On May 26, 1995, the Court found the defendant in violation of the conditions of her suspended sentence and it is the judgment of the Court that defendant’s prior suspended sentence is hereby revoked and that the defendant be and she is hereby sentenced to a term of five (5) years in the Women’s Correctional Facility at Billings, Montana. Said sentence shall run consecutively to the sentence imposed in Flathead County Cause No. DC 95-014(B). It is the recommendation of the Court that as a condition of parole the defendant shall be required to complete all phases of a chemical dependency program and undergo a mental health evaluation at the defendant’s own expense and participate in counseling as recommended. Further, it is the recommendation of the Court that as a condition of parole, the defendant shall be required to pay restitution and all Court ordered fees and costs as ordered in the Judgment done in open Court on the 19th day of October, 1992. The defendant shall receive credit from February 5, 1993, through March 6, 1993; and from May 24, 1995, through date of sentencing, May 26, 1995, for thirty-three (33) days jail time which she has previously served.

On October 20, 1995, 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 Lynn Dankowski, legal intern of the Montana Defender Project. The state was represented by Ed Corrigan, Deputy County Attorney from Kalispell.

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 to increase it. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

Upon a consideration of the record presented it is the decision of the Sentence Review Division, by majority vote, that the sentence must be, and is hereby VACATED.

This matter is REMANDED to the Hon. Douglas C. Harkin, District Judge, to re-sentence Ms. Johnson.

The majority of the Sentence Review Board finds the explanation given by Ms. Johnson for her failure to return to the Flathead County detention facility, and thereby violate the terms of her suspended sentence, to be incredible. The Sentence Review Board also finds that the further reasons given for not following the terms of her suspended sentence are not alone a sufficient reason to modify her present sentence.

The majority of the board does, however, find that prior to Ms. Johnson not reporting to jail as ordered, inappropriate behavior did occur between this female defendant, who was a prisoner, and a male law enforcement officer in a position of authority at the jail. There is no record that the sentencing judge was aware of such incident at the time Ms. Johnson’s suspended sentence was revoked.

The majority of the Sentence Review Board also finds there is a possibility, however remote, that Ms. Johnson did not tell Judge Harkin of the alleged assault on her by a deputy sheriff because she was ordered not to do so by investigating officers. Therefore, to avoid the appearance of impropriety, she must have the opportunity to make such argument to the sentencing judge.

While the majority of the Sentence Review Board does not find the revocation of Ms. Johnson’s suspended sentence to be unwarranted, even considering her belated explanation for violation of the terms of suspension, the board does not have all of the necessary evidence to properly sentence her. Therefore the board has no choice other than to vacate the sentence and remand to the District Court for Missoula County for re-sentencing after a hearing in which all relevant information is presented.

DISSENT:

dissents as follows:

I find the defendant, Ms. Johnson, to be an incredible, lying, manipulative individual that is right where she belongs. The action taken by the majority of the board might allow her to escape her just punishment, and may encourage her in further manipulation of the system. I agree with the defendant’s cell mate who describes Ms. Johnson as a pathological liar. I would affirm the sentence.

I also remind the district court that the majority of the Sentence Review Board does not tell the District Court Judge not to send the defendant to jail. What the majority tells him to do is consider these additional facts and indicate whether or not they should make a difference in the sentence.

Done in open Court this 20th day of October, 1995.

The Sentence Review Board wishes to thank Lynn Dankowski, legal intern of the Montana Defender Project, for representing Ms. Johnson in this matter and also to Ed Corrigan, Deputy County Attorney from Kalispell for representing the State.