                                                                                           07/26/2016


                                          DA 15-0072
                                                                                       Case Number: DA 15-0072

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2016 MT 178



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

JOEY WENDELL BRAVE,

              Defendant and Appellant.



APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Broadwater, Cause No. DC 13-28
                        Honorable James P. Reynolds, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Chad Wright, Chief Appellate Defender, Haley W. Connell, Assistant
                        Appellate Defender, Helena, Montana

                For Appellee:

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

                        Cory Swanson, Broadwater County Attorney, Townsend, Montana



                                                   Submitted on Briefs: June 1, 2016

                                                              Decided: July 26, 2016


Filed:

                        __________________________________________
                                          Clerk
Justice James Jeremiah Shea delivered the Opinion of the Court.

¶1    Joey Wendell Brave appeals an order on restitution and a judgment of the First

Judicial District Court, Broadwater County, requiring him to pay restitution for his

conviction of criminal endangerment and imposing various probation conditions. We

address:

      1. Whether the District Court erred in ordering Brave to pay $25,000 in
      restitution.

      2. Whether the District Court erred in imposing several probation conditions.

¶2    We affirm the District Court’s restitution order.     We reverse several of the

probation conditions and remand the judgment to the District Court for proceedings

consistent with this Opinion.

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3    On July 15, 2013, the State of Montana charged Brave with sexual intercourse

without consent, a felony in violation of § 45-5-503, MCA. The State alleged that Brave

had sexual intercourse with A.C. and, as a result, A.C. became pregnant and gave birth to

twins. At the time of the alleged offense, Brave was eighteen years old and A.C. was

fourteen years old. On May 16, 2014, the parties entered into a plea agreement, and

Brave pled guilty to an amended charge of criminal endangerment, a felony in violation

of § 45-5-207, MCA.

¶4    The District Court held a restitution hearing on September 12, 2014, and a

sentencing hearing on November 7, 2014. On November 13, 2014, the District Court

issued a restitution order, ordering Brave to pay $35,667.36 in restitution to A.C.’s



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mother, D.C. The restitution award included $25,000 D.C. claimed as lost wages because

of a ten-week Family and Medical Leave Act (FMLA) leave of absence she took from

work to care for A.C. and the twins, three months after the twins were born.           On

December 9, 2014, the District Court issued its judgment, imposing a six-year deferred

sentence, subject to conditions of probation. Brave appeals the restitution order and the

judgment, challenging the $25,000 in restitution to D.C. for lost wages and several of the

probation conditions.

                             STANDARDS OF REVIEW

¶5    If an offender is sentenced to less than one year of actual incarceration, we utilize

a two-tiered approach. State v. Herd, 2004 MT 85, ¶ 22, 320 Mont. 490, 87 P.3d 1017.

“Upon request, we will review such sentences for both legality and abuse of discretion.”

Herd, ¶ 22 (emphasis in original). Brave does not argue that his sentence constitutes an

abuse of discretion. Therefore, we review Brave’s sentence for legality only. See State v.

McCaslin, 2011 MT 221, ¶ 6, 362 Mont. 47, 260 P.3d 403. “A sentence is legal if it falls

within statutory parameters.” McCaslin, ¶ 6.

¶6    “The appropriate measure of restitution is a question of law, which we review for

correctness.” State v. Aragon, 2014 MT 89, ¶ 9, 374 Mont. 391, 321 P.3d 841 (citation

omitted). We review for clear error a district court’s finding of fact as to the amount of

restitution. Aragon, ¶ 9. A factual finding is clearly erroneous if it is not supported by

substantial evidence, if the court misapprehended the effect of the evidence, or if our

review of the record convinces us that the court made a mistake.            Aragon, ¶ 9.

“Substantial evidence is evidence that a reasonable mind might accept as adequate to


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support a conclusion; it consists of more than a mere scintilla of evidence, but may be

somewhat less than a preponderance.” Aragon, ¶ 9 (citation and internal quotation marks

omitted).

                                      DISCUSSION

¶7     1. Whether the District Court erred in ordering Brave to pay $25,000 in
       restitution.

