
    STATE OF MONTANA, Plaintiff, vs. JAMES SHERRILL, Defendant.
    No. DC-03-25
    Decision
   On June 29, 2004, the defendant was sentenced to the following: five (5) years in the Montana State Prison, for the offense of Fraudulently Obtaining Dangerous Drugs, a felony. In addition, the Court finds the defendant to be a persistent felony offender and sentences the defendant to a consecutive five (5) years in the Montana State Prison.

On March 8, 2005, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present and was represented by Keithi Worthington. The state was represented by Karen Townsend, who appeared by telephone conference.

Before hearing the application, the defendant was advised that the Sentence Review 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 Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that “the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (§46-18-904(3), MCA).

The majority of the Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

Therefore, it is the majority decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 8 th day of March, 2005.

DATED this 31st day of March, 2005.

Alt. Chairperson, Hon. Gary Day and Alt. Member, Hon. Randal Spaulding

The Honorable John Whelan

dissents.

It is Judge Whelan’s opinion that the sentence is excessive given the defendant was close to completing his suspended time in Missoula County when he violated the conditions of his sentence. Judge Whelan added that the sentences between Missoula County and Ravalli County should be served concurrently instead of consecutively.

Member, Hon. John Whelan  