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

#### STATE OF MONTANA, Plaintiff, -vs- ZACHARY DAVID SMITH, Defendant.

CAUSE NO. DC-14-065

DECISION

On July 14, 2015, the Court found the Defendant guilty of the offense of Criminal Endangerment, a felony, but mentally ill. The Defendant was committed to the custody of the Montana Director of the Department of Public Health and Human Services for a period of ten (10) years, with three (3) of those years suspended, for placement after consideration of the recommendations of the professionals providing treatment to the Defendant and recommendations of the professionals who have evaluated the Defendant, in an appropriate correctional facility, mental health facility, as defined in §53-21-102, MCA, or residential facility, as defined in 53-20-102, MCA, for custody, care, and treatment. The foregoing sentence was ordered to run consecutively to the sentence the Defendant is presently serving entered in Cause Number DC-08-485, of the Montana Fourth Judicial District Court, Missoula County, for the offense of Assault on a Peace Officer or a Judicial Officer, a felony.

The Court recommended to the Board of Pardons and Parole that the Defendant complete the ITU program at the Montana State Prison or a similar chemical dependency treatment program as it may exist at the time of his parole consideration or which may be available at whatever facility the Defendant is residing at the time of his parole consideration.

The Court further recommended to the Board of Pardons and Parole that the Defendant’s parole plan include a condition that he participate in an alcohol monitoring system or program designed to prevent his consumption of alcohol and to detect the Defendant’s consumption of alcohol as soon as possible, such as a SCRAM or a similar electronic alcohol monitoring device and/or participation in a 24/7 program. At any time the Defendant is placed in a community setting, he shall comply in all respects with the terms and conditions as imposed in the Judgment.

On August 5, 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”).

*83Done in open Court this 5th day of August, 2016.

DATED this 24th day of August, 2016.

The Defendant was present and was represented by Greg Beebe of Beebe Law Firm. 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 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 is AFFIRMED.

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