                                         OP 09-0609                                        March 9 2010

               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2010 MT 43


JEREL DRIVER, CHARLES SMITH, ALAN COMBS,
ABEL GONZALES, MICHAEL HAMMOND,
MARTIN SWAN, CLIFFORD DELGER,
DANIEL MILES, TIMOTHY DeHERRERA,
WILLIAM PIPER, RONALD HUMMEL,
STEVEN WHITECLOUS, CLEVE SPANG,
ZANE WYMORE, DARIN GUCKEEN,
TOMMY SETH DELLAR,

              Petitioners,

         v.

THE SENTENCE REVIEW DIVISION IN THE
SUPREME COURT OF THE STATE OF MONTANA,

              Respondent.


ORIGINAL PROCEEDING:                Petition for Writ of Supervisory Control


COUNSEL OF RECORD:

               For Petitioners:

                      Joslyn Hunt, Chief Appellate Defender (argued);
                      Eric Olson (argued), Assistant Public Defender; Helena, Montana

               For Respondent:

                      Hon. Steve Bullock, Montana Attorney General; Sheri K. Sprigg,
                      Assistant Attorney General (argued); Helena, Montana

                      Dennis Paxinos, Yellowstone County Attorney; Mark Murphy, Chief
                      Criminal Deputy County Attorney (argued); Billings, Montana



                                                  Argued and Submitted: January 27, 2010

                                                                Decided: March 9, 2010


Filed:

                      __________________________________________
                                        Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Petitioners filed a motion with the Sentence Review Division (Division) seeking

clarification of the standard of review to be applied to criminal sentences submitted to the

Division for review.    The Division denied the Petitioners’ motion, holding that the

“clearly inadequate or excessive” standard under Rule 17, Mont. Sent. Rev. Div.,

correctly stated the appropriate standard of review. Petitioners then filed a Petition for

Writ of Supervisory Control with this Court, asserting the Division was proceeding under

a mistake of law.

¶2     We state the issues as follows:

¶3     1. Is the exercise of supervisory control appropriate in this matter?

¶4     2. Did the Division err by denying Petitioners’ motion to clarify the standard of

review applicable to sentences reviewed by the Division?

                    PROCEDURAL AND FACTUAL BACKGROUND

¶5     Petitioners are criminal defendants who have petitioned or intend to petition the

Division for review of their sentences. On January 9, 2009, Petitioners filed a motion

before the Division requesting that the Division clarify the standard it applies to

sentences submitted for review. Petitioners argued that the Division should declare that

the “clearly inadequate or excessive” standard in Rule 17 of the Division’s Rules “is not

the applicable standard.” Instead, the motion asked that the Division “review its cases for

equity.”   On May 12, 2009, the Attorney General filed a response objecting to

Petitioner’s motion and arguing in support of the standard stated in Rule 17.

                                         2
¶6     The Division denied the motion, reaffirming Rule 17 as the appropriate standard

of review and rejecting Petitioners’ argument that their sentences should be reviewed for

equity. In its order, the Division also stated that its “rules and practices . . . have

considered sentences to be unjust or inequitable if they are so greatly disproportionate to

the crime as to constitute cruel and unusual punishment.”

¶7     Petitioners filed a Petition for Writ of Supervisory Control with this Court, arguing

that the Division erred in denying its motion and was thus proceeding under a mistake of

law. The State filed its response, agreeing that this was an appropriate case for the

exercise of supervisory control by this Court.

                    JURISDICTION & STANDARD OF REVIEW

¶8     We may assume supervisory control, as authorized by Article VII, Section 2(2) of

the Montana Constitution and M. R. App. P. 14(3) (2007) (former M. R. App. P. 17), to

control the course of litigation where the district court “is proceeding under a mistake of

law and is causing a gross injustice.” M. R. App. P. 14(3)(a); State v. Thirteenth Jud.

Dist. Ct., 2009 MT 163, ¶ 13, 350 Mont. 465, 208 P.3d 408; see Sportsmen for I-143 v.

