State v. Heavygun , 386 Mont. 107 ( 2016 )

DECISION

On June 10, 2010, the Court sentenced the Defendant as follows:

Count I: Life in the Montana State Prison, for the offense of Deliberate Homicide, a Felony, in violation of §45-5-102(1)(a)(2007), MCA;

Count II: A commitment to the Department of Corrections for a term of thirteen (13) months, followed by five (5) years to the Montana State Prison, with all time suspended, for the offense of Driving Under the Influence of Alcohol, 4th or Subsequent Offense, a Felony, in violation of §61-8-401(l)(a)(2007), MCA. Defendant was fined one thousand dollars ($1,000.00), which was satisfied by time served;

Count III: A commitment to the Cascade County Detention Center for a term of six (6) months, for the offense of Violation of Order of Protection, a Misdemeanor, in violation of §45-5-626 (2007), MCA;

Count IV: A commitment to the Montana State Prison for a term of ten (10) years for the offense of Criminal Endangerment, a Felony, in violation of §45-5-207 (2007), MCA;

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

Count VI: A commitment to the Cascade County Detention Center for a term of six (6) months for the offense of Driving While Privilege to do so is Revoked or Suspended, a Misdemeanor, in violation of §61-7-103(1), MCA(2007);

Count VIII: A commitment to the Montana State Prison for a term of ten (10) years for the offense of Tampering With Physical Evidence, a Felony, in violation of §45-7-207(l)(a)(2007), MCA.

These sentences were ordered to run concurrent with each other and with any other sentences the Defendant is serving. The Court granted credit of four hundred and ninety-two (492) days time served. The Court did not impose any other fees or surcharges. The Court ordered payment of restitution in the amount of twenty-three thousand six hundred sixty-one dollars and fifty-five cents ($23,661.55) plus ten (10%) percent administrative fee payable through the Department of Corrections to Mondial Assistance ($18,661.55) and the victim’s Estate ($5,000.00).

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 appeared by Vision Net from the Crossroads Correctional Center in Shelby, MT and was represented by Brent Getty of the Office of the State 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 he understood this and stated that he wished to proceed. The Defendant was given two separate opportunities to speak privately with his attorney at the commencement of the hearing and during the hearing.

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