NO. 82-457 

IiV THE SUPREME COURT OF THE STATE OF f4O"LaTrlTJA 

1983 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsSCOTT BOLT, 

Defendant and Appellant. 

Appeal fron: District Court of the Fourth Judicial District, 

In and for the County of Lake, The Honorable 

Jack L. Green, Judge presiding. 

Counsel of Record: 

For Ap2ellant: 

Christian, IlcCurdy G Tdold; Donald I<. Peterson, 

Polson, Nontana 

For Resgondent : 

!dike Greely, Attorney General, Helena, Jlontana 

John Frederick, County Attorney, Polson, Montana 

Submitted on Briefs: February 10, 1.983 

Decided: June 2, 1983 

-I_ 

Clerk 
Hr. Justice Frea J. Weber delivered the Opinion of the 

Court. 

Defendant Bolt appeals from tile order of the Fourth 

Judicial District Court, Lake County, imposing a sentence of 

one year in jail for criminal possession of dangerous drugs, 

a inisdemeanor. We affirm. 

The sole issue on appeal is whether, under the circumstances of this case, the defendant was entitled to a deferred imposition of sentence under section 45-9-102(5), 

MCA. That section provides : 

"A person of the age of 21 years or under 

convicted of a first violation under this 

section shall be presumed to be entitled 

to a deferred imposition of sentence." 

Appeiiant was twenty years of age at the time he committed 

the drug-related misdemeanor offense. Less than one gram of 

hashish was found in his possession during a routine search 

following visiting hours at the Swan River Youth Forest 

Camp, where he was serving concurrent five-year sentences 

for two felonies committed earlier in 1982. 

On July 13, 1982, appellant was charged by information 

with the crime of possession of dangerous drugs, a misdemeanor, as specified in section 45-9-102(1), MCA. Defense 

counsel was appointed, and appellant entered a plea of 

guilty on July 21, 1982. A presentence report dated August 

2, 1982, concluded that "under 45-9-102 subsection (5), this 

defendant is presumed to be entitled to a deferred imposition of sentence regardless of the two prior felony convictions. I' 

The District Court Judge initially followed the 

report's recommendation and deferred imposition of sentence 

tor a period of three years, commencing when supervision of 
appellant in prison or on parole ceased. After hearing 

argument on the county attorney's motion for reconsideration, the court vacated the deferred imposition of sentence 

on August 4, 1982, and ordered appellant to serve one year 

imprisonment in the Lake County jail upon his release from 

the state prison. The court concluded that the presumption 

of section 45-9-102(5), MCA, was overcome by defendant's 

prior felony convictions for burglary and criminal mischief. 

Presumption is defined in Rule 301(b), Mont.R.Evid.: 

"A presumption is an assumption of fact 

that the law requires to be made from 

another fact or groups of facts . . ." 

Presumptions are classified in Rule 301(b), Mont.R.Evid., in 

pertinent part: 

"(1) Conclusive presumptions are presumptions that are specifically declared 

conclusive by statute . . . 

"(2) All presumptions, other than conclusive presumptions, are disputable presumptions and may be controverted. A 

disputable presumption may be overcome by 

a preponderance of evidence contrary to 

the presumption. Unless the presumption 

is overcome, the trier of fact must find 

the assumed fact in accordance with the 

presumption. " 

Under the statute and the foregoing definition, defendant 

was entitled to a presumption of deferred imposition of 

sentence because he was twenty years old at the commission 

ot his first offense involving dangerous drugs. 

However, that presumption in favor of deferred sentencing is not conclusive. It is a disputable presumption 

whlch may be overcome by other evidence. State v. Simtob 

(1969), 154 Mont. 286, 291, 462 P.2d 873, 876. 

The parties disagree as to the nature of evidence 

sufficient to overcome the presumption. Appellant contends 
that the statutory language of section 45-9-102(5), MCA, "a 

first violation under this sectionfn restricts the evidence 

that can be considered in rebutting the presumption to 

evidence surrounding the crime at issue or evidence of other 

offenses involving dangerous drugs. Respondent asserts that 

the presumption is to be weighed against all other evidence 

relevant to sentencing, and that the presumption remains 

subject to the sentencing procedures and criteria set forth 

in Title 46, Chapter 18, Parts 1 and 2, MCA. 

