State v. Guckeen , 354 Mont. 7 ( 2009 )

On November 25, 2008, the defendant was sentenced to five (5) years in the Montana State Prison for violation of the conditions of a suspended sentence for the offense of Assault with a Weapon, a felony. The Court recommended that the Defendant phased into Connections Corrections prior to release.

On February 12,2009, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by Eric Olson. The state was not represented.

Before hearing the application, the defendant was advised that the Sentence Review 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 Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

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.” (§46-18-904(3), MCA).

The Division finds that the reasons advanced for modification of the term of the sentence are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

However, medical issues as far as the defendant’s head injury and the resulting safety issues which were in existence at the time of sentencing but not brought to the attention of the sentencing judge would require that the sentence be modified so that the defendant be committed to the Department of Corrections for a period of five (5) years to allow the Department of Corrections to consider medical and safety issues in any type of placement.

Therefore, it is the unanimous decision of the Sentence Review Division and that the term of the sentence shall be affirmed. The Sentence Review Division further recommends alternative placement of the Defendant by the Department of Corrections.

Done in open Court this 12th day of February, 2009.

DATED this 27th day of February, 2009.

Chairperson, Hon. Stewart Stadler, Member, Hon. Blair Jones and Member, Richard Simonton.