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

09/05/2017

Case Number: DA 15-0501
2

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 
3

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. 
4

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