State v. Hubbel

• Decision Date: 22 February 2001
• Docket Number: No. 99-183.,99-183.
• Citation: 20 P.3d 111,304 Mont. 184,2001 MT 31
• Parties: STATE of Montana, Plaintiff and Respondent, v. Wesley C. HUBBEL, Defendant and Appellant.
• Court: Montana Supreme Court

20 P.3d 111

2001 MT 31

304 Mont. 184

STATE of Montana, Plaintiff and Respondent, v. Wesley C. HUBBEL, Defendant and Appellant.

No. 99-183.

Supreme Court of Montana.

Submitted on Briefs February 17, 2000.

Decided February 22, 2001.

Rehearing Granted March 20, 2001.

As Modified March 20, 2001.

Chad Wright, Assistant Appellate Defender, Appellate Defender Office, Helena, MT, For Appellant.

Joseph P. Mazurek, Montana Attorney General, Pamela P. Collins, Assistant Montana Attorney General, Helena, MT; George H. Corn, Ravalli County Attorney, James N. Mickelson, Special Deputy Ravalli County Attorney, Hamilton, MT, For Respondent.

Justice JAMES C. NELSON delivered the Opinion of the Court.

¶ 1 Wesley Hubbel was convicted in the Twenty-First Judicial District Court, Ravalli County, by a jury of aggravated assault for shooting his wife. He was sentenced to 20 years in Montana State Prison with an additional 2 years for the use of a weapon, with 10 years suspended. Hubbel appeals from this conviction and sentence. We affirm in part and remand for further proceedings.

¶ 2 The following issues were presented on appeal:

¶ 3 1. Whether the appellant sustained his burden of demonstrating that his trial counsel was constitutionally ineffective for failing to request a "failure to agree" instruction as allowed by § 46-16-607(3), MCA.

¶ 4 2. Whether the District Court abused its discretion when it sentenced the appellant after retrial, suspending less time than after the first trial.

¶ 5 3. Whether the District Court abused its discretion when it ordered Hubbel to reimburse the costs of his court appointed counsel from his first trial.

¶ 6 4. Whether the District Court erred in failing to inquire into Hubbel's ability to pay the costs of his court appointed counsel.

Factual and Procedural History

¶ 7 Following an evening of dining, dancing and drinking, Wesley Hubbel (Hubbel) and his wife, Carol Dutton Hubbel (Dutton) returned to their home, south of Darby, Montana. Hubbel had been drinking heavily and the two had an argument. Dutton went out to the front porch to call her dog and Hubbel went into a spare bedroom. While searching for money, he found a gun in a closet. He fired the .357 Magnum into the ceiling and then through the front door of the home, striking his wife twice, once in the neck and once in the leg. Hubbel claimed that he did not know that Dutton was on the other side of the door and that the injury was an accident.

¶ 8 After calling 9-1-1, Hubbel drove Dutton to a convenience store in Darby to meet an ambulance. Upon reaching the convenience store, Hubbel got out of the car, walked up to the police officer and said, "arrest me, I just shot my wife." Hubbel was arrested, and Dutton was put into the ambulance and received medical attention.

¶ 9 In an Information filed on December 11, 1995, Hubbel was charged with aggravated assault. Hubbel was arraigned and pleaded not guilty. A jury trial was held and Hubbel was found guilty of aggravated assault. The court sentenced him to 20 years in the Montana State Prison for the crime of aggravated assault, with an additional 2 years for the use of a weapon for a total of 22 years in the Montana State Prison. Of that sentence, 16 years were to be suspended under certain conditions. Those conditions included that Hubbel not be considered for parole or early release until he had successfully completed several of the prison's programs, including the Chemical Dependency Program, Anger Management Program, Moral Resonation Program, and the Criminal Thinking Errors Program.

¶ 10 Hubbel brought an appeal to this Court and his initial conviction was reversed. See State v. Hubbel (1997), 286 Mont. 200, 951 P.2d 971

. The case was retried in September of 1998, and Hubbel was again convicted of aggravated assault by a jury. Following his second trial, Hubbel's probation and parole officer prepared an updated presentence investigation report (PSI). This report noted that Hubbel was unable to complete any of the previously ordered programs and recommended that only 10 years of the 22 year sentence be suspended, rather than 16, as was ordered following the first trail. The prosecutor agreed with this recommendation, arguing that increased prison time was necessary for his rehabilitation. Hubbel's counsel recommended that the court impose the same sentence it had imposed after the first trial. At the sentencing hearing, Hubbel was again sentenced to 20 years for aggravated assault, with an additional 2 years for the use of a weapon. This time, however, only 10 years was to be suspended under certain conditions.

