
    Montana Fourth Judicial District Court. County of Missoula.
    STATE OF MONTANA, Plaintiff, -vs- DANIEL JAMES FOX, Defendant.
    CAUSE NO. DC-14-430
   DECISION

On April 9, 2015, the Defendant was sentenced to twenty (20) years to the Montana State Prison, for the offense of Count III: Criminal Distribution of Dangerous Drugs - Narcotic or Opiate, a Felony, in violation of §45-9-101(2), MCA. The Court recommended the Defendant be screened for Nexus as early as possible. Upon the successful completion of the treatment, the Court advised the Defendant may petition the Court to suspend the remaining portion of his sentence. Defendant was granted credit for time served in the amount of 248 days at the rate of $100.00 per day toward Defendant’s fine. However, the amount of credit given could not exceed the total amount of fine due.

On May 6, 2016, the Defendant’s Application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court (hereafter “the Division”).

The Defendant appeared by video conferencing from Crossroads Correctional Center and was represented by Peter Ohman of the Office of the State Public Defender. The State was not represented. Judge John Larson appeared and testified.

Done in open Court this 6th day of May, 2016.

DATED this 10th day of June, 2016.

Before hearing the Application, the Defendant was advised that the Division has the authority not only to reduce the sentence or affirm it, but also increase it. The Defendant was further advised that there is no appeal from a decision of the Division. The Defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 12, Rules of the Sentence Review Division of the Supreme Court of Montana, provides that, “The sentence imposed by the District Court is presumed correct. The sentence shall not be reduced or increased unless it is clearly inadequate or clearly excessive.” (Section 46-18-904(3), MCA).

The Division finds that the reasons advanced for modification are insufficient to hold that the sentence imposed by the District Court is clearly inadequate or clearly excessive. Therefore, it is the unanimous decision of the Division that the sentence is AFFIRMED.

Moreover, as to issues raised during the course of this hearing regarding objections to referring to charges that were dismissed and presumably outside the record, it is the opinion of this Court, that crimes that were charged and later dismissed, are appropriate to be considered by the Sentence Review Division. Legal authority supports such consideration.

Defendant’s counsel objected to the sentencing judge appearing at the hearing and making a statement. The Division finds it appropriate to consider the statements of Judge Larson, made in person, in light of Rule 6 of the Sentence Review Division Rules of the Montana Supreme Court. Moreover, past practice has allowed any sentencing judge to appear. In this case, Judge Larson confined his remarks to the matters he considered at the time of sentencing.

Hon. Brenda Gilbert, Chairperson, Hon. Brad Newman, Member and Hon. Kathy Seeley, Member.  