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.
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¶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.
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¶7 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ BRIAN MORRIS
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