                                                                                           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.



                                              2
¶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.



                                             3
¶7   Affirmed.


                          /S/ MIKE McGRATH


We concur:


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




                      4
