
    STATE OF MONTANA, Plaintiff, vs. Rusty L. Esterbrook, Defendant.
    NO. 11556
    DECISION
    DATED this 2nd day of December, 1996.
   On January 24, 1996, it was the judgment of the Court that Rusty Lyle Esterbrook be and is hereby sentenced to a term of twenty (20) years each on Count I and II in the Montana State Prison in Deer Lodge, Montana. The sentences shall run consecutively with each other. It is the recommendation of the Court that prior to becoming eligible for parole that the defendant shall successfully complete all of the sexual offender treatment programs available at the Montana State Prison. It is further ordered that the defendant shall register as a sexual offender, pursuant to Section 46-23-504 and 46-23-505, M.C.A., with the Department of Institutions, Chief of Police, and Sheriff of the County wherein he resides for a period of ten (10) years following his release from custody. The defendant shall further notify any law enforcement agency with whom he was last registered of any change in address as further set forth under the law and register with the Department of Institutions, Chief of Police and Sheriff if he should change his address during this ten (10) year period. That, however, ten (10) years of defendant’s sentence on Count I and all of defendant’s sentence on Count II is hereby suspended on the terms and conditions as listed in the January 24, 1996 judgment. Defendant shall receive credit for time served at Missoula County Jail from April 4, 1995, through April 7, 1995; and from October 15, 1995, through date of sentencing, January 31, 1996, in the amount of one hundred thirteen (113) days.

On November 14,1996, 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 Sharon Noel, legal intern of the Montana Defender Project. The state was represented by Deputy County Attorney Robert Zimmerman of Missoula.

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, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

Done in open Court this 14th day of November, 1996.

Chairman, Hon. Ted O. Lympus

Member, Hon. Jeffrey M. Sherlock

Member, Hon. William Neis Swandal

The Sentence Review Board wishes to thank Sharon Noel, legal intern of the Montana Defender Project, for representing Rusty L. Esterbrook in this matter and also Deputy County Attorney Robert Zimmerman for representing the State.  