Mont. Fifteenth Jud. Dist. Ct., 2002 MT 18, ¶ 4, 308 Mont. 189, 40 P.3d 400 (citing Park

v. Mont. Sixth Jud. Dist. Ct., 1998 MT 164, ¶ 13, 289 Mont. 367, 961 P.2d 1267). Our

determination of whether supervisory control is appropriate is a case-by-case decision,

based on the presence of extraordinary circumstances and a particular need to prevent an

injustice from occurring. Sportsmen for I-143, ¶ 4 (citing Park, ¶ 13).




                                         3
¶9     The proper basis by which this Court may review a challenge to a decision of the

Sentence Review Division is through a petition for extraordinary relief. Ranta v. State,

1998 MT 95, ¶ 12, 288 Mont. 391, 958 P.2d 670. “Because the Sentence Review

Division functions as an arm of this Court, this Court has the supervisory authority to

ensure that it complies with statutes and rules governing its operations as well as the

Montana Constitution and the United States Constitution.” Ranta, ¶ 12 (citing § 46-18-

901(1), MCA; Mont. Const. art. VII, § 2). Pursuant to M. R. App. P. 14(1), this Court

has the power to “hear and determine such original and remedial writs as may be

necessary or proper to the complete exercise of its jurisdiction.” See Ranta, ¶ 12.

                                      DISCUSSION

¶10    1. Is the exercise of supervisory control appropriate in this matter?

¶11    Petitioners contend that supervisory control is appropriate to correct the Division’s

mistake of law of applying the “clearly inadequate or excessive” standard to the review of

sentences before it. The State agrees that supervisory control is appropriate, but requests

that we do so to affirm that the “clearly inadequate or excessive” standard of review is

appropriate.

¶12    We can exercise supervisory authority to ensure that the Division, as an arm of

this Court, complies with the statutes and rules governing its operations, as well as the

Montana Constitution and the United States Constitution. Jordan v. State, 2008 MT 334,

¶ 22, 346 Mont. 193, 194 P.3d 657 (quoting Ranta, ¶ 12). Because we have exclusive

jurisdiction to review the Division’s compliance with governing statutes and rules, as

                                         4
well as state and federal constitutional mandates, Jordan, ¶ 22 (citing Ranta, ¶ 12), we

deem this case appropriate for the exercise of supervisory control to resolve the issue

raised by the petition.

¶13 2. Did the Division err by denying Petitioners’ motion to clarify the standard of
review applicable to sentences reviewed by the Division?

¶14    In its order, the Division agreed with Petitioners’ observation that the Legislature

did not articulate a standard of review within the statutes creating and governing the

Sentence Review Division. See §§ 46-18-901 through 905, MCA (2007). However,

noting that the statutes granted it authority to “adopt any rules that will expedite its

review of sentences,” § 46-18-901(4), MCA, the Division cited its purpose and standards

for review of criminal sentences as set forth in Rules 16 and 17. The Division rejected

Petitioners’ assertion that sentences should be reviewed for abuse of discretion or equity,

and affirmed the standard set forth in Rule 17, that sentences “will not be reduced or

increased unless it is deemed clearly inadequate or excessive.” Acknowledging that

sentences may be challenged as “unjust or inequitable,” the Division appeared to define

this review narrowly by holding that “[t]he rules and practices of this division have

considered sentences to be unjust or inequitable if they are so greatly disproportionate to

the crime as to constitute cruel and unusual punishment.” The Division stated that this

Court “approved such analysis in In re Jones,” 176 Mont. 412, 587 P.2d 1150 (1978).

¶15    Petitioners contend that the “clearly inadequate or excessive” standard of Rule 17

“unnecessarily limits the Division’s reviewing power” and contradicts statements made

by this Court that the Division “will review sentences for equity.” See State v. Herd,
                                         5
2004 MT 85, ¶ 22, 320 Mont. 490, 87 P.3d 1017. They note that this standard is not

stated within the Division’s statutory authorization. During oral argument, Petitioners

focused their argument on the language within the Division’s order which appeared to

define inequitable sentences as only those which constitute cruel and unusual

punishment. Petitioners argue that the Division should review for equity “in the broadest

sense of the word, so the Division may review everything encompassing a defendant’s

sentence.”

