
    The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. RUSSELL SCOTT AVERY, Defendant.
    CAUSE NO. DC-11-496
    DECISION
   On May 8, 2012, the Defendant was sentenced for Count III: Sexual Intercourse Without Consent, a felony, in violation of Sections 45-5-503(1) and (3)(a), MCA, to the Montana State Prison for Thirty (30) years, with Twenty (20) years suspended; and given credit for time served in the amount of 238 days; and the terms and conditions given in the Judgment on May 8, 2012.

On August 1,2013, 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., Attorney at Law. 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.

DATED this 26th day of August, 2013.

After the hearing was concluded, the Defendant and his Defense Counsel, Ed Sheehy, made the request to the Division that the Defendant be allowed to waive his right to sentence review and withdraw his Application. The Defendant was advised well in advance of today’s hearing of the potential that his imposed sentence may be increased, decreased or affirmed. Again today before the hearing began, the Defendant was so advised as noted above and on the record. It is the determination of the Division that the Defendant not be allowed the opportunity to waive his right to sentence review or withdraw his Application, after the fact of the hearing, thereby availing himself of the possibility or jeopardy of a change in his sentence. It is the unanimous decision of the Division that the Defendant’s request to waive his right to sentence review or withdraw his Application for sentence review is DENIED.

The Division next considered the Defendant’s sentence as it was presented to the Division. The Division considered the facts that a lesser sentence was imposed than what was agreed to in the guilty plea agreement signed by the Defendant on February 7, 2012, and the disparity of ages between the Defendant and the victim. The Division also considered the facts of the dismissed case, as is allowed when making sentencing determinations. The Division unanimously concludes that the sentence imposed was clearly inadequate. The Division’s decision is that the Defendant’s sentence be INCREASED and amended to order a commitment to Montana State Prison for a term of Thirty (30) years with Ten (10) years suspended. The terms and conditions shall otherwise remain as imposed in the Judgment given on May 8, 2012.

Done in open Court this 1st day of August, 2013.

Chairperson, Hon. Loren Tucker, Member Hon. Brad Newman and Member Hon. Kathy Seeley.  