State v. McDonald

On September 27, 2011, a Jury found the Defendant Guilty of Count I: Assault on a Peace or Judicial Officer, a felony, in violation of Section 45-5-210, MCA On November 2, 2011, the Defendant was sentenced to Twenty (20) years to Montana Women’s Prison with Ten (10) years suspended; Defendant received Persistent Felony Offender status; this sentence to run consecutive to the sentence Defendant is currently serving; credit for 385 days; and other terms and conditions given in the Judgment on November 2, 2011.

On April 11, 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 Ed Sheehy, Jr., Montana Office of Public Defender. 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 she understood this and stated that she 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).

DATED this 29th day of April, 2014.

The majority of the Division has determined that the sentence is clearly excessive. Specifically, Judge Seeley and Judge Gilbert find that the fact that this sentence was made to run “consecutive” to the Defendant’s other sentence imposed in DC-07-304, Missoula County, resulted in an excessive and unfair punishment, and would operate to prevent necessary programming and rehabilitation of the Defendant. The Division’s decision is that the sentence imposed shall run “concurrent to the sentence imposed in DC-07-304, Missoula County.

The remaining terms and conditions of the sentence imposed are not clearly inadequate or clearly excessive and are AFFIRMED.

Done in open Court this 11th day of April, 2014.

Member Hon. Kathy Seeley and Member Hon. Brenda Gilbert.

The undersigned Judge, respectfully dissents. He believes the sentence was not shown to be clearly excessive or clearly inadequate and would affirm the sentence given by the sentencing court.

Chairperson, Hon. Brad Newman.