¶16    The State, during argument, agreed that the language within the Division’s order

purporting to limit review to sentences constituting cruel and unusual punishment was

unduly narrow. However, the State argues that the Division’s adoption of the “clearly

inadequate or excessive” standard under Rule 17, pursuant to its statutory authority to

promulgate rules, was an appropriate application of the statutory directive that “[t]he

sentence imposed by the district court is presumed correct.”         Section 46-18-904(3),

MCA. The State acknowledges that the Division may take into account “equity issues”

and “considerations of justice,” but that its primary role is the reduction of disparities in

prisoner sentencing, noting Rule 16’s statement that the primary objective of the Division

“is to provide uniformity in sentencing.”

¶17    Montana law provides for generalized, indiscriminate sentencing of criminal

defendants, with term ranges and broad authority for sentencing courts to impose

conditions. “One of the purposes of the 1973 Montana Criminal Code was to vest wide

sentencing discretion in the trial judge who is familiar with the character and past record

                                            6
of the defendant, and with the circumstances of the particular case.” State v. Maldonado,

176 Mont. 322, 334, 578 P.2d 296, 303 (1978). “[I]n imposing sentence, the sentencing

court may consider any relevant evidence relating to the nature and circumstances of the

crime, the character of the defendant, the defendant’s background history, mental and

physical condition, and any evidence the court considers to have probative force.” State

v. Collier, 277 Mont. 46, 63, 919 P.2d 376, 387 (1996) (citing State v. Klippenstein, 239

Mont. 42, 45, 778 P.2d 892, 894 (1989)). “The District Court is given a wide scope of

inquiry in sentencing.” Klippenstein, 239 Mont. at 45, 778 P.2d at 894 (citing State v.

D.B.S., 216 Mont. 234, 247-48, 700 P.2d 630, 639-40 (1985)).

¶18   The Legislature “voluntarily created” the Division, State ex rel. Holt v. Dist. Ct.,

2000 MT 142, ¶ 12, 300 Mont. 35, 3 P.3d 608, to serve essentially as a safety net for our

indiscriminate sentencing system, providing additional protection for both the public and

for the individual defendant. The Division was created to review sentences challenged as

being unjust or inequitable and “was charged with determining the appropriateness of

criminal sentences with respect to the individual offender and a particular offense.”

Jordan, ¶ 18 (citations omitted). To assist in accomplishing this purpose, the Legislature

granted the Division authority to “adopt any rules that will expedite its review of

sentences.” Section 46-18-901(4), MCA; Holt, ¶ 6.

¶19   Rule 16, Mont. Sent. Rev. Div., provides that “[t]he primary objective of the

Sentence Review Division is to provide for uniformity in sentencing when appropriate”

and to “ensure that the interest of the public and the defendant are adequately addressed

                                        7
by the sentence.” Regarding the public’s interests, Rule 16 provides the Division shall

consider the State’s correctional policy “to protect society by preventing crime,” will

“hold an individual responsible and accountable for his/her actions,” and remove

“dangerous and habitual offenders from society.” Regarding the defendant’s interests,

the rule instructs that the Division “shall ensure that persons convicted of crime are dealt

with in accordance with their individual characteristics, circumstances, needs and

potentialities,” and shall consider “whether the offender could have been dealt with

adequately by probation, suspended sentence or fine . . . .” The rule directs that the

Division’s review consider various factors, including the crime committed, the offender’s

prospect of rehabilitation, the circumstances of the crime, and the criminal history of the

offender. Rule 15 requires the Division to review the record in the case, including

pleadings, plea agreements, pre-sentence reports, judgments and “[o]ther documents

relied on by the sentencing judge.” The Division’s review is procedurally governed by

Rule 14 which provides that proceedings before the Division “shall be as informal as

possible to allow full expression by all parties and their attorneys. The Rules of Evidence

will serve as a guide but are not binding in the proceeding.”

