
    STATE OF MONTANA, Plaintiff, vs. JAMES THEODORE WARREN, Defendant.
    NO. C-580
    DECISION
    DATED this 25th day of September, 1992.
   On November 1, 1990, the Defendant was sentenced to Count I, twenty (20) years for Burglary; Count II, twenty (20) years for Burglary; Count III, twenty (20) years for Burglary; all to be served consecutively to each other and consecutive to the offense for which the defendant is currently on parole. Defendant is given 301 days credit for time served in custody on these charges. Plus the defendant shall receive an additional sixty (60) years for being adjudicated as a Persistent Felony Offender. This sentence is to run concurrently with the sixty (60) years imposed above. Defendant is designated as a Dangerous Offender and ineligible for parole consideration.

On September 25,1992, 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 represented himself. The state was represented by Robert L. Deschamps, County Attorney from Missoula.

Before hearing the application, the Defendant was advised that the Sentence Review Division is here to consider the sentence which was imposed by Judge Ed McLean. This board has the authority to increase the sentence, to leave it as is, or to reduce it. In the event that the Board would decide the alternative to increase the sentence, the proceedings will be stayed, an attorney would be appointed, and the proceedings would be rescheduled for a later date. In the event that the Board determines the sentence will remain as is or reduce it, the Board will go ahead with that decision. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, there is a split decision by the Sentence Review Board. Judges Baugh and Honzel vote to amend the sentence given by Judge McLean.

IT IS HEREBY ORDERED that the sentence shall remain the same as originally imposed by Judge McLean with one amendment, Count I, twenty (20) years for Burglary; Count II, twenty (20) years for Burglary; Count III, twenty (20) years for Burglary; all to be served consecutively to each other and consecutive to the offense for which the defendant is currently on parole. Defendant is given 301 days credit for time served in custody on these charges. Plus the defendant shall receive an additional sixty (60) years for being adjudicated as a Persistent Felony Offender. This sentence is to run concurrently with the sixty (60) years imposed above. The defendant shall be designated a dangerous offender, however, the provision which makes James Warren ineligible for parole shall be dropped.

The reason for the decision is the defendant’s criminal history justifies the length of the sentence and the dangerous designation, however, his crimes were nonviolent and were property crimes as well as a violation of his probation.

Hon. Thomas Honzel, Chairman and Hon. G. Todd Baugh, Judges.

THE HONORABLE THOMAS McKITTRICK DISSENTS:

Judge McKittriek voted to affirm the sentence as imposed by Judge McLean in its entirety. Rule 17 of the Sentence Review Division of the Montana Supreme Court 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.”

The record clearly shows that James Warren is a career criminal. Judge McKittrick finds that reasons advanced for modification are insufficient to be deemed inadequate or excessive. Furthermore, there was no showing that the sentence was contrary to the recommendation of the pre-sentence report.

The Sentence Review Board wishes to thank James Warren for appearing pro se and also thanks Robert Deschamps for appearing on behalf of the State of Montana.  