State v. B. Rose ( 2021 )

01/19/2021
DA 18-0702
Case Number: DA 18-0702
IN THE SUPREME COURT OF THE STATE OF MONTANA
2021 MT 11N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
BENJAMIN LEE ROSE,
Defendant and Appellant.
APPEAL FROM: District Court of the First Judicial District,
In and For the County of Lewis and Clark, Cause No. CDC 2017-270
Honorable Kathy Seeley, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Chad Wright, Appellate Defender, Gregory Hood, Assistant Appellate
Defender, Helena, Montana
For Appellee:
Austin Knudsen, Montana Attorney General, Michael Dougherty, Assistant
Attorney General, Helena, Montana
Leo J. Gallagher, Lewis and Clark County Attorney, Stephanie Robles,
Melissa Broch, Deputy County Attorneys, Helena, Montana
Submitted on Briefs: December 9, 2020
Decided: January 19, 2021
Filed:
cir-641.—if
__________________________________________
Clerk
Chief Justice Mike McGrath 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 Benjamin Lee Rose (Rose) appeals from a November 5, 2018 Amended Judgment
and Commitment ordering him to pay restitution in the amount of $1,939. We affirm.
¶3 Rose moved in with his partner Autumn Daniels (Daniels) and her two daughters
S.D. and M.D. in 2007. Rose and Daniels had two sons together, J.R. and B.R. After S.D.
informed a school official of sexual assault by Rose, S.D. and M.D. were taken to the Lewis
and Clark Child Advocacy Center of AWARE, Inc. (AWARE) for forensic interviews.
AWARE provides services to child victims of crime and abuse, such as “child-friendly
forensic interviewing,” connecting children with specially trained mental health and
medical providers, and helping children and families navigate the child protection and
criminal justice systems. At these interviews, S.D. and M.D. disclosed that they had been
sexually assaulted by Rose. Subsequently, J.R. and B.R. were also interviewed by
AWARE, though no charges resulted from those interviews.
¶4 Rose was convicted of sexual intercourse without consent as to S.D. and M.D. and
sexual assault as to M.D. A presentence investigation report (PSI) listed AWARE as a
party requesting restitution. An attached letter from AWARE stated that it had conducted
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forensic interviews with both S.D. and M.D. as well as with Rose’s sons, B.R. and J.R.
The letter from AWARE stated that the rate for each child forensic interview and associated
services was $300. After tallying restitution amounts awarded to the Montana Crime
Victim Compensation Program, to Daniels, and the $1,200 requested by AWARE, the PSI
recommended a total restitution amount of $1,939. At sentencing, the District Court
engaged in the following brief discussion with Rose’s defense counsel, Mariah Eastman:
Court: We didn’t discuss the restitution. Ms. Eastman, what is his position
on restitution?
Eastman: Judge, it looks like the restitution is well documented. I have no
objection.
Court: All right. So the restitution amount of, it appears to be $1400 will be
imposed, as set forth in the presentence investigation.
¶5 The subsequent written Judgment and Commitment Order stated that the restitution
amount was $1,349. The State then moved the District Court to amend the restitution
amount to $1,939, citing “inadvertent typographical error.” The District Court issued an
Amended Judgment ordering Rose to pay restitution in the amount of $1,939.
¶6 On appeal, Rose argues that the District Court erred by awarding $1,200 in
restitution to AWARE, contending that AWARE was not a statutorily-defined “victim.”
In the alternative, Rose maintains that the $600 of AWARE’s restitution award designated
for the interviews of B.R. and J.R. was improper, as they were not alleged victims in this
case. Finally, Rose claims that the District Court improperly increased the restitution
amount to $1,939 in the Amended Judgment without affording him an opportunity to be
heard on the matter.
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¶7 We review criminal sentences for legality, determining whether the sentence is
within statutory parameters. State v. Johnson, 2000 MT 290, ¶ 13, 302 Mont. 265, 14 P.3d
480; State v. McIntire, 2004 MT 238, ¶ 13, 322 Mont. 496, 97 P.3d 576. The inquiry is a
question of law, reviewed de novo for correctness. Johnson, ¶ 13.
¶8 Rose argues that AWARE is not a “victim” as defined by § 46-18-243(2), MCA,
and is therefore not eligible to receive restitution for the cost of conducting forensic
interviews associated with this case. Rose does not contend that the District Court failed
to undertake the necessary findings and considerations required by statute; rather, he argues
that the resulting sentence itself was illegal under §§ 46-18-241 and -243, MCA, regardless
of the procedures followed by the sentencing court.
¶9 Offenders are required to pay restitution to “any victim who has suffered pecuniary
loss, including a person suffering an economic loss.” Section 46-18-241, MCA. A
“victim,” is defined as “a person who suffers loss of property, bodily injury, or death as a
result of . . . the commission of an offense.” Section 46-18-243(2)(a)(i), MCA.
¶10 The State contends that we should not review the issue as Rose did not object to it
below and thus has waived the issue on appeal. Under the facts of this case we agree with
the State’s contention. When counsel advised the Court that the restitution amount was
well documented and that she had no objection, the arguments raised by appellant were
waived.
¶11 Rose also challenges the Amended Judgment, which entered the amount of
restitution as $1,939 after the District Court’s oral pronouncement of $1,400 and
subsequent written judgement of $1,349. A judgment is unlawful if it substantively
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increases the defendant’s property loss without affording the defendant a sufficient
opportunity to respond. Johnson, ¶ 24. Here, however, Rose had an opportunity to respond
to the increased amount, and defense counsel had agreed to the amount of $1,939. The PSI
requested $1,939 in restitution, and the defendant acquiesced. When the District Court
later corrected its erroneous judgments to reflect this amount, defense counsel had therefore
already had an opportunity to respond. The amended increase in restitution was proper
under Johnson. See also § 46-18-116(3), MCA (“The court may correct a factually
erroneous sentence or judgment at any time.”).
¶12 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our
Internal Operating Rules, which provides for memorandum opinions. In the opinion of the
Court, the case presents a question controlled by settled law or by the clear application of
applicable standards of review.
¶13 Affirmed.
/S/ MIKE McGRATH
We Concur:
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ INGRID GUSTAFSON
/S/ JIM RICE
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