¶20    These rules together provide for an appropriately broad review of the totality of

the facts and circumstances of each case, which we have previously described as a review

“for equity, disparity, or considerations of justice by the Sentence Review Board.” State

v. Stephens, 198 Mont. 140, 145, 645 P.2d 387, 390-91 (1982).               The Division’s

consideration is not cabined by rigid guidelines, and a defendant can rightly appeal to the

                                         8
Division’s judges on equitable grounds such as fairness, consistency and uniformity, as

can the State.

¶21    Section 46-18-904(3), MCA, provides that “[t]he sentence imposed by the district

court is presumed correct.” Thus, after hearing evidence and argument, the Division

must decide whether this presumption has been overcome and a new sentence should be

imposed, “including a decrease or increase in the penalty.” Section 46-18-904(1)(a)(ii),

MCA. The Division does so by determining, after its broad review, whether the original

sentence was “clearly inadequate or excessive” under Rule 17. Although Petitioners

criticize this standard, they conceded during argument that Rule 17 is not inconsistent

with the statutes governing the Division, and we cannot conclude otherwise. Further, we

cannot conclude that the Rule exceeds the Division’s authority. Simple “equity” cannot

serve as the standard of review, as the Legislature did not intend for the Division to

engage in de novo sentencing. Indeed, we have held that the Division “under Montana’s

procedure may not substitute its discretion for the district court’s. Instead, the sentence

imposed by the district court is presumed correct . . . .” Ranta, ¶ 23 (citing § 46-18-

904(3), MCA, and Rule 17, Mont. Sent. Rev. Div.). Further, the Division’s interpretation

of applicable governing statutes “is entitled to deference and respect because the Division

is charged by the legislature with the administration of Montana’s sentence review

statutes.” Holt, ¶ 10 (citing State v. Midland Materials Co., 204 Mont. 65, 70, 662 P.2d

1322, 1325 (1983)).     Therefore, we conclude Rule 17 is a valid application of the

Division’s statutory duty.

                                         9
¶22    This analysis of the Division’s standard of review undermines the statement in the

Division’s order to the effect that sentences would be considered unjust or inequitable “if

they are so greatly disproportionate to the crime as to constitute cruel and unusual

punishment,” citing Jones. In Jones, we merely mentioned the Division’s determination

to leave Jones’s sentence unchanged as one reason we were rejecting Jones’s cruel and

unusual punishment claim. Jones, 176 Mont. at 420, 578 P.2d at 1154-55. We were not

indicating that the scope of the Division’s review was limited to sentences which were

cruel and unusual, as that is certainly incorrect. To that extent, then, the Division’s order

is reversed.

¶23    Accordingly, we accept supervisory control in this matter, and correct the

Division’s order as stated herein.

                                                  /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ PATRICIA O. COTTER
/S/ W. WILLIAM LEAPHART
/S/ BRIAN MORRIS



Justice James C. Nelson, dissenting.

¶24    I cannot understand what it is that the Court is holding in its Opinion. I do not

agree that the “clearly inadequate or excessive” standard used by the Sentence Review

Division (SRD) complies with the criteria that we appear nominally to mandate in

                                         10
today’s Opinion for sentence review. And I am not satisfied, in any event, that any

standard which either this Court or SRD adopts makes any sense in the absence of a

readily accessible database of statewide sentencing statistics.

¶25    To begin with, it is not clear what standard, exactly, we are adopting for sentence

review. On one hand, the Court reverses SRD’s order that sentences would be considered

unjust or inequitable “if they are so greatly disproportionate to the crime as to constitute

cruel and unusual punishment.” See Opinion, ¶ 22. I agree with the Court’s decision in

this regard and with the limitation the Court places on the language of In re Jones, 176

Mont. 412, 578 P.2d 1150 (1978), from which SRD adopted this standard. Opinion, ¶ 22.

