From: The District Court of the 2nd Judicial District. County of Silver Bow.

#### STATE OF MONTANA, Plaintiff, vs. ROBERT R. MILLIGAN, Defendant,

CAUSE NO. DC-06-61 DECISION

On July 12, 2007, the defendant was sentenced as follows: Count I: Ten (10) years in the Montana State Prison, with five (5) years suspended, for the offense of Negligent Vehicular Assault, a felony; *56Count II: A commitment to the County Jail for a term of one (1) year, for the offense of Negligent Vehicular Assault, a felony; and Count III: A commitment to the County Jail for a term of one (1) year, for the offense of Negligent Vehicular Assault, a felony. The Defendant is not parole eligible until he completes Anger Management, Chemical Dependency Intensive Treatment Unit and Cognitive Principles and Restructuring. The Court also recommends the Defendant complete a psychological evaluation and if recommended by mental health personnel begin treatment prior to his release from the Montana State Prison. Counts I, II and III shall run concurrently with each other and consecutively with the sentence imposed in Cascade County.

On June 18, 2009, the defendant filed a Motion for Rehearing. The Sentence Review Division after reviewing the reasons given granted the Motion on July 10, 2009.

On August 6, 2009, the defendant’s application for review of that sentence was reheard by the Sentence Review Division of the Montana Supreme Court.

The defendant was present via videoconference and was represented by Walter Hennessey. The state was represented by Michael Clague.

Before hearing the application, the defendant was advised that the Sentence Review 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 Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

Rule 17 of the Rules of the Sentence Review Division of the Supreme Court of Montana provides that “the sentence imposed by the District Court is presumed correct, and the sentence will not be reduced or increased unless it is deemed clearly inadequate or excessive.” (§46-18-904(3), MCA).

The Division in its May 7,2009 determination that the sentence was clearly excessive was unaware of the fact that the Cascade County five (5) year suspended sentence had been revoked in August of 2007. Without the knowledge that the sentence had been changed from consecutive, which was the ruling of Judge Krueger, to concurrent by Cascade County, it had the net effect of reducing Mr. Milligan’s probationary time by an additional three (3) years. Without that knowledge the Division felt that the sentence was clearly excessive. With that knowledge, the Division now finds that the reasons advanced for modification were insufficient to hold that the sentence imposed by the District Court was inadequate or excessive.

Therefore, it is the unanimous decision of the Sentence Review Division that the modification of the sentence by the Sentence Review *57Division on May 7, 2009, was inadequate and the original sentence imposed on July 12, 2007, in Silver Bow County shall be affirmed and reinstated.

Done in open Court this 6th day of August, 2009.

DATED this 20th day of August, 2009.

Chairperson, Hon. Stewart Stadler, Member, Hon. Blair Jones and Member, Richard Simonton.