State v. Simtob

• Decision Date: 12 December 1969
• Docket Number: No. 11729,11729
• Citation: 462 P.2d 873,154 Mont. 286
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Solomon SIMTOB, Defendant and Appellant.
• Court: Montana Supreme Court

Page 873

462 P.2d 873

154 Mont. 286

The STATE of Montana, Plaintiff and Respondent, v. Solomon SIMTOB, Defendant and Appellant.

No. 11729.

Supreme Court of Montana.

Submitted Dec. 8, 1969.

Decided Dec. 12, 1969.

Leif B. Erickson, argued, Helena, for defendant and appellant.

Robert L. Woodahl, Atty. Gen., Joseph Gerbase and J. C. Weingartner, Asst. Attys. Gen., argued, Thomas Dowling, County Atty., Helena, for plaintiff-respondent.

HASWELL, Justice.

Defendant Solomon Simtob, age 21, plead guilty to a charge of criminal possession of dangerous drugs (section 54-133, R.C.M. 1947) in the district court of Lewis and Clark County. Following a presentence hearing, he was sentenced to a term of 3 years imprisonment in the state prison. Defendant appeals only from the sentence imposed.

There are two controlling issues upon this appeal: (1) whether an appeal may be taken from the sentence itself, and (2) whether the prison sentence imposed here violates the statutory presumption that defendant is entitled to deferred imposition of sentence.

We are confronted with the first issue at the outset. The state contends there is not appeal on the merits from a plea of guilty, that the district judge so advised the defendant, and defendant's remedy, if any, lies with the Sentence Review Division rather than with this Court.

We cannot subscribe to this contention by the state under the circumstances of this case. The Sentence Review Division, which is an arm of this Court, is designated to provide appellate review of legal sentences. See sections 95-2501 to 95-2504 inclusive, R.C.M.1947. It provides a method by which a defendant can secure review of a sentence legally imposed upon him which he contends is unjust or inequitable. The Sentence Review Division does not reach or review errors of law resulting in an illegal sentence.

In the instant case, the thrust of defendant's complaint is that an illegal sentence has been imposed upon him. He contends that as a first offender of the age of 21 he is presumptively entitled to a deferred imposition of sentence and probation, rather than imprisonment in the state prison; that there is a total absence of evidence in the record to overcome this presumption. The Montana Dangerous Drug Act is unique in that the legislature has established a disputable statutory presumption in regard to sentencing. Being disputable, it requires evidence to overcome. Section 93-1301-7, R.C.M.1947. Whether such contradictory evidence is present in the instant case is clearly a legal question properly addressed to this Court on appeal as an order after final judgment of conviction which affects the substantial rights of the defendant. Section 95-2404 (a), R.C.M.1947.

However, the principal issue upon this appeal concerns the imposition of a prison sentence on defendant in the face of a statutory presumption established by the 1969 legislature which entitles a person 21 years or under convicted of a first violation of the Dangerous Drug Act to a deferred imposition of sentence. Section 54-133, R.C.M.1947, provides in pertinent part:

'(b) * * * Any 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.' (Emphasis added.)

It should be also noted that the same presumption applies to a first conviction for the criminal sale of dangerous drugs (section 54-132(b), R.C.M.1947), and although this section is not directly involved in this appeal, this fact should nonetheless be borne in mind in reviewing the evidence in this case.

There is no dispute concerning the fact that defendant entered a plea of guilty to the charge of criminal possession of dangerous drugs. Likewise it is undisputed that defendant has no prior conviction under the Dangerous Drug Act, nor any other prior criminal record whatsoever. It is also undisputed that defendant is 21 years of age, therefore our inquiry must be directed to a determination of whether there was any evidence before the trial court, and therefore in the record before this Court, to overcome the statutory presumption, heretofore noted, and thus authorize the imposition of a prison sentence on this defendant.

On August 5, 1969, defendant entered his plea of guilty, whereupon the trial court ordered a presentence investigation by the county attorney on behalf of the state and the public defender on behalf of defendant. The presentence hearing in aggravation or mitigation of punishment was held 2 days later.

The record indicates the following facts were before the trial court.

