
    STATE OF MONTANA, Plaintiff, -vs-JENNIFER RAY BOOHER, Defendant.
    CAUSE NO. DC-04-421
    DECISION
   On April 19,2005, the Defendant was sentenced for Count IV: Criminal Mischief, a felony, in violation of Section 45-6-101, MCA, to Department of Corrections for a term of Five (5) years for suitable placement, which may include an appropriate community based program, facility or State correctional institution; Count V: Operating a Motor Vehicle While Under the Influence of Alcohol and/or Drugs 1* Offense, a misdemeanor, in violation of Section 61-8-401 and Section 61-8-714, MCA, to the Missoula County Detention Facility for Six (6) months all suspended except for time served, to run concurrently with Count IV; and Count VI: Theft, a felony, in violation of Section 45-6-301, MCA, committed to the Department of Corrections for a term of Ten (10) years all suspended to run consecutively with Count IV; and other terms and conditions given in the Judgment on April 19,2005. Count I: Criminal Endangennent, a felony, in violation of Section 45-5-207, MCA; Count II: Assault on a Peace Officer, a felony, in violation of Section 45-5-210, MCA; Count HI: Assault on a Peace Officer, a felony, in violation of Section 45-5-210, MCA; and Count VII: Criminal Possession of Dangerous Drugs, a felony, in violation of Section 45-9-102 and Section 45-9-130, MCA, were dismissed.

DATED this 17th day of October, 2014.

On February 22,2011, the sentence imposed on April 19, 2005, was revoked. The Defendant was sentenced for Count VI: Theft, a felony, in violation of Section 45-6-301, MCA, committed to the Department of Corrections for a term of Ten (10) years with Ten (10) years suspended; Defendant shall receive credit for time served in the amount of 8 days and shall be given credit for street time. Defendant’s discharge date of October 21, 2019, wifi not change; the terms and conditions of the deferred or suspended portion of this Judgment are the same as those contained in the Judgment filed on May 31,2005; and other terms and conditions given in the Judgment on February 22,2011.

On January 29, 2013, the sentence imposed on February 22, 2011, was revoked. The Defendant was sentenced for Count IV: Criminal Mischief, a felony, in violation of Section 45-6-101, MCA, to Department of Corrections for a term of Ten years with Five (5) years suspended. The Court recommends that the Defendant be screened for any and all appropriate placements which may include pre-release or the Intensive Supervision Program; the terms and conditions of the deferred or suspended portion of this Judgment are the same as those contained in the Judgment filed on March 4,2011; and other terms and conditions given in the Judgment on January 29, 2013.

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 by telephone conference from the Probation & Parole Office in Butte, Montana. The Defendant was represented by Ed Sheehy, Jr., Montana Office of PublicDefender. 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 an argument of factual error between the Judgments entered by Judge Townsend in the Missoula County District Court in this case. Specifically, a discrepancy between sentences for crimes of Count IV Criminal Mischief, a felony; and Count VI Theft, a felony. In the original Judgment the Defendant was sentenced for Count IV, Criminal Mischief, a felony. In the Judgment given January 29, 2013, (Judgment reviewed by the Division) the Defendant was sentenced for Count VI, Theft, a felony. 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.  