Montana First Judicial District Court. County of Lewis and Clark.

#### STATE OF MONTANA, Plaintiff, -vs- JOSHUA DAVID GIDDINGS, Defendant.

CAUSE NO. DC-05-260

DECISION

On March 29, 2007, for the offense of Count I: Deliberate Homicide, a Felony, the Defendant was sentenced to the Montana State Prison for LIFE, without parole. The Court determined that the Defendant met the definition of a “Persistent Felony Offender”. For the offense of Count II: Tampering with or Fabricating Physical Evidence, a Felony, the Court sentenced the Defendant, as a Persistent Felony Offender, to the Montana State Prison for a term of fifty (50) years. It was further ordered that for the felony offense of Count III: Criminal Possession of Dangerous Drugs (methamphetamine), the Court sentenced the defendant, as a Persistent Felony Offender, to the Montana State Prison for a term of fifty (50) years. The foregoing sentences were ordered to run consecutively to each other, and consecutively to the sentences imposed upon the defendant in Cause No. ADC 2004-342. The Court ordered that the defendant pay restitution in the amount of $6,343.08, plus an administrative handling fee, to the Montana Crime Victim’s Fund for costs incurred for the victim’s funeral and for counseling costs incurred by the victim’s family members.

On November 17, 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 Brent Getty of the Office of the State Public Defender. The State was not represented. Defendant’s mother, Connie Giddings, was present.

Before hearing the Application, the Defendant was advised that the *106Division 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.

Done in open Court this 17th day of November, 2016.

DATED this 12th day of December, 2016.

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 in regard to Count I: Deliberate Homicide, the sentence of Life without Parole is not clearly excessive. In regard to Count II: Tampering With or Fabricating Physical Evidence and Count III: Criminal Possession of Dangerous Drugs (methamphetamine), the Division determined the sentences are clearly excessive. The Division found that imposing the maximum sentence possible under the Persistent Felony Offender statute when compared to other similar cases and in light of the Life without Parole sentence, was clearly excessive. The Division decreased the two fifty (50) year sentences as follows: Counts II and III are DECREASED to ten (10) years each to run consecutively to each other and to Count I. 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.