
    FROM: The District Court of the 12th Judicial District. County of Hill.
    
      STATE OF MONTANA, Plaintiff, vs. George J. Henderson, Defendant.
    NO. DC 96-071 DECISION
    DATED this 13th day of June, 1997.
   On January 23,1997, it was ordered, adjudged and decreed, that defendant is guilty of Count I: Operating a Motor Vehicle While Declared a Habitual Traffic Offender; Count II: Reckless Driving by Eluding; and Count III: Driving While Under the Influence of Alcohol, fifth offense, and he is sentenced as follows: Count I: Sentenced to six months in the Hill County Jail. Count II: Sentenced to six months in the Hill County J ail. Count III: Sentenced to five years custody with the Montana Department of Corrections, and under authority of46-18-201(l)(e), MCA, recommended placement in an appropriate treatment program as determined by the Department with credit for 11 days served in custody. Upon any release upon parole by the Department he will be subject to conditions as stated in the January 23, 1997 judgment.

As all of the above acts were committed at the same time as part of one transaction, all of the sentences shall be served concurrently. The Court recommends that the defendant be considered for an alcohol treatment program as soon as possible, in any program found appropriate and available. He is relieved from any obligation for payment of surcharges, prosecution fees, supervision fees and fines, as his financial situation would not enable him to pay those charges.

On May 9,1997, 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 was represented by Ray Dearie, legal intern of 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. 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.

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, there is a split decision of the Sentence Review Division. The Honorable Jeffrey Sherlock and the Honorable Wm. Neis Swandal vote to affirm the sentence.

Done in open Court this 9th day of May, 1997.

Chairman, Hon. Jeffrey M. Sherlock, Member, Hon. Wm. Neis Swandal.

The Honorable Robert Boyd dissents. Reasons being that Judge Boyd believes it is an excessive sentence.

Alternate Member, Hon. Robert Boyd.

The Sentence Review Board wishes to thank Ray Dearie, legal intern of the Montana Defender Project for representing George Henderson in this matter.  