Hubbard v. State

• Decision Date: 05 February 2008
• Docket Number: No. 06-235.,06-235.
• Citation: 175 P.3d 625,2008 WY 12
• Parties: David Eugene HUBBARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

175 P.3d 625

2008 WY 12

David Eugene HUBBARD, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 06-235.

Supreme Court of Wyoming.

February 5, 2008.

Representing Appellant: Galen Woelk of Aron and Hennig, LLP, Laramie, Wyoming.

Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Johnson, Faculty Director, Prosecution Assistance Program; Geoffrey Gunnerson, Student Director; and Jennifer Reece, Student Intern. Argument by Mr. Johnson.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] Pursuant to a plea agreement, Appellant David Eugene Hubbard ("Hubbard"), pled guilty to one count of third-degree sexual assault and one count of immodest, immoral, or indecent acts with a minor. On appeal, Hubbard claims that he was substantially prejudiced and deprived of due process during his sentencing proceeding because an improper Victim Impact Statement and Presentence Investigation Report ("PSR") had been previously filed with the district court. Hubbard further argues that his sentence of not less than 17 nor more than 25 years of incarceration was disproportionate to the magnitude of his crimes and constitutes an abuse of discretion. We affirm.

ISSUES

[¶ 2] Hubbard presents these issues for our review:

I. Whether the district court abused its discretion when it sentenced Hubbard.

II. Whether the State's misconduct substantially prejudiced Hubbard and deprived him of his right to due process and a fair sentencing hearing.

The State has set forth the issues to be:

I. Did the district court commit procedural error when it sentenced [Hubbard]?

II. Did the district court commit plain error when the judge did not recuse himself?

III. Did the district court abuse its discretion in sentencing [Hubbard]?

FACTS AND PROCEEDINGS

[¶ 3] The felony information filed in this case charged Hubbard with two counts of third-degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-304(a)(ii) (LexisNexis 2005), and one count of immodest, immoral or indecent acts with a minor in violation of Wyo. Stat. Ann. § 14-3-105(a) (LexisNexis 2005).¹ The facts of the incidents were obtained from forensic interviews with the victims.

[¶ 4] The earliest incident occurred over the Easter weekend in 2005. The victim was S.W., a 13-year-old girl from Nebraska. S.W. stated in her interview with authorities that her 12-year-old friend, C.R., had invited her to visit C.R.'s uncle, David Hubbard, at his residence in Laramie, Wyoming. S.W. alleged that during her weekend stay at the residence, Hubbard touched S.W. on three separate occasions. The first incident occurred when S.W., C.R., and Hubbard were playing a game of ping-pong in Hubbard's basement. S.W. claimed that when C.R. went upstairs, Hubbard hit the ping-pong ball off the table and when S.W. went to pick up the ball, Hubbard followed her. As S.W.'s back was turned to Hubbard when she reached down to pick up the ball, Hubbard came up behind her, reached underneath her shirt, and touched her stomach.

[¶ 5] S.W. stated that the second incident occurred the next day when she was sitting on the living room couch with C.R. and Hubbard. Hubbard was sitting between the two girls, and the three were covered with a blanket. S.W. claimed that Hubbard proceeded to put his hand underneath her shirt and bra and touch her breasts for approximately 15 to 20 minutes, after which S.W. left the couch.

[¶ 6] S.W. maintained that the third and final incident occurred on the night before she returned to Nebraska. S.W. stated that Hubbard had invited her to sit on the couch next to him to watch a movie, but she declined and opted to sit on the floor. When Hubbard continued to ask S.W. to sit by him, S.W. finally agreed. Hubbard then placed a blanket over the two of them and placed his hand on S.W.'s hip outside of her clothing.

[¶ 7] The other significant report of abuse came from A.L., a 14-year-old girl also from Nebraska. In A.L.'s interview, she stated that over the Fourth of July weekend in 2005, she had accompanied K.A., her 13-year-old girlfriend, to visit the Hubbard residence. A.L. stated that one evening she K.A., and Hubbard were playing a computer game. A.L. claimed that K.A. was sitting at the computer while A.L. and Hubbard were seated on separate chairs behind and out of view of K.A. A.L. reported that Hubbard began rubbing her back with his right hand and proceeded to put his hand inside her shirt via the right armhole and rub her chest and breasts underneath her bra. Hubbard allegedly also moved his hand down her shorts and underwear touching her pubic area.

