                                                                                               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

1
   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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