DECISION

On December 31, 2015, the Defendant was sentenced to a commitment to the Montana State Prison for a term of twenty (20) years, with ten (10) years suspended, for the offense of Aggravated Assault, a Felony, in violation of §45-5-202, MCA. The Defendant was given credit for time served in the amount of two hundred seventy (270) days. The Court imposed a restriction on eligibility for parole in that the Defendant could not apply for parole until he has served five (5) years of sentence. The reason for restriction was that this offense is the Defendant’s third crime of violence, fourth felony, and that the Court felt it was being very lenient.

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”).

The Defendant appeared by video conferencing from the Great Falls Regional Prison and was represented by Jennifer Streano of the Office of the State Public Defender. The Missoula County Deputy Attorney, Jordan Kilby, submitted a written statement with attachments, but was not present.

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.

At the hearing, Defense Counsel raised an objection to the County Attorney’s written submission since it included police reports which were presumed not before the judge at the time of sentencing. Defendant was sentenced per a plea agreement. The Division sustained the objection and the statement and police reports were not considered.