State v. Albert Gaub

2011 MT 273N

Opinion

November 1 2011

DA 11-0162

IN THE SUPREME COURT OF THE STATE OF MONTANA 2011 MT 273N

STATE OF MONTANA, Plaintiff and Appellee,

v.

ALBERT GAUB,

Defendant and Appellant.

APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DC 10-169 Honorable Robert L. Deschamps, III, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Eric Bunn, Assistant Public Defender; Office of the State Public Defender, Billings, Montana

For Appellee:

Steve Bullock, Montana Attorney General; Mark W. Mattioli, Assistant Attorney General, Helena, Montana

Fred Van Valkenburg, Missoula County Attorney, Missoula, Montana

Submitted on Briefs: October 12, 2011 Decided: November 1, 2011

Filed:

__________________________________________

Clerk

Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(d), 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 Albert Gaub (Gaub) pled guilty to the felony sexual assault, § 45-5-502(1)(3), MCA, of a four-year-old victim who was in his care at the daycare he operated with his wife. This sexual contact began when the victim was 21 months old, and continued for the next year and a half. He appeals from the District Court’s designation of him as a level II sexual offender.

¶3 Gaub was initially charged with sexual intercourse without consent under § 45-5- 503, MCA, but the charges were later reduced. Gaub did not sign a plea agreement, but the District Court agreed during the hearing that it would not impose a sentence of greater than 30 years. In January 2010, The Fourth Judicial District Court, Missoula County, sentenced Gaub to 30 years at the Montana State Prison with 15 years suspended, and ordered that he pay $58,201.13 in restitution. The District Court also took Gaub’s sexual offender designation under advisement, requesting that both parties brief the issue. In February both parties submitted briefs, with Gaub requesting a level I designation, and the State expressing its belief that level I was inadequate.

3

¶4 Upon sentencing the offender, § 46-23-509(3)(a)-(b), MCA, require the District Court to “review the sexual offender evaluation report, any statement by a victim, and any statement by the offender,” and then “designate the offender as level 1, 2, or 3[.]” Gaub took two tests as part of his sexual offender evaluation: one that designated him a level I offender, and one that designated him a level II offender. The combined score of these tests placed him as a level I risk to reoffend. The District Court took account of the parties’ briefing, Gaub’s sexual offender evaluation, the PSI, and statements of Gaub himself in designating him a level II sexual offender.

¶5 We review a sexual offender designation for an abuse of discretion. State v. Hill, 2009 MT 134, ¶ 22, 350 Mont. 296, 207 P.3d 307. The test for abuse of discretion is “whether the trial court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice.” State v. Dethman, 2010 MT 268, ¶ 11, 358 Mont. 384, 245 P.3d 30. “The statute does not require the sentencing court to accept the recommendation of the sexual offender evaluation. The district court makes the designation in the exercise of its discretion.” Hill, ¶ 42. Section 46-23-509, MCA, clearly directs the District Court to consider more than the sexual offender evaluation.

¶6 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our Internal Operating Rules, which provides for noncitable memorandum opinions. The issues in this case are ones of judicial discretion and there clearly was not an abuse of discretion.

4

¶7 Affirmed.

/S/ MIKE McGRATH

We concur:

/S/ PATRICIA COTTER /S/ BETH BAKER /S/ MICHAEL E WHEAT /S/ BRIAN MORRIS