¶8     Under Montana law, “a sentencing court shall, as part of the sentence, require an

offender to make full restitution to any victim who has sustained a pecuniary loss,

including a person suffering an economic loss,” § 46-18-241(1), MCA, such as loss of

income, see § 46-18-243(1)(a), MCA. “The extent of the restitution obligation is not

limited to the defined elements of the offense and is not limited to losses that arise as a

‘direct’ result of the offense.” State v. Cerasani, 2014 MT 2, ¶ 13, 373 Mont. 192,

316 P.3d 819 (quoting State v. LaTray, 2000 MT 262, ¶ 14, 302 Mont. 11, 11 P.3d 116).

Rather, “[a] condition of a sentence will be upheld as long as there is a nexus either to the

offense or to the offender.”      Cerasani, ¶ 12.     For example, in State v. Perkins,

2009 MT 150, ¶¶ 5, 6, 350 Mont. 387, 208 P.3d 386, a child was placed into foster care

with her aunt, P.M., during Youth in Need of Care proceedings that resulted in the

defendant’s conviction of criminal endangerment.          We upheld the district court’s

restitution award for expenses P.M. incurred that were not covered by the foster care

program, including daycare. Perkins, ¶¶ 9, 13.

¶9     The victim of a criminal act has a duty to mitigate restitution damages. State v.

Kalal, 2009 MT 103, ¶ 9, 350 Mont. 128, 204 P.3d 1240. However, this duty is limited;



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an injured person is not expected to do what is unreasonable or impracticable. Kalal, ¶ 9.

Thus, we consider what a reasonable and prudent person would be expected to do, if

capable, under the circumstances. Kalal, ¶ 9. The District Court found that D.C.’s lost

wages for her ten weeks of FMLA leave were necessarily connected to assisting her

minor daughter in caring for the twins. Brave does not dispute that D.C. took ten weeks

of FMLA leave or that her salary for that time period amounted to $25,000. Rather, he

contends that D.C. should have mitigated her damages by hiring a child care provider to

care for the twins, which presumably would have cost less than D.C.’s hourly wage of

$62.50.

¶10    In her application for FMLA leave, D.C. listed A.C. as the family member for

whom she would provide care. She wrote: “[A.C.] is the 15 year old mother of twin girls

(now 3 mo. old) and is going through an emotional time. She ran away from home and

was hospitalized due to suicidal statements. Now in respite care & therapy. We’re

providing temporary legal guardianship for her babies.” At the September 12, 2014

restitution hearing, D.C. testified that she took FMLA leave “[b]ecause [A.C.] was not

able to care for twins on her own, so I had to help her.” When asked whether there was

anyone else who was able to care for the twins, D.C. answered: “No. Because I’m

[A.C.’s] mom and she needed me there.” Although D.C. later stated that she “probably

could have” hired child care to help with the twins, this statement did not negate her need

to care for A.C.     When D.C. took FMLA leave, A.C. was a minor.               Under the

circumstances, it was reasonable that D.C. would not want to entrust a stranger with the

care and support of her fifteen-year-old daughter, who had previously run away from


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home, had been hospitalized due to suicidal statements, and was the new mother to infant

twins. D.C. was not required to mitigate her damages by hiring a child care provider.

The District Court did not err in awarding D.C. $25,000 in lost wages.

¶11   2. Whether the District Court erred in imposing several probation conditions.

¶12   Brave also alleges that the District Court erred by (1) attaching a sex offender tier

designation to Brave; (2) issuing a written judgment that does not conform to its oral

pronouncement of Brave’s sentence; and (3) ordering Brave to pay Presentence

Investigation Report (PSI) and public defender fees without making a determination of

his ability to pay. The State concedes each of these allegations. Therefore, on remand:

       Condition “ee”, which designates Brave as a Level 1 sexual offender, shall be

          stricken from the District Court’s judgment.

       Condition “z”, which requires Brave to enter and complete sexual offender

          treatment, shall be stricken from the District Court’s judgment.

       Condition “mm”, which requires Brave to submit to annual polygraph testing,

          shall be stricken from the District Court’s judgment.

       Condition “bb” of the District Court’s judgment shall be amended to allow the

          Department of Health and Human Services, Child and Family Services

          Division (Department), to determine the appropriateness of Brave’s contact

          with the victim and the victim’s immediate family. In the event that the

          Department is no longer involved, the discretion for determining the

          appropriateness of any contact will revert to Brave’s probation officer.




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       The citation to § 45-5-503, MCA, in the first paragraph of the District Court’s

          judgment shall be replaced with a citation to § 45-5-207, MCA.

       Pursuant to § 46-8-113, MCA, the District Court on remand shall determine

          Brave’s ability to afford the costs of appointed counsel and PSI preparation.

                                    CONCLUSION

¶13   We affirm the District Court’s restitution order.       We reverse several of the

probation conditions in the District Court’s judgment and remand for proceedings

consistent with this Opinion.


                                                /S/ JAMES JEREMIAH SHEA


We Concur:

/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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