Furthermore, I do not take issue with the Court’s statements in ¶ 17 regarding the broad

authority and discretion granted by statute to district courts in sentencing matters. 1 Nor

do I disagree that SRD was created to serve as a “safety net” against “unjust” and

“inequitable” sentences imposed upon individual offenders for particular offenses.

Opinion, ¶ 18. Finally, I agree that SRD’s review “is not cabined by rigid guidelines”

and that SRD must consider a defendant’s petition for sentence review on “equitable

grounds” such as “fairness, consistency and uniformity.” Opinion, ¶ 20.




       1
        Notwithstanding, however, that this Court seems to be increasingly content—or
perhaps determined—to chip away at this broad sentencing discretion by turning some
sentencing decisions over to the correctional system’s bureaucracy. See e.g. State v.
Hernandez, 2009 MT 341, 353 Mont. 111, 220 P.3d 25 (upholding the imposition of the
Department of Corrections’ “standard conditions of probation” irrespective of the nexus
requirement this Court articulated in State v. Ashby, 2008 MT 83, 342 Mont. 187, 179
P.3d 1164, and reaffirmed in State v. Stiles, 2008 MT 390, 347 Mont. 95, 197 P.3d 966).
                                         11
¶26    Yet, on the other hand, and in the face of having said all of the foregoing, the

Court summarily concludes that since the sentence imposed by the district court is

presumed correct, SRD’s “clearly inadequate or excessive” standard is “a valid

application of [SRD’s] statutory duty” to review petitions for sentence review. Opinion,

¶ 21. I do not agree that the rigid “clearly inadequate or excessive” standard incorporates

the notions of “fairness” and “equity” that the Court appears nominally to mandate earlier

in its Opinion, as noted above. Thus, in holding as it does, the Court implicitly overrules

(unfortunately, without citation to the many cases affected, see ¶ 34 & n. 2, infra) our

well-established and extensive caselaw that, until today, required SRD to review

sentences for “equity.”

¶27    So, where does that leave the law? Apparently the “primary objective” of SRD is

to ensure “uniformity in sentencing.” Opinion, ¶ 19. But SRD may also (as the State

acknowledges) “take into account ‘equity issues’ and ‘considerations of justice,’ ”

Opinion, ¶¶ 16, 20, including “fairness” and “consistency,” Opinion, ¶ 20. Yet, under

SRD’s “clearly inadequate or excessive” standard, this “primary objective” cannot be

achieved through review for simple “equity,” Opinion, ¶ 21, even though SRD may

consider equity issues, Opinion, ¶¶ 16, 20.

¶28    There are two problems here. First, the parties, and now this Court, casually throw

out terms and phrases without regard to what they actually mean. Second, as noted, this

case convinces me that no entity in the criminal justice system has any way of actually




                                        12
determining whether sentences handed down by the district courts are “uniform,” much

less consistent, equitable, fair, just, or proportionate.

¶29    With respect to terminology, “uniformity in sentencing” contemplates that

sentences will be characterized by a lack of variation; that they will be identical or

consistent. See Black’s Law Dictionary 1668 (Bryan A. Garner ed., 9th ed., West 2009).

However, as noted, both the State and this Court qualify this exacting standard with the

requirement that sentencing courts take into account “equity issues.” Equity broadly

contemplates fairness, impartiality, and evenhandedness. See Black’s Law Dictionary

619. Moreover, both the State and this Court further qualify the uniformity standard by

requiring sentencing courts to take into account “considerations of justice.” That which

is just is legally right, lawful, and equitable. See Black’s Law Dictionary 942. Finally,

even SRD acknowledges that it has an obligation to reduce disparities in the sentencing

of prisoners. Disparity means inequality, i.e., “a difference in quantity or quality between

two or more things.” Black’s Law Dictionary 538. Thus, using the terminology the

Court adopts, it appears that the “primary objective” of SRD is, at one and the same time,

to review sentences for a lack of variation; for fairness, impartiality, and evenhandedness;

for legality and equity; and for differences in quantity and quality as compared with other

sentences imposed.

