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Hubbard v. State

Court of Appeals of Arkansas, Division II

November 29, 2017

SHUANDRELL HUBBARD APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FOURTH DIVISION [NO. 60CR-16-3702] HONORABLE HERBERT T. WRIGHT, JR., JUDGE

          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.

          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 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 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 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 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 ...


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