspended subject to all existing conditions set forth in the original judgment imposed on May 22, 1996. The defendant shall receive an additional credit of 37 days for time served in jail prior to this sentencing. The Court recommends that the defendant be considered for placement in a pre-release center, and that the Department make available all appropriate alcohol treatment and counseling while in their care.

On August 21, 1997, 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 proceeded Pro Se. 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 to 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 provides: "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." (Section 45-18-904(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.

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

The defendant’s complaints about lawyers and the way the Department of Corrections has classified him and his eligibility for alcohol treatment are not issues which can be addressed before the Sentence Review Board.

Done in open Court this 21st day of August, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Richard Phillips and Alternate Member, Hon. Robert Boyd

The Sentence Review Board wishes to thank Kerry R. Miessner for representing himself in this matter.