State v. J. Brave, 2016 MT 178

Defendant Joey Wendell Brave (age 18 at time) pled guilty to felony criminal endangerment after originally being charged with sexual intercourse without consent involving a 14-year-old, A.C.; twins were born from the incident.
D.C., A.C.’s mother and temporary guardian of the twins, took ten weeks of FMLA leave three months after the twins’ birth to care for A.C. and the infants.
District Court ordered $35,667.36 restitution to D.C., including $25,000 for D.C.’s lost wages during the ten-week FMLA leave; court also imposed a six-year deferred sentence with probation and multiple conditions.
Brave appealed the restitution award (challenging the $25,000 lost wages as unmitigated/unrelated) and several probation conditions (sex-offender designation, treatment, polygraph, fee assessments, and discrepancies between oral and written judgment).
The State conceded several errors as to probation conditions and fee findings; the key contested issue on appeal was the $25,000 restitution award for lost wages.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether $25,000 in lost wages to D.C. is recoverable restitution	Restitution for pecuniary loss (lost income) is authorized; D.C.’s FMLA leave was tied to caring for victim and infants	D.C. failed to mitigate by hiring childcare that would have cost less than her wage	Affirmed: $25,000 restitution sustained; D.C. reasonably refused to entrust care to strangers given A.C.’s mental-health history and minority status
Whether sex-offender tier designation and related conditions were properly imposed	State conceded these conditions were improper in judgment	Brave argued designation and treatment/polygraph were erroneous and inconsistent with oral sentence	Reversed: sex-offender designation, sexual-offender treatment, and annual polygraph conditions stricken
Whether written judgment conformed to oral pronouncement (statute citation)	State conceded the written judgment mis-cited the statute	Brave asserted mismatch between oral sentence and written judgment	Modified: judgment citation corrected from § 45-5-503 to § 45-5-207 and other clerical fixes ordered
Whether court properly ordered PSI and public defender fees without ability-to-pay finding	State conceded error	Brave argued court must determine ability to pay before imposing such fees	Remanded: district court must determine Brave’s ability to pay pursuant to § 46-8-113, MCA

State v. Herd, 320 Mont. 490, 87 P.3d 1017 (2004) (two-tiered review when sentence includes <1 year actual incarceration)
State v. McCaslin, 362 Mont. 47, 260 P.3d 403 (2011) (legal review of sentence when no abuse-of-discretion claim)
State v. Aragon, 374 Mont. 391, 321 P.3d 841 (2014) (standard of review for restitution; factual findings reviewed for clear error)
State v. Cerasani, 373 Mont. 192, 316 P.3d 819 (2014) (restitution not limited to direct elements of offense; nexus to offense or offender suffices)
State v. LaTray, 302 Mont. 11, 11 P.3d 116 (2000) (broad restitution scope)
State v. Perkins, 350 Mont. 387, 208 P.3d 386 (2009) (upholding restitution for foster-care-related expenses tied to defendant’s offense)
State v. Kalal, 350 Mont. 128, 204 P.3d 1240 (2009) (victim’s duty to mitigate limited by reasonableness and practicability)