
    STATE OF MONTANA, Plaintiff, vs. Mark Dinkel, Defendant.
    NO. DC 94-405
    DECISION
    DATED this 14th day of June, 1996.
   On November 29, 1995, the said Mark Dinkel was duly convicted in this Court of the crime of Negligent Homicide (Felony); it is therefore ordered, adjudged and decreed that the said Mark Dinkel be punished by imprisonment in the Montana State Prison at Deer Lodge, Montana, for the term of ten (10) years. Defendant shall receive credit for time spent in the Yellowstone County Detention Facility at Billings, Montana, for 6 days. It is further ordered that because the defendant, while engaged in the commission of the offense of Negligent Homicide (Felony) knowingly used a firearm, to wit: a .45 caliber Loma semi-automatic handgun; he is hereby sentenced to the term of ten (10) years in the Montana State Prison under the authority of 46-18-221, Montana Code Annotated. This term of imprisonment shall be served consecutively with the term imposed for the commission of the crime of Negligent Homicide (Felony) as charged in the Information. It is further ordered that should the defendant be paroled, conditions shall apply as stated in the November 29, 1995 judgment.

On May 23,1996, 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 proceeded Pro Se. The state was represented by Dennis Paxinos, County Attorney from Billings.

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 to 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 provides: "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." (Section 45-18-904(3), MCA.) The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is inadequate or excessive.

After careful consideration, there is a split decision of the Sentence Review Division.

The Honorable Ted Lympus and the Honorable Jeffrey Sherlock affirm the decision.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

The Honorable Wm. Neis Swandal

dissents. His decision would be to amend the sentence to twenty (20) years in Montana State Prison with ten (10) years suspended for the offense of Negligent Homicide (Felony).

Reasons for the amendment are that the defendant does not present a danger to society, mitigating circumstances existed, and the probation officer recommended a suspended sentence. Because of the circumstances surrounding the offense, the defendant’s prior work history, and his lack of any criminal record, I would suspend at least ten years of the sentence.

Member, Hon. William Neis Swandal

Done in open Court this 23rd day of May, 1996.

The Sentence Review Board wishes to thank Mark Dinkel for representing himself in this matter and also Dennis Paxinos, County Attorney from Billings, for representing the State.  