NO. 88-585 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vsROBERT LORASH, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Allen Beck, Billings, Montana 

For Respondent: 

Hon. Marc Racicot, Attorney General, Helena, Montana 

Paul Johnson, Asst. Atty. General, Helena 

Harold Hanser, County Attorney, Billings, Montana 

Brent Brooks, Deputy County Attorney, Billings 

Filed: 

Submitted on Briefs: May 18, 1989 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from the District Court of the 

Thirteenth Judicial District, Yellowstone County, State of 

Montana, the Honorable G. Todd Baugh presiding. The 

appellant appeals the imposition of his two-year suspended 

prison sentence for criminal mischief. We affirm. 

In June of 1987, the appellant, Robert C. Lorash, 

(Lorash) and his companion, Dennis S. Hegg, were driving a 

pickup truck which was towing a large trailer filled with 

trees and debris. At the intersection of 24th Street West 

and Broadwater Avenue in Billings, Montana, they became 

involved in altercation with Mark Richardson. Lorash and 

Hegg followed Richardson to a Billings residence where 

Richardson exited his car and went inside. Lorash and Hegg 

then got out of the pickup and proceeded to hit and kick 

Richardson's car causing over $1,800 in damage. 

Several months later, on September 4, 1987, the State 

filed its affidavit and motion for leave to file information 

with the District Court, basing felony jurisdiction on the 

provisions of § 45-6-101, MCA, which provides: 

(1) A person commits the offense of 

criminal mischief if he knowingly or 

purposely: 

(a) injures, damages, or destroys any 

property of another or public property 

without consent; 

(3) . . . If the offender commits the 

offense of criminal mischief and causes 

pecuniary loss in excess of $300, . . . he shall be fined an amount not to exceed 

$50,000 or be imprisoned in the state 
prison for any term not to exceed 10 

years, or both. 

On July 25, 1988, Lorash plead guilty to the charge. A 

presentence investigation report was then prepared which 

noted that on October 10, 1973, Lorash had been convicted of 

possession of marijuana, and given a three-year deferred 

sentence. The presentence investigation report recommended: 

Due to the fact the subject has a 

previous felony and sentencing was 

deferred, the sentence must be suspended 

under MCA 46-18-201 (6) . 

After receiving Lorash's guilty plea to the criminal 

mischief charge, the District Court sentenced the appellant 

to two years in the Montana State Prison, but suspended the 

sentence and placed him on probation for two years. At 

sentencing, the court noted that the reason the appellant did 

not receive a deferred sentence as did his co-actor, Hegg, 

was because of the language in S 46-18-201(6), MCA, which 

provides in part: 

[Ilmposition of sentence in a felony case 

may not be deferred in the case of a 

defendant who has been convicted of a 

felony on a prior occasion whether or not 

the sentence was imposed, imposition of 

the sentence was deferred, or execution 

of the sentence was suspended. 

The issue on appeal is whether § 46-18-201(6), MCA, is 

violative of Article 11, section 17 of the Montana 

Constitution, which provides that no person shall be deprived 

of life, liberty or property without due process of law. 

At the time of sentencing, Lorash, through counsel, 

argued that he should receive a deferred imposition of 

sentence despite his prior felony conviction and the 

limitation on deferred sentences imposed by S 46-18-201(6), 

MCA. The court responded that the legislature, in passing 
S 46-18-201(6), MCA, had limited its sentencing options since 

that statute requires there shall be no deferred sentence 

once a previous deferred sentence has been imposed. 

We note that Lorash, through counsel, agreed at his 

sentencing hearing that he had received a deferred sentence 

in 1973 and that he did not attempt to have the 1973 

conviction dismissed, or expunged, pursuant to S 46-18-204, 

MCA . This Court has held that the proper standard of review 

by this Court is: 

[TI he constitutionality of a legislative 

enactment is prima facie presumed, and 

every intendment in its favor will be 

made unless its unconstitutionality 

appears beyond a reasonable doubt. 

T & W Chevrolet v. Darvial (1982), 196 Mont. 287, 292, 641 

P.2d 1368, 1370. We have also held that the burden of 

demonstrating an alleged constitutional infirmity in a 

legislative enactment rests upon the party raising the 

challenge. Matter of Kujath's Estate (1976), 169 Mont. 128, 

130, 545 P.2d 662, 663; State v. Henrich (1973), 162 Mont. 

114, 121, 509 P.2d 288, 292. 

Deferral of a sentence is a significant option given to 

the sentencing judge. It offers the possibility that an 

offender may later obtain a dismissal of the charges that 

have been filed against him. At the time the information was 

filed in this case, September 4, 1987, Lorash was informed 

that if he had served that sentence with good behavior the 

charges could be dismissed. Section 46-18-204, MCA (1985), 

states: 

Whenever the court has deferred the 

imposition of sentence and after 

termination of the time period during 

which imposition of sentence has been 

deferred, upon motion of the court, the 
defendant, or the defendant's attorney, 

the court may allow the defendant to 

withdraw his plea of guilty or may strike 

the verdict of guilty from the record and 

order that the charge or charges against 

him be dismissed. 

Shortly after Lorash's sentencing, an amendment was 

made to 5 46-18-204, MCA, which became law on October 1, 

Upon dismissal of the charges, the court 

shall send an order directing the 

department of justice to expunge the 

defendant s record. The order must 

adequately identify the defendant, such 

as by sex, race, date of birth, and the 

current status of the charges to be 

expunged. 

This amendment was repealed on April 6, 1989, and replaced by 

the following language: 

A copy of the order of dismissal must be 

sent to the prosecutor and the department 

of justice, accompanied by a form 

prepared by the department of justice and 

containing identifying information about 

the defendant. After the charge is 

dismissed all records and data relating 

to the charge are confidential criminal 

justice information as defined in 

44-5-103 and public access to the 

information can only be obtained by 

district court order upon good cause 

shown. 

It should be noted that under 1989 Mont. Laws, chapter 

463, all information concerning a charge that has been 

dismissed under the first sentence of 5 46-18-204, MCA, 

becomes confidential criminal justice information 

(5 44-5-103(3), MCA), and dissemination is thereby limited to 

criminal justice agencies. Section 44-5-303, MCA. The 

definition of criminal justice agency includes "any court 

with criminal jurisdiction, " S 44-5-103 (7) (a) , MCA. Courts 
with criminal jurisdiction are therefore entitled to receive 

and consider information concerning prior charges which are 

dismissed under § 46-18-204, MCA. 

Here Lorash's argument attacking the constitutionality 

of § 46-18-201(6), MCA, is moot because the 1987 amendment to 

§ 46-18-204, MCA, was stricken and became ineffective on 

April 6, 1989, by approval of Chapter 463, Mont. Laws. 

(1989). 

We find that Lorash has not sustained his heavy burden 

of demonstrating that $j 46-18-201 (6) , MCA , is 

unconstitutional beyond a reasonable doubt, and for that 

reason, and all the reasons stated above, we uphold the 

constitutionality of § 46-18-201(6), MCA. 

The decision of the District Court is affirmed.