Date: 07-28-2016

Case Style: STATE OF MONTANA v. JOEY WENDELL BRAVE

Case Number: 2016 MT 178

Judge: James Jeremiah Shea

Court: IN THE SUPREME COURT OF THE STATE OF MONTANA

Plaintiff's Attorney:

Timothy C. Fox, Montana Attorney General

Defendant's Attorney: Chad Wright, Chief Appellate Defender, Haley W. Connell, Assistant Appellate Defender

Description: 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 legalityandabuse 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,
316P.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,
2009MT150, ¶¶ 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. W e 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, thisstatement 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 “zz”, 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.

Outcome:

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.

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