
    STATE OF MONTANA, Plaintiff, vs. GREGORY JOHN MERGENTHALER, Defendant.
    NO. BDC-92-014
    DATED this 12th day of March, 1993.
    DECISION
   On December 8,1992, the Defendant was sentenced to ten (10) years for Negligent Homicide. As a condition of defendant’s parole, he shall pay restitution for all medical and funeral expenses for the victim of his crime.

On March 12, 1993, 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 Leo Gallagher, Attorney from Helena, Montana. The state was represented by Mike McGrath, County Attorney from Helena, Montana.

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 was a split decision by the Sentence Review Division. The sentence shall be affirmed 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.

Hon. Thomas McKittrick, Chairman, and Hon. John Warner

DISSENT: THE HONORABLE JAMES PURCELL DISSENTS. Judge Purcell would have changed the non-dangerous designation to dangerous designation. Based upon the Pre-sentence Investigation Report which indicates there may have been sexual violence connected with the victim in this case as well as reports of the investigator from other persons who he admittedly was associated with. Under 46-18-404(l)(b), MCA, Judge Purcell considers that the Pre-sentence Investigative Report and the evidence certainly represents that this person is a substantial danger to other persons and society. The fact that when the Defendant was asked by the Court, he appeared to be cold and calculating, in regards to the answers about the sexual references made in the Pre-sentence Report.

The Sentence Review Board wishes to thank Leo Gallagher, Attorney from Helena for his assistance to the defendant and to this Court. The Board also wishes to thank Mike McGrath for appearing on behalf of the State of Montana.  