State v. Combo , 386 Mont. 36 ( 2016 )

DECISION

On July 23, 2015, the Defendant was sentenced to seven (7) years to the Montana State Prison, with no time suspended, for the offense of Assault with a Weapon, a felony, in violation of §45-5-213, MCA. The Court recommended that at some point in the Defendant’s custodial sentence, he be placed at the NEXUS drug addiction treatment program. Defendant was given credit for twelve (12) days of jail time already served. Defendant was ordered to pay surcharges as required by statute in the amount of $80.00 total. Partner or Family Member Assault, a felony, was dismissed.

On May 5, 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”).

Done in open Court this 5th day of May, 2016. DATED this 10th day of June, 2016.

The Defendant was present and was represented by private counsel, Joseph Connors, Jr. The State was represented by Butte-Silver Bow County Deputy Attorney Mike Clague.

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. John Warner, Member.