
    STATE OF MONTANA, Plaintiff, -vs-BARRY EBLEN, Defendant.
    CAUSE NO. BDC-03-115
    DECISION
    
      DATED this 31st day of March, 2014.
   On September 24,2003, the Defendant was sentenced for Count II: Theft, a felony, in violation of Section 45-6-301(1)(a), MCA (2001), to Ten (10) years to the Department of Corrections with all time suspended; and for Count III: Assault on a Peace Officer, a felony, in violation of Section 46-5-210(1)(b), MCA (2001), to Ten (10) years to the Department of Corrections with Two (2) years suspended, and to run consecutive to Count II; and other terms and conditions outlined in the Judgment of Conviction Sentencing Order given September 24,2003. Counts I, IV and V were dismissed.

Pursuant to a Re-Sentencing hearing on October 10, 2007, the Defendant was sentenced for Count II: Theft, a felony, in violation of Section 45-6-301(1)(a), MCA (2001), to Ten (10) years to the Department of Corrections with all time suspended; and for Count HI: Assault on a Peace Officer, a felony, in violation of Section 45-5-210(1)(b), MCA (2001), to Ten (10) years to the Department of Corrections with Five (5) years suspended; Count HI shall run consecutive to Count II; this sentence shall run consecutive to BDC-03-315; and other terms and conditions outlined in the Judgment of Conviction Sentencing Order given September 24, 2003 and Re-Sentencing Order given October 10, 2007.

On February 20,2013, the Court revoked Defendant’s suspended sentence imposed under prior Order, filed October 18, 2007 (Doc. 35); and pursuant to Section 46-18-203(7)(1)(iii), MCA, the Court sentenced the Defendant for Count II: Theft, a felony, in violation of Section 45-6-301(1)(a), MCA (2001), re-sentenced to Ten (10) year term of commitment with the Montana Department of Corrections, for placement in an appropriate correctional facility or program; and for Count ID: Assault on a Peace Officer, a felony, in violation of Section 45-5-210(1)(b), MCA (2001), re-sentenced to serve a Five (5) year term of commitment with the Montana Department of Corrections, for placement in an appropriate correctional facility or program; Counts II and m shall run consecutive; and this sentence shall run consecutive to the sentence imposed in Cause No. BDC-03-315.

On February 27,2014, 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 by Vision Net from Crossroads Correctional Center in Shelby, Montana. The Defendant was represented by Ed Sheehy, Jr., Montana Office of Public Defender. The State was represented by Susan Weber, Deputy Cascade County Attorney. Ms. Weber appeared by Vision Net from Great Falls, Montana, due to severe weather and traveling conditions.

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 shall be AFFIRMED.

Done in open Court Ibis 27th day of February, 2014.

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