[¶ 8] A.L. also claimed that later this same evening, Hubbard was sitting next to A.L. on the couch when Hubbard stretched A.L.'s right leg out across his lap and began to rub her leg and asked A.L. to rub his arm. A.L. stated that she did so reluctantly.

[¶ 9] When the Laramie Police interviewed Hubbard, he admitted to touching S.W.'s breasts while playing ping-pong in the basement and while sitting on the couch in his living room. Hubbard claimed that on both occasions, he touched S.W. under her shirt, but over her bra, and admitted doing so for sexual gratification. When questioned in regard to A.L., Hubbard admitted to touching A.L.'s breasts, under her shirt but over her bra, but he denied putting his hand in A.L.'s shorts. Hubbard also admitted doing so for sexual gratification.

[¶ 10] As noted above, pursuant to Hubbard's plea agreement, he agreed to plead guilty to Counts II and III, involving S.W. and A.L., and in exchange the State agreed to dismiss Count I. However, there was no sentencing recommendation agreement between the State and Hubbard.

[¶ 11] Subsequent to Hubbard's guilty plea, but prior to his sentencing, Hubbard obtained a Forensic Psychosexual Evaluation. Also prior to sentencing, the Albany County Victim Witness Program prepared and delivered a Victim Impact Statement to the district court and to Wyoming Probation and Parole. Although the Victim Impact Statement contained the statements of S.W., and the parents of S.W. and A.L., the document also contained the statements of several other individuals beyond those affected by the charged crimes.

[¶ 12] After Hubbard's counsel received a copy of the Victim Impact Statement, he contacted the County Attorney in writing, and requested that the County Attorney stipulate to redact the portions of the Victim Impact Statement that referred to the additional "victims." The State responded that Hubbard's counsel should instead file a motion with the district court.

[¶ 13] Accordingly, on May 22, 2006, Hubbard filed a Motion to Strike Victim Impact Statement and for Order of Compliance moving the district court to strike the Victim Impact Statement from the record. However, while a decision on Hubbard's motion was pending, the Victim Impact Statement was incorporated into Hubbard's PSR, which was delivered to the district court on May 25, 2006. Hubbard then filed his Objection to Inaccurate Information in the Presentence Investigation and Motion to Strike because, inter alia, the PSR referenced multiple victims other than S.W. and A.L.

[¶ 14] On June 30, 2006, after hearing arguments on Hubbard's motions, District Court Judge John C. Brooks ordered that the victim impact statements that were filed by individuals other than S.W., A.L., and their families, could not and had not been considered by the court. The district court also ordered that the recommendations from the PSR investigator should be stricken and that the PSR should be amended so that it would only reflect the appropriate statements. The district court explained that because it had received the victim impact statements "almost simultaneously" with Hubbard's objections, the only victim impact statements that the court had considered were those of S.W., A.L., and their parents.

[¶ 15] Shortly after granting Hubbard's motions, the parties proceeded to sentencing. At sentencing, the State argued that Hubbard should receive the maximum composite sentence of 25 years. In response, Hubbard and his counsel presented several mitigating factors for the court to consider, such as the fact that Hubbard had no prior employment problems, no prior criminal offenses, no substance abuse problems, no suicidal ideation, and he had exhibited remorse for his conduct.

[¶ 16] The district court ultimately found that Hubbard's crimes were "particularly egregious" and sentenced Hubbard to consecutive sentences of 11 to 15 years on Count II, and 6 to 10 years on Count III. The district court explained that Hubbard's Forensic Psychosexual Evaluation provided that without significant counseling, Hubbard had a high risk of re-offending. The district court also stated that Hubbard had repeatedly committed these crimes while acting with the full knowledge that his actions were wrong. In regard to the consecutive nature of sentence, the court determined that this was appropriate because Hubbard's crimes were those of a sexual predator who had purposefully groomed his victims.

[¶ 17] The Judgment, Sentence and Order of Incarceration was filed on August 4, 2006, after which Hubbard timely filed his notice of appeal.

DISCUSSION

Procedural Error

[¶ 18] Although the district court explicitly stated that it had not and would not consider the disputed victim impact statements and PSR materials, Hubbard maintains that the mere submission of these materials resulted in a procedural error that substantially prejudiced Hubbard and compromised his right to due process. Specifically, Hubbard claims that "but for" this procedural impropriety, his sentence would not have been "as unreasonable."

[¶ 19] Hubbard's burden in this regard is an arduous one. A sentence will not be disturbed due to sentencing procedures unless the defendant can show an abuse of...