Submitted on Briefs: June 14, 2017
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
Appellant: Chad M. Wright, Chief Appellate Defender, Chad R.
Vanisko, Assistant Appellate Defender, Helena, Montana
Appellee: Timothy C. Fox, Montana Attorney General, Tammy A.
Hinderman, Assistant Attorney General, Helena, Montana Terryl
Matt, Interim Glacier County Attorney, Cut Bank, Montana
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
Mark Alan Benjamin (Benjamin) appeals from a judgment issued
by the Ninth Judicial District Court, Glacier County. We
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 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.
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. 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.
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 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.
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.
Concur: JAMES JEREMIAH SHEA, BETH BAKER, MICHAEL ...