The presumption in favor of deferred imposition of 

sentence for young violators "may be controverted by other 

evidence, but unless so contradicted the presumption 

controls." Campus v. State (1971), 157 Mont. 321, 326, 483 

P.2d 275, 278, quoting Simtob, 154 Mont. at 291, 462 P.2d at 

876. If the trial court finds that the presumption has not 

been overcome, then the court's discretion in sentencing a 

young offender is limited by the Dangerous Drug Act to 

deferring the imposition of sentence. State v. Drew (1971), 

158 Mont. 214, 216-17, 490 P.2d 230, 232. 

The question here is whether the sentencing judge 

abused his discretion in concluding that the statutory 

presumption was overcome by evidence that the young violator 

had a felony record and was incarcerated at the time he 

engaged in the subsequent drug-related cr irninal activity. 

By enacting section 45-9-102(5), MCA [formerly section 

54-133(5), R.C.M. 19471 the Legislature "intended to give 

benefit to young violators so that their futures would not 

be destroyed by a felony conviction." Simtob, 154 Mont. at 

294, 462 P.2d at 877 (Harrison, J., dissenting). This benefit cannot be realized where the violator already has a 
felony conviction record that will overshadow any prospective damage that might result from a first drug-related 

conviction. 

In Campus v. State (1971), 157 Mont. 321, 327, 483 

P.2d 275, 279, this Court enumerated four standards that 

must be met in order to overcome the statutory presumption 

in favor of deferred imposition of sentence: 

"First, we interpret it to mean that the 

record itself must disclose the evidence, 

as we held in Simtob. Second, the evidence may be contained either within or 

without the proof of the crime itself. 

Third, the aggravating circumstances 

should be some substantial evidence over 

and above the simple facts of a prima 

facie case. Finally, it is clear that 

this Court will require hearings and a 

record to disclose the aggravating evidence, if there be no express voluntary 

waiver as in this case." 

First, we inquire "whether the record here discloses 

any facts to overcome the statutory presumption contained in 

the Dangerous Drug Act that defendant is entitled to a 

deferred imposition of sentence." Simtob, 154 Mont. at 291, 

462 P.2d at 876. The record discloses that appellant was an 

inmate at the Swan River Youth Forest Camp at the time he 

engaged in the illicit drug activity and that his prior 

felony convictions related to two separate incidents of 

forced entry and vandalism. Neither of these facts was controverted. This evidence is disclosed from the record and 

is contained without proof of the crime itself. Thus, the 

first two standards from Campus are satisfied. 

The next inquiry is whether these aggravating circumstances constitute substantial evidence over and above the 

simple facts of the prima facie case. A judge's belief that 

a defendant lacked candor in responding to questions from 
the trial court is insufficient to classify it as one of 

those aggravating circumstances necessary to overcome the 

presumption for giving a deferred sentence. State v. Burris 

(1975), 168 Mont. 195, 198, 542 P.2d 1223, 1225. Nor are 

affidavits accusing the defendant of prior dealings in drugs 

adequate aggravating evidence. State v. Harney (1972), 160 

Mont. 55, 62, 499 P.2d 802, 805-06. Here, unlike in Burris 

and Barney, the aggravating evidence of defendant's incarceration at the time of the offense and his prior felony 

convictions constitute substantial evidence over and above 

the simple facts of a prima facie case of possession of 

dangerous drugs. 

Last, the appellant had opportunity to rebut the 

aggravating evidence contained in the parole officer's presentence report at the sentencing hearing and at the hearing 

on respondent's motion for reconsideration. He failed to do 

SO. 

All four Campus criteria have been met. We do not 

hold that the rebutting evidence should be restricted to 

evidence relating to drug activities. Neither the statutory 

language nor the case law contains such a restriction. This 

is a case of a convicted felon engaging in subsequent 

criminal conduct during confinement. The District Court did 

nor abuse its discretion in determining that these circumstances warranted imposition of sentence. 

For the foregoing reasons, the sentence is affirmed. 
We concur: 

'[\J,A-- I2. /I Justice