State v. Kelly

DECISION

On January 21, 2016, the Defendant’s deferred sentence was revoked for violation of conditions and he was sentenced to a commitment to the Department of Corrections for a term of five (5) years, with two (2) years suspended, for the offense of Count I: Criminal Possession of Dangerous Drugs, a Felony, in violation of §45-9-102, MCA. The Defendant received credit for time served on this revocation of 58 days for a total credit for time served of 144 days. The Court recommended that the Defendant be placed in the NEXUS Program. If the Department of Corrections deemed it appropriate for the Defendant to be released early, the Court would consider that recommendation. The Court further ordered that the relevant conditions previously imposed be re-imposed as conditions of the suspended portion of the Defendant’s sentence.

On August 4, 2016, 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 appeared by Vision Net from NEXUS and was represented by Peter Ohman of the Office of the State Public Defender. The State was not represented.

Done in open Court this 4th day of August, 2016. DATED this 24th day of August, 2016.

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 is AFFIRMED.

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