
    STATE OF MONTANA Plaintiff, -vs-FRED L. MARTELL, Defendant.
    CAUSE NO. DC-03-22
    DECISION
   On May 28, 2003, the Defendant was sentenced for Count I: Burglary, a felony, in violation of Section 45-6-204(1), MCA to confinement in the Montana State Prison for a term of Twenty (20) years, with Ten (10) years suspended; and for Count II: Assault, a misdemeanor, in violation of Section 45-5-201(1)(a), MCA to confinement in the Lake County Jail for a term of Six (6) months, with all suspended except Sixty (60) days; the suspended portion of sentence on Count II shall run concurrently with sentence imposed on Count I; the prison sentence imposed on Count I shall run consecutive to the jail sentence imposed on Count n; receive credit for time served on these offenses of 117 days; and other terms and conditions given in the Judgment on May28,2003. Count HI: Violation of Order of Protection, a misdemeanor, in violation of Section 45-5-626, MCA was Dismissed.

On December 11, 2013, the suspended sentence entered on May 28, 2003, for the offense of Count I: Burglary, a felony, was revoked. The Defendant was sentenced for Count I: Burglary, a felony, in violation of Section 45-6-204(1), MCA to commitment to the Montana State Prison for a term of Ten (10) years, with none of that time suspended; receive credit for time served on this revocation of 35 days; no credit for any other elapsed probationary time due to violations of his probation; and other terms and conditions given in the Judgment on December 11, 2013.

On May 8,2014, 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 Ed Sheehy, Jr., Montana Office of Public Defender. The State was not represented.

DATED this 28th day of May, 2014.

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 Keview 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 shall be AFFIRMED.

Done in open Court this 8th day of May, 2014.

Chairperson, Hon. Brad Newman, Member Hon. Brenda Gilbert and Alternate Member Hon. John Warner.  