State v. Benjamin , 2017 MT 219N ( 2017 )

09/05/2017
DA 15-0501
Case Number: DA 15-0501
IN THE SUPREME COURT OF THE STATE OF MONTANA
2017 MT 219N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
MARK ALAN BENJAMIN,
Defendant and Appellant.
APPEAL FROM: District Court of the Ninth Judicial District,
In and For the County of Glacier, Cause No. DC 13-68
Honorable David Cybulski, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad M. Wright, Chief Appellate Defender, Chad R. Vanisko, Assistant
Appellate Defender, Helena, Montana
For Appellee:
Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
Assistant Attorney General, Helena, Montana
Terryl Matt, Interim Glacier County Attorney, Cut Bank, Montana
Submitted on Briefs: June 14, 2017
Decided: September 5, 2017
Filed:
__________________________________________
Clerk
Justice Laurie McKinnon delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Mark Alan Benjamin (Benjamin) appeals from a judgment issued by the Ninth
Judicial District Court, Glacier County. We affirm.
¶3 Benjamin pleaded guilty to felony theft of property by embezzlement and admitted
to stealing more than $10,000 in grain from his employer, David Broberg (Broberg), over
a period of years. Benjamin used the proceeds from selling the grain to purchase cars and
snowmobiles, which he would then resell, and wrote checks for cash. On March 3, 2015,
the District Court held a restitution and sentencing hearing and ordered Benjamin pay
restitution totaling $476,179.66 to Broberg. Towards that end, the District Court ordered
Benjamin transfer four assets to Broberg: a patronage account held by Benjamin at
Cenex Harvest States; $1,248.11 seized from Benjamin’s personal checking account at
Stockman Bank; a debt owed to Benjamin by Kevin Racine; and a blue, 1996 Chevrolet
pickup truck. Benjamin, through counsel, agreed to the transfers and requested he
receive credit toward the restitution amount. Accordingly, the District Court’s judgment
specified that the $1,248.11, Kevin Racine’s debt, and one-half of the value of the blue,
1996 Chevrolet pickup truck be credited toward the restitution amount. On June 9, 2015,
the District Court held a continuation of the restitution and sentencing hearing to discuss
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Benjamin’s status as a persistent felony offender. During this subsequent hearing,
Benjamin stipulated to the amount of restitution and confirmed with the District Court
that the transfers “stay the same.” On appeal, Benjamin contends the District Court
lacked authority to transfer the four assets.
¶4 The issue raised on appeal is whether Benjamin waived his right to appeal his
sentence by agreeing to transfer the four assets to Broberg instead of objecting to it.1 We
generally refuse to review on appeal an issue which a party has failed to object to at the
trial court. State v. Walker, 2007 MT 205, ¶ 13, 338 Mont. 529, 167 P.3d 879; citing
State v. Kotwicki, 2007 MT 17, ¶ 8, 335 Mont. 344, 151 P.3d 892. There is a narrow
exception to this general rule which allows appellate review of sentences that are
allegedly illegal or exceed statutory mandates even if no objection is made at the time of
sentencing. State v. Lenihan, 184 Mont. 338, 343, 602 P.2d 997, 1000 (1979). This
exception does not apply where a defendant “actively acquiesced or participated in the
imposition of a condition of sentence.” Walker, ¶ 14; citing State v. Micklon, 2003 MT
45, ¶ 10, 314 Mont. 291, 65 P.3d 559.
¶5 Here, Benjamin contends that the District Court lacked authority to order the asset
transfers. However, Benjamin did not object at the restitution and sentencing hearing.
Benjamin agreed to transfer each of the four assets to Broberg as long as he got “credit
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Additionally, Benjamin argues that the District Court exceeded its authority by imposing
conditions on a suspended sentence. However, the District Court did not suspend any portion of
Benjamin’s sentence. The challenged conditions upon a non-existent probationary term or
suspension will have no effect on Benjamin. Section 46-20-701(2), MCA, provides, “Any error,
defect, irregularity, or variance that does not affect substantial rights must be disregarded.”
Accordingly, there is no need to amend Benjamin’s judgment, which, by its terms, does not
provide a period of suspension that would implicate the challenged conditions.
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towards the amount [of restitution].” At the continuation of the restitution and sentencing
hearing, Benjamin received an additional opportunity to object to the transfers. Instead,
Benjamin clarified that the agreed upon transfers would remain unchanged by the
proceeding. By agreeing to transfer the four assets if he received credit, Benjamin
“actively acquiesced or participated in” the transfers and the narrow Lenihan exception
does not apply. Benjamin waived his right to appeal this issue by failing to object to it at
the trial court.
¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for memorandum opinions. This appeal
presents no constitutional issues, no issues of first impression and does not establish new
precedent or modify existing precedent.
¶7 Affirmed.
/S/ LAURIE McKINNON
We Concur:
/S/ JAMES JEREMIAH SHEA
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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