¶30    Yet, SRD’s Rule 17 states that a sentence will be reviewed to determine whether it

is “clearly inadequate or excessive.” “Clear” means “[f]ree from doubt; sure.” Black’s

Law Dictionary 287. “Inadequate” means “insufficient.” Merriam-Webster’s Collegiate

                                           13
Dictionary 586 (10th ed., Merriam-Webster 1997). “Excessive” means “going beyond a

normal limit.” Merriam-Webster’s Collegiate Dictionary 404. Thus, under Rule 17,

SRD reviews a sentence to determine whether the sentence, without doubt, is insufficient

or goes beyond the normal limit.

¶31    In my view, SRD’s power of “broad review,” Opinion, ¶ 21, applying the nuanced

terminology that this Court has adopted, cannot be squared with or accomplished under

the “clearly inadequate or excessive” standard.       “Clearly inadequate or excessive”

contemplates that a much wider range of sentences will be found appropriate than under

an “equity” and “fairness” standard. Indeed, any lawful sentence (i.e., one that falls

within the parameters set by statute, see State v. Grana, 2009 MT 250, ¶ 11, 351 Mont.

499, 213 P.3d 783) would pass muster. But a sentence certainly can be non-uniform,

inconsistent, unfair, and inequitable without being “clearly inadequate or excessive.” In

sum, while the Court nominally imposes a broad standard of sentence review, it then

allows SRD to apply another standard that is much narrower and more constrained.

¶32    More to the point, while § 46-18-901(4), MCA, allows SRD to adopt rules that

will “expedite its review of sentences,” no provision of Title 46, chapter 18, part 9, MCA,

suggests or permits the “clearly inadequate or excessive” standard adopted by SRD.

Indeed, SRD functions as an arm of this Court, § 46-18-901(1), MCA; Ranta v. State,

1998 MT 95, ¶ 27, 288 Mont. 391, 958 P.2d 670, and this Court has required SRD to

review sentences “on equitable grounds,” Ranta, ¶ 27; State v. Triplett, 2008 MT 360,

¶ 27, 346 Mont. 383, 195 P.3d 819. But yet now we require SRD to somehow conduct

                                        14
that review for equity, Opinion, ¶ 20, without actually reviewing for simple equity,

Opinion, ¶ 21.

¶33    Indeed, the Court’s Opinion is internally inconsistent on this point and, ultimately,

will only engender confusion regarding the appropriate standard that SRD is to apply.

First, as noted, the Court tells us that SRD “was created to review sentences challenged

as being unjust or inequitable,” Opinion, ¶ 18, and that SRD “may take into account

‘equity issues,’ ” Opinion, ¶ 16. Indeed, the Court reaffirms that SRD “review[s] ‘for

equity,’ ” Opinion, ¶ 20 (quoting State v. Stephens, 198 Mont. 140, 145, 645 P.2d 387,

390 (1982)), and that a defendant “can rightly appeal to [SRD’s] judges on equitable

grounds,” Opinion, ¶ 20. But then the Court inexplicably follows all of this with its

holding in ¶ 21 that “[s]imple ‘equity’ cannot serve as the standard of review.”

Obviously, “equity” cannot simultaneously be both part of the calculus and not part of the

calculus—except, perhaps, in the world of quantum physics, cf. Denke v. Shoemaker,

2008 MT 418, ¶ 78 & n. 2, 347 Mont. 322, 198 P.3d 284.

¶34    This Court has stated repeatedly that we will not review a criminal sentence for

equity because that is the responsibility of SRD. 2 Thus, to the extent the Court really


