
    STATE OF MONTANA, Plaintiff, vs. LEE PHILLIP RICHARDS, Defendant.
    NO. CR 85-20
    DECISION
    Done in open Court this 18th day of August, 1994.
    SIGNED this 17th day of October, 1994.
   On April 14,1994, the Defendant’s sentence for the offense of Sexual Assault and Sexual Intercourse without Consent is hereby revoked and the defendant is sentenced for a period of ten (10) years at Montana State Prison. Plus conditions and recommendations as listed in the April 14, 1994, Judgment. Credit is given for 30 days for time served.

On August 18, 1994, 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 Matt Clifford, Legal Intern from the Montana Defender Project. The state was not represented.

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 is a split decision of the Sentence Review Division. Judge G. Todd Baugh and Judge Edward McLean vote to affirm the decision 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. The Sentence Review Board also finds that this crime is similar to the crime the Defendant was originally convicted of.

Hon. G. Todd Baugh, Chairman, and Hon. Edward McLean, Member.

DISSENT:

THE HONORABLE JOHN WARNER

DISSENTS, and would change the sentence to place the Defendant in the custody of Department of Corrections for ten (10) years, and grant the Defendant credit for time served while on probation. Judge Warner agrees that the defendant did violate the terms of his probation, however, he should receive credit for the time he was successfully on probation.

The reasons for wanting to amend the Judgment are: (a) the reasons for not granting credit for time served successfully on probation are not clear, (b) the record reflects that treatment for sexual offenses have been successfully completed by the Defendant; (c) the present sentence is not needed to protect the victims, who are members of his family.

Judge Warner agrees that the original offenses are similar to the one imposed here, but states that the Department of Corrections is better equipped to handle and make an appropriate decision as to what facility this Defendant should be placed in for the next ten (10) years. The sentence imposed defeats the rehabilitation progress and it will force the Defendant to lose the substantial gains he has made during his eight years on probation.

Hon. John Warner, Member.

The Sentence Review Board wishes to thank Matt Clifford, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.  