
    STATE OF MONTANA, Plaintiff, -vs-EDWARD JOSEPH USHER, Defendant.
    CAUSE NO. DC-04-10
    DECISION
   On January 24,2005, the Defendant was sentenced for Amended Count I: Criminal Endangerment, a felony, in violation of Section45-5-207, MCA, to Montana State Prison for Ten (10) years, said sentence is suspended upon the terms and conditions contained in the Judgment and Sentence; and for Count H: Driving or in Actual Physical Control of a Vehicle Under the Influence of Alcohol, a misdemeanor, in violation of Section 61-8-401(1)(a), MCA, to Six (6) months in the Pondera County Jail, the sentence shall run consecutive to the sentence imposed in Count I; fine of $1,000, said sentence and fine shall be suspended upon the terms and conditions contained in the Judgment and Sentence on January 24, 2005. Count IQ: Driving Without a Driver’s License, in violation of Section 61-5-102(1), MCA; Count IV: Operating A Motor Vehicle Without Liability Insurance, in violation of Section 61-6-301(1)(a), MCA; and Count V: No Seatbelt, in violation of Section 61-13-103, MCA, were Dismissed.

On April 7,2008, the suspended portion of the original sentence was revoked; the Defendant was sentenced for Amended Count I: Criminal Endangerment, a felony, in violation of Section 45-5-207, MCA, to Montana State Prison for Ten (10) years, with Five (5)years suspended upon the terms and conditions contained in the Dispositional Order; and for Count Q: Driving or in Actual Physical Control of a Vehicle Under the Influence of Alcohol, a misdemeanor, in violation of Section 61-8-401(1)(a), MCA, to Six (6) months in the Pondera County Jail, to run concurrently to the sentenced imposed in Count I; pay $1,000 fine, said sentence and fine shall be suspended upon the terms and conditions contained in the Dispositional Order on April 7,2008.

On October 7,2013, the suspended portion of the previous sentence was revoked; the Defendant was sentenced for Amended Count I: Criminal Endangerment, a felony, in violation of Section45-5-207, MCA, to Montana State Prison for Five (5) years, credit for 54 days of incarceration prior to disposition; and other terms and conditions given in the Dispositional Order on October 7,2013.

DATED this 31st day of March, 2014.

On February 28, 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 Vision Net from the Great Falls Regional Prison in Great Falls, Montana, and was represented by Jorden Ramler, an intern with the Montana Office of Public Defender, under the supervision of Ed Sheehy, Jr., Attorney at Law. Ms. Ramler and Mr. Sheehy appeared by Vision Net from their office in Missoula, Montana, due to severe weather and traveling conditions. 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.

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

Done in open Court this 28th day of February, 2014.

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