March 18 2008
DA 07-0331
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 96N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JAMES EDWARD SULLIVAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and For the County of Missoula, Cause No. DC-2001-310
Honorable Edward P. McLean, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr., Public Defender, Missoula, Montana
For Appellee:
Hon. Mike McGrath, Attorney General; Mark W. Mattioli, Assistant
Attorney General, Helena, Montana
Fred R. Van Valkenburg, Missoula County Attorney; Suzy Boylan, Deputy
County Attorney, Missoula, Montana
Submitted on Briefs: January 16, 2008
Decided: March 18, 2008
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section 1, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court cause number and disposition shall be included in this Court’s
quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.
¶2 James Sullivan appeals a judgment of the Fourth Judicial District Court, Missoula
County, revoking his suspended sentence.
¶3 In 2001, the State charged Sullivan with three criminal counts, including Felony
Assault with a Weapon. He later pled guilty to the assault charge and, in exchange, the State
dismissed the other charges and recommended a seven-year suspended sentence. The
District Court sentenced Sullivan to seven years at Montana State Prison with all seven years
suspended.
¶4 The State filed a petition to revoke Sullivan’s sentence in November 2002, and
Sullivan admitted to the violations. The District Court revoked his probation and committed
him to the Department of Corrections (DOC) for seven years with a recommendation that
DOC place him at Connection Corrections.
¶5 In March 2007, the State filed another petition to revoke his suspended sentence, and
Sullivan admitted to the violations. The District Court sentenced Sullivan to DOC for three
years with a recommendation that DOC place him at Montana State Prison. Sullivan now
appeals, arguing that the placement recommendation exceeded the District Court’s statutory
authority.
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¶6 We review a sentence only for legality to determine if it is within the statutory
parameters. State v. Micklon, 2003 MT 45, ¶ 5, 314 Mont. 291, ¶ 5, 65 P.3d 559, ¶ 5.
¶7 A defendant must be sentenced under the laws in effect at the time of his offense.
State v. Tracy, 2005 MT 128, ¶ 16, 327 Mont. 220, ¶ 16, 113 P.3d 297, ¶ 16. At the time
Sullivan committed this offense, the applicable sentencing statute permitted a court to
commit a defendant to DOC “with a recommendation for placement in an appropriate
correctional facility or program.” Section 46-18-201(3)(d)(i) (1999). The 1999 statutes also
provided that a district court may impose, upon revocation, the original sentence or a lesser
sentence. Section 46-18-203(7)(a)(iii) (1999).
¶8 The District Court revoked Sullivan’s suspended sentence and sentenced him in
accordance with the laws in effect when he committed the offense. Section 46-18-
201(3)(d)(i) (1999) permitted the District Court to make a recommendation for Sullivan’s
placement, and that is precisely what the District Court did when it recommended that DOC
place Sullivan at Montana State Prison. The DOC was not obligated to follow the
recommendation. In addition, the sentence of three years was no greater than the original
sentence. Therefore, the District Court imposed a legal sentence on Sullivan when it revoked
his suspended sentence.
¶9 Affirmed.
/S/ JOHN WARNER
We Concur:
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/S/ JIM RICE
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
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