                                                                                              May 5 2015


                                          DA 14-0733
                                                                                         Case Number: DA 14-0733

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2015 MT 123N



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

BRENDA D. BERG,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Twenty-Second Judicial District,
                       In and For the County of Carbon, Cause No. DC 12-27
                       Honorable Blair Jones, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Brenda Denise Berg, self-represented; Billings, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant
                       Attorney General; Helena, Montana

                       Alex R. Nixon, Carbon County Attorney; Red Lodge, Montana



                                                    Submitted on Briefs: April 8, 2015
                                                               Decided: May 5, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice 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Rules, this case is decided by unpublished opinion and shall not be cited and does not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     Brenda Denise Berg appeals from the denial of her Motion for Reconsideration of

Restitution. In 2012, Berg wrote $2,390 worth of checks drawn on Julius Pilati’s account

with First Bank of Wyoming. Berg was charged in Carbon County with forgery, a felony

common scheme, and felony theft, on July 31, 2012. On December 18, 2013, Berg pled

guilty to the forgery charge in exchange for a dismissal of the theft charge.         Berg

acknowledged her responsibility to pay restitution for the forged checks in her waiver of

rights and plea. Attached to Berg’s waiver was an affidavit in which an officer of the

First Bank of Wyoming sought restitution for the value of the checks, as the bank had

borne the loss by covering them.

¶3     Berg had recently been sentenced in Yellowstone County for two counts of felony

forgery and one felony count of elder abuse. Upon agreement of the parties, the Carbon

County offense proceeded to sentencing while utilizing the Pre-Sentence Investigation

(PSI) report prepared in conjunction with the Yellowstone County offenses. Before the

PSI was reused, the parties noted all relevant changes and corrections necessary for its

applicability to the Carbon County sentencing. Berg was sentenced to the Montana State



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Women’s Prison for a period of five years, to run concurrently with the recently imposed

Yellowstone County sentence.

¶4     On August 21, 2014, 225 days after entry of the District Court’s written judgment

and sentence in the Carbon County matter, Berg filed a Motion for Reconsideration of

Restitution. Berg argued the restitution order was improper under § 46-18-242, MCA, as

the statute requires the crime victim to be the affiant when providing a value of pecuniary

loss. Because Berg forged checks in Pilati’s name, she argued that Pilati should have

been the affiant, not the bank. Berg additionally argued the statute was violated when no

PSI was ordered specifically for the Carbon County case, and that, in the absence of a

proper PSI, Pilati should have testified as to his loss. The District Court denied Berg’s

motion, concluding that under § 46-18-242, MCA, the bank was the proper affiant for

restitution purposes because it suffered the actual pecuniary loss by covering Berg’s

fraudulent checks. Additionally, the court found Berg’s claim regarding a new PSI to be

without merit, as she had consented to the use of the Yellowstone County PSI and was

given the opportunity to offer additions, deletions, and corrections as needed. Finally, the

court rejected Berg’s argument that Pilati should have testified to his loss, again noting

that the bank ultimately incurred the loss. From the denial of her motion, Berg appeals.

¶5     When a criminal sentence exceeds one year of incarceration, we review the

sentence for legality. State v. Gunderson, 2010 MT 166, ¶ 37, 357 Mont. 142, 237 P.3d

74.   Our review of whether a district court adhered to the applicable sentencing

provisions is de novo. State v. Moore, 2012 MT 95, ¶ 10, 365 Mont. 13, 277 P.3d 1212.



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This Court reviews factual findings regarding restitution amounts for clear error. State v.

Aragon, 2014 MT 89, ¶ 9, 374 Mont. 391, 321 P.3d 841.

¶6     Berg reasserts the claims raised before the District Court and makes new

arguments relating to wrongful possession of her property by Pilati as well as assertions

of ineffective assistance of counsel. Under M. R. App. P. 4(5)(b)(i), Berg had 60 days to

appeal the District Court’s sentence and order requiring payment of restitution. Berg

failed to file a direct appeal and sought reconsideration of the restitution 225 days later.

The State argues, and we agree, that the matter is procedurally barred and accordingly,

we need not reach the merits of her claims.

¶7     Even if we were to deem Berg’s motion a petition for postconviction relief, she

raises issues that could have been raised during the sentencing hearing and on direct

appeal from her sentence, but were not. She also raises new claims not previously raised.

Because Berg failed to object to the written sentence, did not appeal the sentence, and

now raises new issues, we conclude her arguments were waived and are improperly

before this Court. Section 46-21-105(2), MCA.

¶8     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for unpublished opinions. This appeal

presents no constitutional issues, no issues of first impression, and does not establish new

precedent or modify existing precedent.

¶9     Affirmed.

                                                  /S/ JIM RICE



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We concur:

/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JAMES JEREMIAH SHEA




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