State v. Lorash
| Decision Date | 07 August 1989 |
| Docket Number | No. 88-585,88-585 |
| Citation | 238 Mont. 345,777 P.2d 884 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. Robert LORASH, Defendant and Appellant. |
| Court | Montana Supreme Court |
Allen Beck, Billings, for defendant and appellant.
Marc Racicot, Atty. Gen., Paul Johnson, Asst. Atty. Gen., Helena, Harold Hanser, County Atty., Brent Brooks, Deputy County Atty., Billings, for plaintiff and respondent.
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 Sec. 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 Sec. 46-18-201(6), MCA, which provides in part:
[I]mposition 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 Sec. 46-18-201(6), MCA, is violative of Article II, 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 Sec. 46-18-201(6), MCA. The court responded that the legislature, in passing Sec. 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 Sec. 46-18-204, MCA.
This Court has held that the proper standard of review by this Court is:
[T]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,...
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...beyond a reasonable doubt.'" State v. Renee, 1999 MT 135, ¶ 21, 294 Mont. 527, ¶ 21, 983 P.2d 893, ¶ 21 (citing State v. Lorash (1989), 238 Mont. 345, 347, 777 P.2d 884, 886, quoting T & W Chevrolet v. Darvial (1982), 196 Mont. 287, 292, 641 P.2d 1368, 1370). Thus, the party challenging a s......
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...an alleged constitutional infirmity in a legislative enactment rests upon the party raising the challenge." State v. Lorash (1989), 238 Mont. 345, 347, 777 P.2d 884, 886. ¶ 14 The Finstads allege that the portion of § 27-1-221(6), MCA, which states that an award of punitive damages must be ......
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...eligible for expungement. Finally, the State asserts that in Brander we did not consider the effect of our decision in State v. Lorash (1989), 238 Mont. 345, 777 P.2d 884, and did not expressly consider whether the expungement provision of § 61-8-714(5), MCA (1981), created a substantive ri......
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...every intendment in its favor will be made unless its unconstitutionality appears beyond a reasonable doubt.'" State v. Lorash (1989), 238 Mont. 345, 347, 777 P.2d 884, 886, quoting T & W Chevrolet v. Darvial (1982), 196 Mont. 287, 292, 641 P.2d 1368, 1370. Renee, as the party raising the c......