
    STATE OF MONTANA, Plaintiff, -vs-PENNY LYNN FENSTERMAKER, a/k/a PENNY LYNN SPENCER, Defendant.
    
      CAUSE NO. DC-08-266
    DECISION
    
      DATED this 29th day of April, 2014.
   On September 16,2008, the Defendant was sentenced for Theft-Common Scheme, a felony, in violation of Section 45-6-301(8), MCA, to Ten (10) years to Montana Women’s Prison with Ten (10) years suspended, Defendant shall be placed under supervision of the Department of Corrections; and other terms and conditions in the Judgment given on September 16, 2008.

On April 26, 2011, the Defendant’s prior sentence imposed and pronounced in open Court on September 16, 2008, was revoked. The Defendant was sentenced for Theft-Common Scheme, a felony, in violation of Section 45-6-301(8), MCA, to Ten (10) years to Montana Women’s Prison, receives credit for time served of 28 days plus credit for time she serves in federal prison, shall not receive street-time credit, this sentence shall run concurrent with the sentence imposed in Defendant’s federal cause; and other terms and conditions in the Judgment given on April 26, 2011.

On April 11, 2014, 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 was present and was represented by Ed Sheehy, Jr., Montana Office of Public Defender. The State was not represented.

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 she understood this and stated that she 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 shall be AFFIRMED.

Done in open Court this 11th day of April, 2014.

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