Discussion

¶ 11 Issue 1. Whether Hubbel sustained his burden of demonstrating that his trial counsel was constitutionally ineffective for failing to request a "failure to agree" instruction as allowed by § 46-16-607(3), MCA.

¶ 12 Hubbel argues that his counsel was ineffective for failing to request a "failure to agree instruction." Not giving this instruction, he argues, limited the jury's consideration of the lesser included offenses. The instruction at issue, an "acquittal first" instruction, was proposed by the defendant and given by the court. The instruction provided in part:

In your deliberations you should consider the charge of aggravated assault first, and that all twelve of you find the defendant either guilty or not guilty of that charge.

In the event you find the defendant guilty of aggravated assault, you need go no further as you will have reached a verdict in this case ...

¶ 13 Hubbel argues that this jury instruction contained a misstatement of the law. He argues that § 46-16-607(3), MCA, and this Court's decision in State v. Robbins, 1998 MT 297, 292 Mont. 23, 971 P.2d 359 (overruled in part on other grounds by State v. LaMere, 2000 MT 45, 298 Mont. 358, 2 P.3d 204), made a change in the law to require the use of a failure to agree instruction, making the instruction offered by defense counsel an incorrect and misleading statement of the law. He argues that this mistake made his counsel constitutionally ineffective.

¶ 14 A criminal defendant is denied effective assistance of counsel if: (1) his counsel's conduct falls short of the range reasonably demanded in light of the Sixth Amendment to the United States Constitution; and (2) counsel's failure is prejudicial. State v. Chastain (1997), 285 Mont. 61, 63, 947 P.2d 57, 58.

¶ 15 There is, however, a strong presumption of effectiveness:

Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." Strickland v. Washington (1984), 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.

We recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690,104 S.Ct. 2052.

¶ 16 Hubbel relies on this Court's decision in State v. Robbins, 1998 MT 297, 292 Mont. 23, 971 P.2d 359. In Robbins, we held that the district court erred in denying the defendant's request to give a corrective instruction that a jury may consider a lesser offense of negligent homicide if it is unable, after reasonable effort, to reach a unanimous verdict on the greater offense. Robbins, ¶ 40

¶ 17 Robbins, however, was an unusual case. The defense counsel had initially requested this "failure to agree" instruction, but was misled by the court and counsel for the prosecution. Robbins, ¶¶ 19-23.

¶ 18 Section 46-16-607(3), MCA provides:

When a lesser included offense instruction is given, the court shall instruct the jury that it must reach a verdict on the crime charged before it may proceed to a lesser included offense. Upon request of the defendant at the settling of instructions, the court shall instruct the jury that it may consider the lesser included offense if it is unable after reasonable effort to reach a verdict on the greater offense.

¶ 19 The second sentence allows for what is known as a "failure to agree" instruction. In Robbins, we noted the new standard was limited to a request from the defendant:

Thus, under this new standard, as long as a criminal defendant requests a "failure to agree" instruction at the settling of jury instructions, a district court must instruct the jury that it may consider the lesser offense without reaching a unanimous verdict on the greater offense. Robbins, ¶ 34.

This statute was drafted in order to comport with United States v. Jackson (9th Cir.1984), 726 F.2d 1466, 1469. Jackson held that when a defendant requests an instruction that the jury may consider the lesser included offense if unable, after reasonable effort, to agree on a verdict for the greater offense, "it is error to reject the form timely requested by defendant." However, contrary to Hubbel's argument, neither Jackson nor Robbins served to make use of the failure to agree instruction mandatory. While the use of the "failure to agree" instruction may be beneficial to the defendant, the language of § 46-16-607(3), MCA, clearly states that this instruction should be given "upon request of the defendant." Jackson, too, makes this form of jury instruction optional. The decision of whether or not to give this instruction is left to the discretion of the defense.

¶ 20 In order to meet his burden, Hubbel is required to support his contentions that his counsel erred in not requesting the instruction. There is a strong presumption that defense counsel rendered adequate assistance and made all decisions in the exercise of reasonable professional judgment. The record on appeal is silent regarding why Hubbel's counsel acted or failed to act in the manner challenged. Defense counsel was never asked to provide an explanation...