Hubbard v. State

Cite as 2017 Ark. App. 636

ARKANSAS COURT OF APPEALS
DIVISION II
No.CR-17-350

Opinion Delivered: November 29, 2017
SHUANDRELL HUBBARD
APPELLANT
APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT,
V. FOURTH DIVISION
[NO. 60CR-16-3702]

STATE OF ARKANSAS
APPELLEE HONORABLE HERBERT T.
WRIGHT, JR., JUDGE

AFFIRMED

RAYMOND R. ABRAMSON, Judge

Shuandrell Hubbard appeals the Pulaski County Circuit Court order denying his

motion to transfer his case to the juvenile division of the circuit court. On appeal, he argues

that the circuit court erred by (1) failing to make findings pursuant to Arkansas Code

Annotated section 9-27-318(g)(1) (Repl. 2015); (2) finding that his culpability appeared to

be equal to that of his accomplice; and (3) finding that the resources available in the juvenile

division of the circuit court were not likely to rehabilitate him by the time he reached the

age of twenty-one. We affirm.

On October 12, 2016, the State charged Hubbard in the criminal division of the

Pulaski County Circuit Court with first-degree battery, terroristic act, aggravated assault,

and possession of a handgun by a minor. On November 11, 2016, Hubbard filed a motion
Cite as 2017 Ark. App. 636

to transfer the case to the juvenile division of the circuit court. The court held a hearing on

January 9, 2017.

At the hearing, Michael Lundy, a detective for the Little Rock Police Department,

testified that he responded to a call at the residence of Pablo Laredo on September 6, 2016.

When Lundy arrived at the scene, Pablo reported to Lundy that while he was performing

mechanic work on his car outside his residence, he felt something pressed against his head.

An individual then said, “Excuse me, sir,” and when Pablo turned around, he saw Hubbard

pointing a firearm at him. Pablo grabbed a grease gun and started fighting Hubbard. He

then noticed the shadow of a second individual who also had a gun. Pablo screamed for his

brother, José Laredo, who was inside the residence. José helped Pablo subdue Hubbard, and

they hog-tied him until the police arrived. During the altercation, Pablo sustained two

gunshot wounds to his shoulder, a swollen eye, and various lacerations and abrasions to his

body. However, Lundy testified that Pablo could not identify whether Hubbard or the

second individual had shot him.

Dwayne Wilkins, a juvenile-probation officer, testified that Hubbard first entered the

juvenile-detention facility in April 2016. He explained that probable cause was found for

the arrest but that the court released Hubbard to his mother’s custody with the conditions

that he attend school, comply with a curfew, call his probation officer weekly, and refrain

from using drugs and alcohol. He noted that Hubbard mostly complied with the conditions

and that he called the probation office regularly, but not weekly. Wilkins explained that in

June 2016, the court adjudicated Hubbard as a juvenile delinquent based on the April

charges. Wilkins explained that after the June 2016 adjudication, the State charged Hubbard

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again. However, the court did not find probable cause for those charges, and Hubbard was

once again released to his mother’s custody with the same conditions. He was then charged

in the instant case. Wilkins testified that if the court transferred the case back to the juvenile

division, Hubbard could receive counseling, commitment to the Department of Youth

Services or the detention facility, random drug screens, and probation. He believed that

Hubbard could be rehabilitated with these services.

Scott Tanner, the juvenile ombudsman, testified at the hearing. He explained that

the State of Arkansas has developed rehabilitative services to help juvenile offenders develop

skills to complete their education, enter the workforce, and comport behaviors. He

referenced the C-Step program through the National Guard, the United Family Services

program, and the Arkansas Dream Center. He noted that the Arkansas Dream Center is

located in the neighborhood where Hubbard’s grandfather resides and that the center offers

structure, tutoring, counseling, and community mentoring.

Terri Hubbard, Hubbard’s mother, testified that her son turned sixteen on July 25,

2016, and that he is immature. She believed that the rehabilitation program through the

juvenile court could help him. She explained that he had been adjudicated as a juvenile

delinquent on only one occasion and noted that he had been charged in another case but

that probable cause was not found. She stated that in the case in which he was adjudicated

delinquent, other juveniles were involved and that Hubbard had problems with peer

pressure. She stated that she had discussed the instant charges with her son, and she believed

his actions had resulted from peer pressure. She noted that the second individual involved

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in the instant charges is older than Hubbard. She also testified that Hubbard had been

diagnosed with attention deficit disorder.

Andrew Davis, the founder and executive director of the Arkansas Dream Center,

testified that he has known Hubbard since 2009. He testified that Hubbard has potential but

that he is a follower and has followed the wrong people. Davis explained that when Hubbard

is released, he will begin the program at the Arkansas Dream Center and that the program

will require him to be at the center from 8:00 a.m. to 6:00 p.m. every day. He noted that

they would develop a plan for school but that the Little Rock School District probably

would not allow Hubbard to return. He believed that Hubbard could be rehabilitated if

given the opportunity. He admitted that about two or three years before the hearing,

Hubbard had been attending the center daily. However, he explained that children do not

grasp the consequences of their actions until they get older.

At the conclusion of the hearing, the court orally denied the transfer motion and

made findings of fact pursuant to Arkansas Code Annotated section 9-27-318(g). On January

13, 2017, the court entered a written order. Hubbard timely appealed the order to this

court. On appeal, Hubbard argues that the circuit court erred by (1) failing to make findings

under Arkansas Code Annotated section 9-27-318(g)(1); (2) finding that his culpability

appeared to be equal to his accomplice; and (3) finding that the resources available in the

juvenile division of the circuit court were not likely to rehabilitate him by the time he

reached the age of twenty-one.

