
    STATE OF MONTANA Plaintiff, -vs-BRIAN LEN OSBORN, Defendant.
    CAUSE NO. DC-07-282
    DECISION
   On December 18,2007, the Defendant was sentenced for Count I: Theft, a felony, in violation of Section 45-6-301(8), MCA to Ten (10) years to Department of Corrections with Five (5) years suspended; for Count H: Obstructing A Peace Officer or Other Public Servant, a misdemeanor, in violation of Section 45-7-302(1), MCA to Six (6) months to Missoula County Detention Center; and for Count HI: Resisting Arrest, a misdemeanor, in violation of Section 45-7-301, MCA to Six (6) months to Missoula County Detention Center, Counts II and IQ shall run concurrent with Count I and with the Revocation Judgment in Cause No. DC-01-423, receive credit for the amount of time served of 157 days; and other terms and conditions given in the Judgment on December 18,2007.

On May 8,2008, the Defendants Application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court (hereafter “the Division”). In its Decision, the Division amended the Judgment as follows:

“Page 4: Delete Gamblers Anonymous Program and modify to Self Help Programs-Defendant shall attend self-help groups at the discretion of his Probation/Parole Officer.

Page 6: Condition #14 shall be amended to read: The Defendant shall not possess or consume intoxicants/alcohol, norenter anyplace where intoxicants are the chief item of sale unless employed in a place where alcohol is served and authorized by his Probation/Parole Officer. He shall submit to routine or random breath or bodily fluid testing for drugs or alcohol as requested by his Probation/Parole Officer (mandatory for meth, 2nd offense.) The remaining terms and conditions shall remain as imposed.”

On December 31, 2013, the prior sentence imposed on December 18, 2007, was revoked. The Defendant was sentenced for Count I: Theft, a felony, in violation of Section 45-6-301(8), MCA to Five (5) years to Department of Corrections with Two (2) years suspended; the Court recommends to the Department that Defendant be screened for placement in the Intensive Supervision Program; receive credit for time served of 241 days; this sentence shall run consecutive to the sentence Defendant is currently serving from Cascade County; the terms and conditions of the deferred or suspended portion of this Judgment are the same as those contained in the Judgment filed on December 26, 2007; and other terms and conditions given in the Judgment on December 31,2013.

On May 8,2014, 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 appeared by Vision Net from the Great Falls Regional Prison in Great Falls, Montana. The Defendant was represented by Ed Sheehy, Jr., Montana Office of Public Defender. The State was not represented.

DATED this 28th day of May, 2014.

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. With respect to the Defendant’s argument concerning jail credit, the Defendant’s arguments could be presented in a Petition for Post-Conviction Relief if it is deemed appropriate.

Therefore, it is the unanimous decision of the Division that the sentence shall be AFFIRMED.

Done in open Court this 8th day of May, 2014.

Chairperson, Hon. Brad Newman, Member Hon. Brenda Gilbert and Alternate Member Hon. John Warner.  