Montana Twenty First Judicial District Court. County of Ravalli.

#### STATE OF MONTANA, Plaintiff, -vs- DANIEL BOWEN, Defendant.

CAUSE NO. DC-14-214

DECISION

On March 11, 2015, the Defendant was sentenced to a commitment to the Montana Department of Corrections for a period of ten (10) years, of which five (5) years are were suspended, for the offense of Charge I - Intimidation, a Felony, in violation of §45-5-203, MCA. The Court did not feel the security of a prison placement was needed in this case, but found that some form of mental health placement or pre-release placement might be successful. As part of his conditions, Defendant was ordered to pay supervision fees and PSI preparation fee, both of which were eliminated on appeal. Defendant was credited with one (1) day of time served.

On February 4, 2016, 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 Jennifer Streano of the Office of the State 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 to 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).

It is the unanimous decision of the Division that the sentence is clearly excessive. The Defendant is clearly entitled to a MODIFIED sentence. The new sentence that shall be imposed is a ten (10) year commitment to the Department of Corrections with seven (7) of those years suspended. The Defendant shall receive credit for all time served since the date of his original sentence of March 11, 2015. In addition, the Defendant shall be subject to all the terms and conditions in the sentencing Judgment, during his suspended portion of his sentence, in particular Condition (u): “The Defendant shall obtain a mental health evaluation by a State-approved treatment provider/facility, at his/her own expense, and follow all recommendations of said evaluation.” The reason for this modification is that the Defendant has a long history of mental illness and there appears to be no appropriate mental health facility under the Department of Corrections in which to place him. *4Currently he is housed in the Montana Assessment and Sanctions Center (MASC). The behavior that led to the charge of Intimidation did not include actual injury to others. While the intent of the sentencing judge was for the Defendant to receive treatment in a non-secure/prison setting that has not been actualized. Therefore, in an effort for the Defendant to obtain needed treatment for a non-violent crime, the Division unanimously agrees that by lengthening his suspended time, he may return to the community sooner to access mental health resources.

Done in open Court this 4th day of February, 2016.

DATED this 29th day of February, 2016.

The remaining terms and conditions of the sentence imposed are not clearly inadequate or clearly excessive and are AFFIRMED.

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