We will not reverse a circuit court’s decision denying a motion to transfer unless it

is clearly erroneous. Nichols v. State, 2015 Ark. App. 397, 466 S.W.3d 431. A finding is

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clearly erroneous when, after reviewing the evidence, the appellate court is left with a firm

and definite conviction that a mistake was made. Id. As we have held many times, appellate

courts will not reweigh the evidence presented to the circuit court. See Clem v. State, 351

Ark. 112, 90 S.W.3d 428, (2002).

Arkansas Code Annotated section 9-27-318(g) sets forth all the factors the court shall

consider in a transfer hearing:

(1) The seriousness of the alleged offense and whether the protection of society
requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent,
premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being
given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation
in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been
adjudicated a juvenile offender and, if so, whether the offenses were against persons
or property, and any other previous history of antisocial behavior or patterns of
physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of
the juvenile’s home, environment, emotional attitude, pattern of living, or desire to
be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile
division of circuit court that are likely to rehabilitate the juvenile before the
expiration of the juvenile’s twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of
the alleged offense;
(9) Written reports and other materials relating to the juvenile’s mental, physical,
educational, and social history; and
(10) Any other factors deemed relevant by the judge.

The circuit court is required to make written findings on all of the above factors. Ark. Code

Ann. § 9-27-318(h)(1). However, there is no requirement that proof be introduced against

the juvenile on each factor, and the circuit court is not obligated to give equal weight to

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each of these factors in determining whether a case should be transferred. K.O.P. v.

State, 2013 Ark. App. 667.

Hubbard’s first argument on appeal is that the circuit court failed to make findings

under section 9-27-318(g)(1). He points out that the subsection requires the court to make

a finding on the “seriousness of the alleged offense and whether the protection of society

requires prosecution in the criminal division of circuit court.” However, he asserts that the

circuit court made a finding only on the seriousness of the offense and did not address

whether the protection of society requires prosecution in the criminal division. Specifically,

the court found that “[t]he offenses charged, one count each battery in the first degree,

terroristic act—occupiable structure, aggravated assault, and possession of a handgun by a

minor—are serious offenses.” Hubbard further claims that the testimony at the hearing

showed that the juvenile division has programs to ensure the protection of society.

We hold that Hubbard has not established a reversible error on this point. Hubbard

did not raise the section 9-27-318(g)(1) issue to the circuit court, and this court has declined

to address the technical, statutory noncompliance of a circuit court’s order when the

appellant failed to make a timely request or objection that would have enabled the circuit

court to correct the alleged deficiency. J.A.C. v. State, 2013 Ark. App. 513; Williams v.

State, 96 Ark. App. 160, 239 S.W.3d 44 (2006). Further, even though the testimony showed

that the juvenile division has programs that may ensure the protection of society, the State

also presented testimony that Hubbard had participated in the Arkansas Dream Center

program but had nevertheless later engaged in criminal activity. Accordingly, we affirm on

this point.

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Hubbard next argues that the circuit court’s finding that his culpability appeared

equal to that of the other individual involved is clearly erroneous. He points out that

Detective Lundy testified that Pablo Laredo could not identify which individual had actually

shot him and that his mother testified that he is immature and submits to peer pressure.

We disagree and hold that the circuit court did not clearly err in finding that

Hubbard’s culpability equaled that of his accomplice’s. The evidence showed that Hubbard

is sixteen years old and has a delinquent history. Further, Lundy testified that Pablo

recounted that both Hubbard and the second individual had guns. Moreover, even though

there was testimony that Hubbard is a follower, the circuit court could weigh that testimony

against the circumstances surrounding the charges and Hubbard’s past criminal conduct.

Accordingly, we hold that the circuit court’s finding was not clearly erroneous.

Hubbard lastly argues that the circuit court’s finding that the resources available to

him are not likely to rehabilitate him prior to his twenty-first birthday is clearly erroneous.

He points out that the court found that “[t]here are facilities and programs available to the

Defendant through the juvenile division of the Pulaski County [C]ircuit Court, but the Court

finds they are not likely to rehabilitate the Defendant.” (Emphasis added.) He asserts that

section 9-27-318(g)(7) requires the court to consider “[w]hether there are facilities or

programs available to the judge of the juvenile division of circuit court.” (Emphasis added.)

He claims that the judge of the juvenile division is not limited to the programs in the juvenile

court. He further claims that the finding is clearly erroneous because there was evidence of

an array of services that could rehabilitate him.

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We disagree and hold that the circuit court did not clearly err in finding that the

resources available are not likely to rehabilitate Hubbard. Hubbard again failed to raise the

statutory-noncompliance issue to the circuit court. Accordingly, the issue is not preserved

for our review. See J.A.C., 2013 Ark. App. 513. Further, even though there was evidence

of rehabilitative services, the testimony also showed that Hubbard had received services in

the past but later engaged in criminal conduct. Accordingly, we find no error on this point.

Therefore, we affirm the circuit court’s denial of Hubbard’s motion to transfer his case to

the juvenile division of the circuit court.

Affirmed.

MURPHY and BROWN, JJ., agree.

Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.

Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.

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