       2
         The cases standing for this proposition date back at least as far as the early 1980s
and are too numerous to list in their entirety here. The following relatively small
sampling will suffice to illustrate the point: State v. Baker, 2008 MT 396, ¶ 15, 347
Mont. 159, 197 P.3d 1001 (“Baker’s contentions that the terms of incarceration violate
statutory sentencing policies are equity issues, review of which lies with the Sentence
Review Division, not this Court.”); State v. Duncan, 2008 MT 148, ¶ 50, 343 Mont. 220,
183 P.3d 111 (“Where, as here, an offender is sentenced to more than one year in prison,
we review that sentence for legality only. In such cases, any challenges to the equity of
the sentence must be brought before the Sentence Review Division.” (citation omitted));
                                         15
means what it says in ¶ 21 (i.e., that “[s]imple ‘equity’ cannot serve as the standard of

review”), which in turn means that the myriad cases which hold that SRD reviews

sentences “for equity” are no longer good law, then two possibilities follow: first, no one

reviews sentences for equity after today’s decision; or second, this Court now must

review sentences for equity. The only reason we have not been doing so is because we




State v. Shults, 2006 MT 100, ¶ 32, 332 Mont. 130, 136 P.3d 507 (“[S]ince Shults’s
sentence is within statutory parameters, his equity argument is not properly before this
Court. Although we will not review the equity of Shults’s sentence, he is not precluded
from petitioning for sentence review.” (citation omitted)); State v. Wardell, 2005 MT
252, ¶ 29, 329 Mont. 9, 122 P.3d 443 (“Although we will not review the equity of
Wardell’s sentence he may petition for sentence review.”); State v. Legg, 2004 MT 26,
¶ 53, 319 Mont. 362, 84 P.3d 648 (“The State responds, and we agree, that this is an issue
concerning the equity of Legg’s sentence, which properly lies with the Sentence Review
Division.”); Vernon Kills On Top v. State, 2000 MT 340, ¶ 74, 303 Mont. 164, 15 P.3d
422 (“To the extent Petitioner’s complaints relate to the equity of his sentence, those
complaints are properly addressed to the Sentence Review Division of this Court.”); State
v. Montoya, 1999 MT 180, ¶ 14, 295 Mont. 288, 983 P.2d 937 (“[A] challenge to the
‘equitability’ of a sentence falls under the authority of the Sentence Review Division
. . . .”); State v. Gordon, 1999 MT 169, ¶ 54, 295 Mont. 183, 983 P.2d 377 (“To the
extent Gordon’s complaints relate to the equity of his sentence, those complaints are
properly addressed to the Sentence Review Division of this Court.”); State v. Baisch,
1998 MT 12, ¶ 15, 287 Mont. 191, 953 P.2d 1070 (“We will not review sentences for
mere inequity or disparity; that task is left to the Sentence Review Division.”); State v.
Romannose, 281 Mont. 84, 94, 931 P.2d 1304, 1311 (1997) (“To the extent that Martin’s
complaints concern the equity of his sentence, those must be addressed to the Sentence
Review Division.”); State v. Moorman, 279 Mont. 330, 337, 928 P.2d 145, 149 (1996)
(“[T]he Sentence Review Division reviews the equity of a sentence.”); State v. Ford, 278
Mont. 353, 363, 926 P.2d 245, 251 (1996) (“We will not review a sentence for mere
inequity; the proper forum for a review of that nature is the Sentence Review Division.”);
State v. DeSalvo, 273 Mont. 343, 350, 903 P.2d 202, 207 (1995) (“[T]he proper channel
for a challenge to the equity of a sentence as opposed to its legality is through the
Sentence Review Division. We have consistently held that we will not review a sentence
on appeal for mere inequity or disparity.” (internal quotation marks and citation
omitted)).
                                        16
assumed that SRD was reviewing for equity. In State v. Herd, 2004 MT 85, ¶ 22, 320

Mont. 490, 87 P.3d 1017, we explained:

       Henceforth, if an offender is eligible for Sentence Review—in other words,
       if the offender is sentenced to one year or more of actual incarceration—
       this Court will . . . review such a sentence for legality only. It will be left in
       these cases to SRD to review sentences for equity. However, if an offender
       is statutorily ineligible for SRD, then this Court will utilize the two-tiered
       approach which we employed prior to the creation of SRD. Upon request,
       we will review such sentences for both legality and abuse of discretion.

