State v. Lubke

DECISION

On March 10, 2016, the Defendant’s sentence was revoked for violation of the conditions of his probation and he was sentenced to the Department of Corrections for two (2) years three hundred fifty five (355) days, for the offense of Partner or Family Member Assault, a Felony, in violation of §45-5-206, MCA. The Court recommended that the Defendant be screened for placement at Connections Corrections and upon acceptance, follow all requirements and provisions. If not accepted, Defendant was ordered to be placed at a Department of Corrections facility at the discretion of the Department. The Court granted credit for time served from October 4, 2015 through March 10, 2016.

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 Butte-Silver Bow County Courthouse escorted by staff from the Connections Corrections program. He 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.