
    STATE OF MONTANA, Plaintiff, vs. RUSSELL THEODORE HEIT, Defendant.
    NO. DC-88-333
    DATED this 7th day of May, 1993.
    DECISION
   On August 16, 1989, the Defendant was sentenced to Count II, 100 years for Deliberate Homicide plus ten (10) years for the use of a dangerous weapon, to be served consecutive to each other; Count III, forty (40) years for Robbery, the forty year term shall run consecutively to the other sentences herein imposed. Credit is given for 321 days time served; Dangerous Designation.

On May 7,1993, 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 Susan Aaberg-Firth, Legal Intern from the Montana Defender Project. The state was not represented, however, a letter was faxed to the Prison from Yellowstone County on the State’s behalf.

An objection was made by Dave Stenerson, Teacher’s Assistant, from the Montana Defender Project, to disallow consideration of the County Attorney’s letter because it was received only moments prior to the hearing and they are not prepared to counteract or investigate the information received. The objection was sustained by the Sentence Review Board due to untimeliness of the letter.

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 if such is possible. 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..

After careful consideration, there was a split decision of the Sentence Review Division. Judge McKittrick and Judge Baugh vote to affirm the sentence as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, and Hon. G. Todd Baugh, Judge.

DISSENT: THE HONORABLE JOHN WARNER DISSENTS: Judge Warner would have seriously considered the death penalty for this Defendant. Therefore he would have counsel appointed for the Defendant and have the Sentence Review Hearing rescheduled for fall of 1993, to review why the death penalty should not have been imposed in this matter.

The Sentence Review Board wishes to thank Susan Aaberg-Firth, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.  