Under this logic, it follows that because SRD no longer reviews sentences for equity, as

the Court apparently holds in ¶ 21, that task will now fall back on us. See also Ranta v.

State, 1998 MT 95, ¶ 27, 288 Mont. 391, 958 P.2d 670 (“Were the legislature to abolish

[SRD], the function of reviewing sentences on equitable grounds would thus simply

return to this Court.”).

¶35    In sum, if SRD actually has the broad power of review the Court says it has,

Opinion, ¶ 20, then this power cannot be fully exercised through a standard that limits the

question before SRD to whether the sentence is “clearly inadequate or excessive.” But if

SRD is in fact to be so limited in its review, such that “[s]imple ‘equity’ cannot serve as

the standard of review,” Opinion, ¶ 21, then the following new procedures will have to be

observed: this Court will review a sentence for legality and equity, see Herd, ¶ 22;

Ranta, ¶ 27, and SRD will perform its limited review to determine if the sentence is

“clearly inadequate or excessive.” Correspondingly, our “review for equity” cases have

evidently been overruled.




                                           17
¶36    That being said, even assuming (for the sake of argument) that the components of

the Court’s Opinion and SRD’s Rule 17 could be reconciled in some sensible and

practical way, this entire discussion is largely academic in any event. As stated above,

SRD functions as “an arm of this Court.” Ranta, ¶ 27. Yet, this Court does not monitor

SRD’s decisions to ensure that it is achieving its “primary objective”—however that is

now characterized. There is no right to appeal SRD’s decisions to this Court. See

§ 46-18-905(1), MCA. Thus, if SRD is truly “an arm of this Court,” then surely the left

hand has no idea what the right hand is routinely doing.

¶37    The problem is that the district courts, this Court, and SRD are not provided with

statewide sentencing statistics that would allow a reasoned analysis and determination of

(a) the “uniformity in sentencing” of criminal defendants in this state, and whether such

sentences are consistent, equitable, fair, just, and proportionate, and (b) whether SRD is

achieving its “primary objective”—again, however that is characterized. Even assuming

that these statistics could be piecemealed together from various sources, all parties

concede that this sort of statistical data is not accessible in any comprehensive, readily

available, or easily usable form. These sorts of data and statistics are not routinely

supplied in report form to the district courts, to this Court, or to SRD.

¶38    Accordingly, I am at a loss to understand how uniformity or equity in sentencing

can be achieved. Both uniformity and equity presuppose the ability to make informed

comparisons across the spectrum of data for which consistency, fairness, and

evenhandedness are sought. Neither the district courts nor this Court nor SRD can

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presently make those sorts of informed comparisons. Uniformity and equity, as well as

inadequacy and excessiveness, beg the question: “Compared to what?” Without the

ability to make informed comparisons using a reliable spectrum of statistics and data,

these standards produce little more than wholly subjective, ad hoc determinations.

¶39     Whether sentences are to be reviewed for “uniformity,” taking into account

“equity issues” and “considerations of justice,” with the goal of reducing “disparities in

prisoner sentencing,” or are to be reviewed for “clear inadequacy or excessiveness,” and

if the district courts are expected to sentence with these requirements in mind, then a

readily accessible database should be created to provide statistical information on a

statewide basis for sentences handed down for various crimes and offenders.          This

information should routinely be made available in report form to the district courts, to

this Court, and to SRD. Hopefully, this Court, the Attorney General, the Department of

Corrections—or all three—will pursue funding and legislative authority for the creation

of such a capability in the next legislative session.

¶40    In the meantime, I would grant the Appellate Defender’s Petition for Writ of

Supervisory Control and order SRD to amend its Rule 17 to provide, consistent with our

caselaw and the purposes of SRD, that it will review sentences for “uniformity,” Opinion,

¶ 19, taking into account “equity issues,” “considerations of justice,” “fairness,” and

“consistency,” Opinion, ¶¶ 16, 20. I dissent from the Court’s failure to do so.


                                                        /S/ JAMES C. NELSON


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