State v. Akane , 386 Mont. 94 ( 2016 )

DECISION

On June 17, 2016, the Defendant’s suspended sentence was revoked for violation of the conditions of probation and the Court sentenced the Defendant to a commitment to the Montana State Prison for a term of three (3) years, for the offense of Count I: Escape, a Felony, in violation of §45-7-306, MCA (2009). The Court recommended placement in a drug treatment program. The Court granted the defendant credit for time served in the amount of 35 days.

On November 17, 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 was present and was represented by Nicole Gilbert, third year law student under the supervision of Brent Getty of the Office of the State Public Defender. The State was not represented. The Defendant’s mother, Shelby Akane, was present and testified.

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).

Done in open Court this 17th day of November, 2016. DATED this 8th day of December, 2016.

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. Brad Newman, Member and Hon. Kathy Seeley, Member.