State v. Spurlock , 373 Mont. 64 ( 2013 )

On December 22, 2008, the Defendant was sentenced for Count I: Assault With a Weapon, a felony, in violation of Section 45-5-213, MCA, commitment to the Department of Corrections for Ten (10) years, with Ten (10) years suspended; the Court requested immediate placement in the Intensive Supervision Program until the Defendant enters and successfully completes the Montana Chemical Dependency Center program; and for Count II: Partner or Family Member Assault - 3rd or Subsequent Offense, a felony, in violation of Section 45-5-206[3ld], MCA, commitment to the Department of Corrections for Five (5) years, with Five (5) years suspended, concurrent with Count I; and the terms and conditions given in the Judgment on December 22, 2008.

On May 26, 2010, the Defendant’s prior sentence imposed by the Court on December 22, 2008, was revoked. The Defendant was reinstated on his prior sentence for both Counts I and II, with all conditions of the Judgment given December 22, 2008, re-imposed.

On February 13,2013, the Defendant’s prior sentence imposed by the Court on May 26, 2010, was revoked. The Defendant was sentenced for Count I: commitment to the Department of Corrections for Ten (10) years with Five (5) years suspended; and for Count II: commitment to the Department of Corrections for Five (5) years, concurrent with Count I; and the terms and conditions are the same as those contained in the original Judgment given on December 22, 2008.

On August 2,2013, 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., 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.

DATED this 26th day of September, 2013.

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.” (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 inadequate or excessive.

Therefore, it is the unanimous decision of the Division that the sentence shall be AFFIRMED.

Done in open Court this 2 nd day of August, 2013.

Chairperson, Hon. Loren Tucker, Member Hon. Brad Newman and Member Hon. Kathy Seeley.