
    FROM: The District Court of the 4th Judicial District. County of Missoula.
    STATE OF MONTANA, Plaintiff, vs. Cody Roy Ekker, Defendant.
    NO. 11391 DECISION
   On July 8,1996, the Court found the defendant in violation of the conditions of his deferred sentences and the Court now having been fully advised as to the facts of the case, it is the judgment of the court that defendant’s prior deferred sentences are hereby revoked and that the defendant be and he is hereby committed to the Department of Corrections for a term of five (5) years each on Count I and II and to a term of ten (10) years on Count IV for suitable placement, which may include an appropriate community based program, facility, or a State correctional institution. (The sentence on Count III has expired). The sentences on Count I and II shall run consecutively with each other and the sentence on Count IV shall run concurrently with the sentences imposed in Count I and II. It is the recommendation of the Court that the defendant be considered for placement in the Swan River Correctional Training Program. After completion of the correctional training program, the defendant shall be placed on the Intensive Supervision Program. If the defendant successfully completes these programs, the Court reserves the right to adjust the defendant’s sentence. It is the recommendation of the Court that as a condition of any parole or early release that the defendant shall abide by all of the conditions and provisions as set out in the Judgment done in open Court on the 28th day of April, 1995. In addition to the conditions of the Judgment, the defendant shall pay the cost of incarceration through the Clerk of the District Court in the amount of One Thousand Two Hundred Sixty Dollars (1,260.00) (28 days @ $45 per day), according to a schedule as set by his Probation Officer. Due to the defendant’s failure to comply with the terms and conditions of his suspended sentence while under the supervision of the Department of Probation and Parole, the Court finds that he is not entitled to receive, and shall not receive, credit for any elapsed time between the date of his conviction and the date of this Order, except that he shall receive credit from November 17, 1994, through November 29,1994; and from June 24,1996, through date of sentencing, July 8,1996, for twenty-eight (28) days jail time which he has previously served.

On May 8,1997, 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 Josh Van de Wetering, Deputy County Attorney of Missoula County.

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.

DATED this 13th day of June, 1997.

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

Done in open Court this 8th day of May, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member Hon. Wm. Neis Swandal and Alternate Member Hon. Robert Boyd.

The Sentence Review Board wishes to thank Cody R. Ekker for representing himself in this matter and also Josh Van de Wetering, Deputy County Attorney of Missoula County, for representing the State.  