On August 3, 1969, defendant and a friend made plans to go to Missoula for the purpose of purchasing drugs. The next day the two were given a ride to the outskirts of Helena by another friend from where they were to hitchhike to Missoula. This second friend gave defendant $5 and asked defendant to purchase drugs for him. Defendant agreed, the money was exchanged, and an agreement was made to meet at Hill Park in Helena upon defendant's return from Missoula. The transfer of drugs was never completed because of the intervention of the authorities. Assuming, arguendo, that under the provisions of section 54-129(k), R.C.M.1947, this transaction constitutes a criminal sale of dangerous drugs, we note that the legislature has established the identical statutory presumption for a first criminal sale of dangerous drugs as for a first offense of possession of dangerous drugs. Defendant was not charged with criminal sale, nor did he plead guilty to that charge.

Testimony of defendant's companion on this trip indicated that upon reaching Missoula there was apparently some difficulty in finding a place to purchase drugs, but that defendant did succeed in purchasing 31 1/2 'lids' of LSD and a small quantity of marihuana. There was further testimony that defendant purchased some unidentified white tablets, but the record does not indicate whether this was part of the same transaction or what the white tablets were.

There was no testimony concerning whether defendant intended to use the drugs purchased on August 4 himself or whether he intended to sell or furnish them to others, except with regard to the $5 transaction with his friend, heretofore noted.

After the purchase of the drugs in Missoula, defendant and his companion hitchhiked back to Helena where they were arrested near the city limits by city police. The drugs were confiscated and later identified by chemical analysis. Defendant was placed in the Lewis and Clark County jail and thereafter charged. Defendant did not take the stand in his own behalf, ostensibly because nothing except what he had plead guilty to was presented at the hearing.

At the conclusion of the presentence hearing, the trial court made the following remarks:

'It appears to this Court from the uncontroverted and undisputed testimony here that you went over to Missoula and acquired these drugs, the possession of which you plead guilty to, for the purpose of distributing them I suppose in this community, and to me this undisputed testimony and undenied certainly completely eradicates the matter of the presumption with the statute which affords anyone who is age 21 or younger the presumption that a suspended or deferred sentence should be imposed.

'Also this evidence which is undisputed before me indicates that this is not your first experience in this sort of thing, and I feel that you should be and you are sentenced to imprisonment in the State Prison at Deer Lodge, Montana, at hard labor for a period of three years, and you're remanded to the custody of the sheriff for the immediate execution of this sentence. * * *.' (Emphasis added.)

The presumption with which we are here dealing is a kind of indirect evidence. Section 93-1301-1, R.C.M.1947. It is 'a deduction which the law expressly directs to be made from particular facts'. Section 93-1301-3, R.C.M.1947. The presumption here is a disputable presumption which may be controverted by other evidence, but unless so contradicted the presumption controls. Section 93-1301-7, R.C.M.1947. Our inquiry then is 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. Here the record discloses a total absence of any such evidence.

Nonetheless the state insists that there is evidence in the record sufficient to overcome the legislative presumption. According to the state, defendant's prior experience in purchasing dangerous drugs, his purchase of a large quantity of dangerous drugs on August 4, and his purchase of dangerous drugs for others on that date furnish the rebutting evidence. There is no direct evidence in the record that defendant had any prior experience in purchasing dangerous drugs and the state has been unable to show us where such evidence appears. Likewise we fail to see how defendant's purchase of 31 1/2 'lids' of LSD and a small quantity of marihuana on August 4 furnishes the basis for an inference of defendant's prior experience in purchasing dangerous drugs. The same can be said for the alleged but unproven purchase of $5 worth of drugs by defendant for his friend at the latter's request.

In any event, the state argues, the sentencing judge is not limited by evidence appearing in the record in pronouncing sentence but may use his own personal and undisclosed knowledge of any relevant information. The state contends that sentencing in a criminal case is a discretionary act of the sentencing judge, citing Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337. It need only be recognized that here we are dealing with a statutory presumption on sentencing that requires evidence to overcome before any discretion on the part of the sentencing judge is involved, such presumption being conspicuous by its absence in Williams, supra. Additionally, this Court...