NO. 82-457 IiVTHE SUPREME COURT OF THE STATE OF f4O"LaTrlTJA 1983

STATE OFMONTANA,Plaintiff and Respondent,


### -vsSCOTT BOLT, Defendant and Appellant.

Appeal fron: DistrictCourt of theFourth JudicialDistrict, Inand for theCounty 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_ ClerkHr. Justice Frea J. Weber delivered the Opinion of the Court.Defendant Bolt appeals from tile order of the Fourth JudicialDistrictCourt, Lake County, imposing a sentenceof

one year injail for criminalpossession of dangerous drugs,

a inisdemeanor. We affirm. The soleissueon appeal 

### iswhether, under the circumstances of this case, the defendant was entitled to a deferred imposition of sentence under section 45-9-102(5), MCA. That sectionprovides: "A person of the age of 21years or under convicted of a firstviolation under this section shall be presumed to be entitled toa 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 inhispossession during a routine search following visiting hours at the Swan River Youth Forest Camp, where he was serving concurrent five-year sentences for two feloniescommitted earlier in 1982. On July 13, 1982, appellantwas 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 threeyears, 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 criminalmischief. Presumption isdefined in Rule 301(b), Mont.R.Evid.: "A 

### presumption is an assumption of fact that the law requires to be made from another factor groups of facts

# . .

# ." Presumptions are classified inRule 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 overcomeby 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 firstoffense involving dangerousdrugs. 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), 154Mont. 286, 291, 462P.2d 873, 876. The parties disagree as to the nature of evidence sufficient to overcome the presumption. Appellant contendsthat the statutorylanguage of section 45-9-102(5), MCA, "a firstviolation under thissectionfnrestrictsthe evidence that can be considered in rebutting the presumption to evidence surrounding thecrime atissueor evidence of other offenses involvingdangerous drugs. Respondent asserts that the presumption 

### is tobe weighed against 

### all other evidence relevant to sentencing, and that the presumption remains subject to the sentencing procedures and criteria 

### set forth inTitle46, Chapter 18, Parts 1and 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, 154Mont. at291, 462 P.2d at 876. If the trialcourt finds that thepresumption 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. Statev. 

### Drew (1971), 158Mont. 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 overcomeby evidence that theyoung violator had 

### a felony record and 

### was incarcerated at the 

### time he engaged in the subsequentdrug-related cr irninal activity. By enacting section45-9-102(5), MCA [formerlysection 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 felonyconviction." Simtob, 154Mont. at 294, 462 P.2d at877 (Harrison, J., dissenting). Thisbenefit cannot be realized where the violator already has 

### afelony 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 infavor of deferred impositionof sentence: "First, 

### we interpret it tomean that the record itself must disclose theevidence, 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 asinthiscase." First, we inquire "whether the record here discloses any factstoovercome the statutorypresumption contained in the Dangerous Drug Act that defendant 

### is entitled to a deferred imposition of sentence." Simtob, 154Mont. at291, 462 P.2d at876. The record discloses that appellantwas an inmate atthe 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 entryand vandalism. Neither of these factswas controverted. This evidence 

### is disclosed from the record and 

### is contained without proof of the crime itself. Thus, the firsttwo standardsfrom Campus aresatisfied. The next inquiry is whether these aggravating circumstances constitute substantial evidence over and above the simple factsof theprima faciecase. A judge's belief that

a defendant lacked candor in responding to questions fromthe trial court 

### is insufficient to classify it as one of those aggravating circumstances necessary to overcome the presumption for giving 

### a deferred sentence. Statev. Burris (1975), 168 Mont. 195, 198, 542 P.2d 1223, 1225. Nor are affidavitsaccusing thedefendant of prior dealingsindrugs adequate aggravating evidence. Statev. Harney (1972), 160 Mont. 55, 62, 499 P.2d 802, 805-06. Here, unlike inBurris 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 dangerousdrugs. Last, the appellant had opportunity to rebut the aggravating evidence contained in the parole officer's presentencereport atthe sentencing hearing and atthehearing

on respondent's motion for reconsideration. He failed todo
SO. All four Campus criteria have been 

### met. We do not hold that the rebutting evidence should be restricted to evidence relating todrug 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 conductduring confinement. The DistrictCourt did
nor abuse its discretion in determining that these circumstanceswarranted imposition of sentence. For the foregoing reasons, the sentence is affirmed.We 

### concur:



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