State v. Backer

On August 1, 2005, the defendant was sentenced to Ten (10) years in the Montana State Prison, to run concurrent with the sentences imposed in Cause Nos. DC-02-407 and DC-04-549, for violation of the conditions of a suspended sentence, for the offense of Count I: Assault, a Felony. [Count II has expired.]

On November 14, 2005, 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 Margaret Borg. 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 14th day of November, 2005.

DATED this 22nd day of November, 2005.

Chairperson, Hon. Gary L. Day, Member, Hon. John Whelan and Member, Hon. Randal Spaulding.