The District Court of the 4th Judicial District. County of Missoula.

#### STATE OF MONTANA, Plaintiff, vs. TYLER PEARCE, Defendant.

CAUSE NO. DC-06-488 DECISION

On September 1, 2009, the defendant was sentenced for violation of the conditions of a deferred sentence as follows: Count I: A commitment to the Montana Department of Corrections for a term of twenty (20) years with fifteen (15) years suspended for the offense of Burglary, a felony; Count II: A commitment to the Montana Department of Corrections for a term of ten (10) years with five (5) years suspended for the offense of Theft, a felony; and Count III: A commitment to the Montana Department of Corrections for a term of ten (10) years with five (5) years suspended, for the offense of Criminal Mischief, a felony. Counts I, II and III shall run concurrently with each other.

On February 4, 2010, the defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

*15The defendant was present and was represented by Eric Olson. The state was not represented.

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.

The majority of the Division finds that the reasons advanced for modification are sufficient to hold that the sentence imposed by the District Court is clearly excessive. The defendant is young and did not have a prior felony record before conviction on the instant felony offenses. While the Division does not excuse the violations of conditions of the deferred sentence, the defendant has shown remorse for his conduct and has responded with a changed attitude occasioned by the outreach of the church victimized by the defendant, which actually includes the defendant now as a part of its community. While the imposition of a Department of Corrections commitment is warranted, the nature of the violations would not warrant the excessive sentence imposed by the District Court nor is the sentence imposed consistent with similar sentences imposed for similar violations across the state.

Therefore, it is the majority decision of the Sentence Review Division that the sentence shall be modified as follows: Count I: A commitment to the Montana Department of Corrections for a term of ten (10) years with five (5) years suspended; Count II: A commitment to the Montana Department of Corrections for a term of ten (10) years with five (5) years suspended; and Count III: A commitment to the Montana Department of Corrections for a term of ten (10) years with five (5) years suspended. Counts I, II and III shall run concurrently with each other. The terms and conditions shall remain as imposed in the Judgment of the District Court dated September 1, 2009.

Done in open Court this 4th day of February, 2010.

DATED this 23rd day of February, 2010.

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

The Hon. Ray Dayton

dissents.

I respectfully dissent from my colleagues’ determination that the sentence imposed by the District Court was clearly excessive. The record indicates that the sentence is not excessive particularly including the period of supervision on Count I, with due emphasis upon deference to the sentencing judge’s discretion as required by the Rules. Also, in light of the defendant’s failure to successfully complete the chance given to him in the initial deferred imposition of sentence. It is evident that the defendant needs supervision and structure. The additional supervision would benefit the defendant rather than be a detriment.

Member, Hon. Ray Dayton.