                                  No.    13030

       TN THE SUPREME COURT OF THE STATE OF M N A A
                                             OTN

                                        1975



THE STATE O MONTANA,
           F

                          P l a i n t i f f and Respondent,



ROBERT A. RURRIS,

                          Defendant and A p p e l l a n t .



Appeal from:    D i s t r i c t Court o f t h e S e v e n t e e n t h J u d i c i a l D i s t r i c t ,
                Honorable Thomas Dignan, Judge p r e s i d i n g .

Counsel o f Record:

     For Appellant :

          Frank Altman, Havre, Montana

     F o r Respondent :

          Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena,
           Montana
          Donald D. Cole, County A t t o r n e y , M a l t a , Montana

           Submitted on t h e r e c o r d



                                                 Submitted:          September 2 3 , 1975

                                                     Decided :     9CT 1 7 1975
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
        Defendant pled guilty before the district court, Phillips
County, of criminal possession of dangerous drugs and appeals only
from the sentence.
        Defendant, after his plea of guilty, was convicted of
the criminal possession of dangerous drugs (an amended charge of
less than 60 grams of marihuana), a misdemeanor.   The previous
charge had been possession of approximately 129 grams of marihuana
which was amended to the less than 60 grams, following defendant's
withdrawal of a motion to suppress.
        Prior to the entering of plea and the sentencing the
trial judge had received and reviewed a presentence report favor-
able to defendant.   It indicated that, other than some traffic
violations, defendant had no prior criminal record.   He was al-
most 19 years old and lived with his father.   He was a graduate
of Havre High School with an academic record of a "B" average.
At the time of entering his plea of guilty, the trial judge made
certain inquiries of defendant as to where he got the marihuana
and defendant answered that it was left in his car by two hitch-
hikers who left his car when he stopped at a service station.
This exchange occurred:
       "Q. Do you mean to tell me that they left you
       this marihuana in the car? A. Well, I went into
       Wiers Texaco.
        "Q. I'm just asking you--Do you expect me to believe
        that they walked off and left this marihuana in
        your car? A. I don't know what the deal is. I
        haven't seen them since.
        "Q. I know, but you are asking me to believe that
        they left this marihuana in the car, I take it. A.
        Yes, I am.
        "BY THE COURT: Well I don't believe you. The court
        is going to give you six months and a fine of $500.00
        and I'll suspend the $600.00--or the six months, but
        you've got to pay the $500.00. You're going to
        learn. And that's because you stood up here and
        lied to me."
        After the fine was paid defendant was released and
this appeal followed.
        The issue before this Court is whether under the pro-
visions of section 54-133, R.C.M. 1947, the defendant, a
person under the age of 21 years, upon his first conviction
for possession of dangerous drugs is presumed to be entitled
to a deferred sentence?
        Two prior Montana cases must be considered controlling
in this case.   State v. Simtob, 154 Mont. 286, 292, 462 P.2d
873; Campus v. State, 157 Mont. 321, 327, 483 P.2d 275.    In
Simtob, speaking to the statutory presumption of section 54-
133 for the first time, this Court said:
       " * * * we are dealing with a statutory presump-
       tion on sentencing that requires evidence to
       overcome before any discretion on the part of the
       sentencing judge is involved * * *."
       The Court then went on to hold:
       " * * * Additionally, this Court has heretofore
       made it clear that the discretion of the sentenc-
       ing judge must be based on his view of the evidence
       presented in open court showing circumstances in
       aggrevation or mitigation of punishment and may
       not be exercised on the basis of unsworn represen-
       tation * * *."
        In Campus this Court further clarified what it would take
to overcome the presumption of a deferred sentence.   There the
Court stated:
       " * * * 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 cir-
       cumstances 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
       agqravating evidence, if there be no express
       voluntary waiver in this case. While these are
       general basic rules, necessarily we must deter-
       mine the sufficiency of aggravation on a case-
       by-case basis."  (Emphasis supplied.)
       Taking the facts of the instant case and looking to the
criteria set forth in Campus, we must determine whether or not
the trial judge's belief that the defendant lied to him when he
asked where defendant got the marihuana, is the type of aggra-
vating evidence as to remove the case from the presumption for
the giving of a deferred sentence.    We think not.
        Here, there is nothing to indicate in the crime itself
"aggravating circumstances".     Further, no evidentiary hearing was
held nor record made of such circumstances. We can understand
and agree with the trial court's being disturbed when he believed,
as he most certainly had a right to in this case, that defendant's
testimony was less than candid.    However, as was noted in Simtob,
the legislature intended to give benefit to young violators so
that their futures would not be destroyed or endangered by a drug
conviction.     Here we have a nearly 19 year old pleading guilty
to his first offense.    There is no evidence in the record indicat-
ing prior drug activities, (Simtob), nor does it appear that he
brought it from a foreign country, (Campus).    Defendant's lack of
candor before the trial court was not, in our opinion, sufficient
to classify it as one of those aggravating circumstances necessary
to overcome the presumption of a deferred sentence.
        Defendant was given a suspended sentence and a $500 fine.
This sentence, though not requiring defendant's incarceration,
remains a criminal conviction.    State v. Drew, 158 Mont. 214, 217,
490 P.2d 230.    Such a sentence would, under the circumstances,
defeat the purpose of the deferred imposition of sentence.    This
Court in Drew said:
       "The passage of section 95-2207, R.C.M. 1947,
       demonstrates the intent of the legislature in
       regard to deferred imposition of sentence. If
       sentence were imposed or executed in any part,
       then the end advantage to the entire concept
       of the deferred sentence could not be attained
       and section 95-2207 would become inoperative."
       Here, the deferred imposition of sentence will afford
d e f e n d a n t a n o p p o r t u n i t y t o be f r e e on good b e h a v i o r f o r a

s t a t e d p e r i o d of t i m e and a t t h e end of such p e r i o d he c a n move

t h e c o u r t f o r p e r m i s s i o n t o withdraw h i s g u i l t y p l e a and have

t h e c h a r g e s a g a i n s t him d i s m i s s e d .

             Judgment of t h e d i s t r i c t c o u r t i s v a c a t e d and t h e c a u s e

remanded w i t h d i r e c t i o n s t o i n p o s e a d e f e r r e d s e n t e n c e .




   Justices
Mr.   J u s t i c e Wesley C a s t l e s d i s s e n t i n g :

              I dissent.          ~ e f e n d a n'ts "lack of candor" a s t h e
m a j o r i t y opinion c a l l s i t , i s an obvious o u t r i g h t l i e and a
s e n t e n c i n g judge should n o t be r e q u i r e d t o s i t i n a vacuum.
The s e n t e n c i n g judge should be t h e s o l e judge of t h e v e r a c i t y
of t h e w i t n e s s , i n t h i s c a s e t h e d e f e n d a n t .   I would a f f i r m .
