
    STATE OF MONTANA, Plaintiff, vs. FRANK EUGENE JOHNSON, Defendant.
    NO. CR 92-44
    DECISION
    
      DATED this 6th day of May, 1994.
   On June 30, 1993, the Defendant was sentenced to twenty (20) years at Montana State Prison for the offense of Sexual Assault without the possibility of parole. It is recommended to the Department of Corrections that the defendant complete both Phase One and Phase Two of the Sexual Offender Treatment Program, to include the Intensive Treatment Unit within that Program while in the Montana State Prison.

On May 6,1994, 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 Barbara Benson, 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, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed, however, the defendant shall be given credit for jail time served.

The reason for the amendment is because there were no reasons listed by the sentencing judge why credit for jail time should not be given. The remaining portion of 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. Not only is the sentence presumed correct, but the record justifies the sentence imposed considering the circumstances and because of the defendant’s prior criminal history.

Hon. G. Todd Baugh, Chairman, Hon. John Warner and Hon. Ted Lympus, Members.

The Sentence Review Board wishes to thank Barbara Benson, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.  