DECISION

On June 1, 2016, the Defendant was sentenced to the Department of Corrections for a period of ten (10) years with five (5) suspended, for the offense of Count I: Theft, a felony, in violation of §45-6-103, MCA. The Defendant was ordered to pay restitution in the amount of $1501 to the Sacred Heart Catholic Church and $219.99 in Dawson County Justice Court case TK 2015-1683. Defendant was also assessed court fees and surcharges including Public Defender fee.

On August 4, 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 was present and was represented by Peter Ohman 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.

Rule 12, Rules of the Sentence Review Division of the Supreme Court of Montana, provides that, “The sentence imposed by the District Court is *73presumed correct. The sentence shall not be reduced or increased unless it is clearly inadequate or clearly excessive.” (Section 46-18-904(3), MCA).

The majority of 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. Judge Gilbert and Judge Seeley concur that the sentence be affirmed. Judge Newman dissents.

Therefore, it is the majority decision of the Division that the sentence is AFFIRMED.

dissents: “I recognize that this Defendant has a miserable prior record and the District Court saw the sentence at issue and custody as a means to protect the public, at least for a short period of time. However, it is my belief that rejecting the probationary sentence recommended by all interested parties was clearly excessive. In this case the prosecution recommended probation, the Probation Officer recommended probation, and the victim recommended probation. All of the interested parties, save the District Court, realized that the only realistic way to change Mr. Hall’s conduct and future is to try something other than custody. So I do think that returning the Defendant to custody, where custody has failed numerous times, renders the sentence clearly excessive. I also note that the offense was nonviolent and that custody would not be required to protect the public.”