State v. Yeaton

On September 12, 2011, the Defendant was sentenced for Count I: Driving Under the Influence of Alcohol or Drugs-Fourth or Subsequent Offense, a felony, in violation of Sections 61-8-401 and 61-8-731, MCA, to Montana Department of Corrections for placement in appropriate correctional facility or program for Thirteen (13) months without parole; if successfully completes residential alcohol treatment program the remainder of the Thirteen (13) months shall be served on probation. The initial Thirteen (13) months shall be followed by commitment for a term of Two (2) years, all of which is suspended, to the Department of Corrections, to run consecutively to the term of Thirteen (13) months; receive credit for Five (5) days time served; $1,000 fine; and Count II: Limitations on Backing, a misdemeanor, in violation of Section 61-8-358, MCA, Dismissed; and other terms and conditions given in the Judgment and Sentence on September 12, 2011.

DATED this 31st day of March, 2014.

On September 23, 2013, the suspended sentence given September 12, 2011, was revoked. The Defendant was sentenced for Count I: Driving Under the Influence of Alcohol or Drugs-Fourth or Subsequent Offense, a felony, in violation of Sections 61-8-401 and 61-8-731, MCA, to Montana State Prison for a period of Two (2) years; credit for Seven (7) days time served; Court expressly denies credit for any elapsed time under probationary sentence; and other terms and conditions given in the Judgment and Sentence on September 23, 2013.

On February 27, 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 of Public Defender, under the supervision of Ed Sheehy, Jr., Attorney at Law. 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 27th day of February, 2014.

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