
    STATE OF MONTANA Plaintiff, -vsANDRIST TROY HEATH, Defendant.
    CAUSE NO. DC-10-287
    DECISION
   On November 30, 2010, the Defendant was sentenced for Count I: Criminal Endangerment, a felony, in violation of Section 45-5-207, MCA sentence is deferred for Three (3) years; for Count II: Driving a Motor Vehicle While Under the Influence of Alcohol or Drugs-#”* Offense, a misdemeanor, in violation of Section 61-8-401(1)(a)[2nd], MCA to Missoula County Detention Center for 34 days, credit for 34 days time served; for Count IV: Operating Motor Vehicle With Expired Registration, a misdemeanor, in violation of Section 61-3-312, MCA a $50.00 fine; and for CountV: Failure to Give Notice by Quickest Means of an Accident, a misdemeanor, in violation of Section 61-7-108, MCA to Missoula County Detention Center for 20 days, with credit for 20 days time served, concurrent with Count II; and Count DI: Driving While license Suspended or Revoked, amisdemeanor, in violation of Section 61-5-212(1)(i), MCA was dismissed; and other terms and conditions given in the Judgment on November 30, 2010.

On October 15,2013, the Defendant’s sentence imposed on November 30,2010, was revoked. The Defendant was sentenced for Count I: Criminal Endangerment, a felony, in violation of Section 45-5-207, MCA, sentence is deferred for Three (3) years; Defendant shall not receive any credit for street time; the terms and conditions of the deferred portion of this Judgment are the same as those contained in the Judgment filed on December 3, 2010; Defendant shall serve 43 days in the Missoula County Detention Center, with credit for 43 days already served; and other terms and conditions given in the Judgment on October 15, 2013.

On May 13, 2014, the Defendant’s sentence imposed on October 15, 2013, was revoked. The Defendant was sentenced for Count I: Criminal Endangerment, a felony, in violation of Section 45-5-207, MCA to the Department of Corrections for Five (5) years with Two (2) years suspended; credit for 44 days served in custody; Court recommends the Defendant screened for and placed in a placement that deals with criminal thinking and substance abuse; the terms and conditions of the suspended portion of this Judgment are the same as those contained in the Judgment filed with this Court on December 3,2010; and other terms and conditions given in the Judgment on May 13, 2014.

On August 7, 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 James McCormack, an intern with the Montana Office of Public Defender under the supervision of 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.

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.

DATED this 8th day of September, 2014.

Therefore, it is the unanimous decision of the Division that the sentence shall be AFFIRMED.

Done in open Court this 7th day of August 2014.

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