
    STATE OF MONTANA, Plaintiff, -vs-DAWN ASHIA BLACKHAWK, Defendant.
    CAUSE NO. DC-11-463
    DECISION
   On February 7, 2012, the Defendant was sentenced for Count I: Assault With A Weapon, a felony, in violation of Section 45-5-213(1)(a), MCA commitment to the Department of Corrections under Section 46-18-201, MCA for Five (5) years with all but time served suspended. Defendant will receive credit for time spent in pre-trial incarceration from July 14,2011 through November 15,2011 for 125 days towards the suspended sentence. In the event the Defendant’s suspended sentence is revoked, the maximum term of incarceration that may be imposed is 4 years 125 days. Defendant will pay a fine of $500. For Count n: Partner or Family Member Assault, a misdemeanor, in violation of Section 45-5-206,; MCA imprisonment in the Yellowstone County Detention Facility in Billings, Montand, for One (1) year with all but time served suspended and shall run concurrently to Count I of this criminal cause. Defendant will pay a fine of $500 and shall run concurrently to Count I of this criminal cause; and other terms and conditions given in the Judgment on February 7,2012.

On July 8,2014, the Defendant’s sentence imposed on February 7,2012, was revoked. The Defendant was sentenced for Count I: Assault With A Weapon, a felony, in violation of Section 45-5-213(1)(a), MCA commitment to the Department of Corrections under Section 46-18-203, MCA for a term of Four (4) years Two Hundred Forty Two (242) days with Two (2) years suspended; recommended that Defendant be screened for the ADT program and Pre-release. In all other respects, the previous Orders, conditions and reasons of this Court entered on February 7,2012, remain unchanged and are imposed; as provided in the Order of Revocation and Imposition of Sentence on July 8,2014.

DATED this 17th day of October, 2014.

On September 26,2014, 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.

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 she understood this and stated that she 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 shall be AFFIRMED. The Defendant presented to the Division that there is a discrepancy between Judgments entered by Judge Fagg in the Yellowstone County District Court in this case. Specifically, in the original Judgment it was stated that upon a revocation Defendant would face a maximum sentence of 4 years and 125 days. In the Order of Revocation and Imposition of Sentence (the Judgment reviewed by the Division), a sentence of 4 years and 242 days was imposed. The Defendant claims this is a factual error. The Division informs the Defendant that as a remedy, she can ask the District Court to review this at any time to determine if a factual error has been made pursuant to Section 46-18-116, MCA.

Done in open Court this 26th day of September, 2014.

Chairperson, Hon. Brad Newman, Member Hon. Kathy Seeley and Member Hon. Brenda Gilbert.  