Hubbard v. State

321 So.3d 8

Michael Gregory HUBBARD

v.STATE of Alabama

CR-16-0012

Court of Criminal Appeals of Alabama.

August 27, 2018

Rehearing Denied September 28, 2018

William J. Baxley, Joel E. Dillard, and David McKnight of Baxley, Dillard, McKnight, James & McElroy, Birmingham; Sam Heldman of The Gardner Firm, Washington, D.C.; R. Lance Bell of Trussell Funderburg Rea & Bell, PC, Pell City; and Philip E. Adams, Jr., and Blake Oliver of Adams White Oliver Short & Forbus LLP, Opelika, for appellant.

Steve Marshall, atty. gen., and Miles M. Hart and Michael B. Duffy, deputy attys. gen., and Megan A. Kirkpatrick, asst. atty. gen., for appellee.

WELCH, Judge.

Michael Gregory Hubbard, the former Speaker of the Alabama House of Representatives, was indicted by a special grand jury on 23 charges related to the alleged abuses of the official position or public office he occupied at the time of the offenses. Hubbard was tried by a jury and was convicted of 12 counts -- Counts 5, 6, 10-14, 16-19, and 23. The trial judge sentenced Hubbard to several terms of imprisonment. Hubbard appeals. We affirm as to 11 counts and reverse and render a judgment as to 1 count.

Summary of Counts and Sentences

Count 5 charged that Hubbard violated § 36-25-5(b), Ala. Code 1975, by intentionally voting for legislation -- Senate Bill 143 of the 2013 Regular Legislative Session -- when he knew or should have known that he had a conflict of interest. The trial court imposed a sentence of 10 years' imprisonment on Hubbard's conviction for that offense; that sentence was split, and Hubbard was ordered to serve 2 years, followed by 8 years' probation. The trial court ordered Hubbard to pay a $30,000 fine, court costs, a $350 bail-bond fee, and a $500 victims compensation assessment.

Count 6 charged that Hubbard, a public official, violated § 36-25-5.1(a), Ala. Code 1975, by intentionally soliciting or receiving a thing of value, i.e., currency or checks, from a principal, American Pharmacy Cooperative, Inc. ("APCI"). The trial court imposed a sentence of 10 years' imprisonment on Hubbard's conviction for that offense; that sentence was split, and Hubbard was ordered to serve 2 years, followed by 8 years' probation, that sentence to run concurrently with Count 5. The trial court ordered Hubbard to pay a $30,000 fine, court costs, and a $500 victims compensation assessment.

Count 10 charged that Hubbard, a public official, violated § 36-25-5.1(a), Ala. Code 1975, by intentionally soliciting or receiving a thing of value, i.e., currency or checks, from a principal, Edgenuity, Inc., and/or E2020, Inc. The trial court imposed a sentence of 6 years' imprisonment; that sentence was split, and Hubbard was ordered to serve 18 months, followed by 4 years' probation, that sentence to run concurrently with the sentences on all other counts. The trial court ordered Hubbard to pay a $30,000 fine, court costs, and a $500 victims compensation assessment.

Count 11 charged that Hubbard used his official position or office to obtain personal gain, i.e., currency or checks, from Robert Abrams d/b/a CV Holdings, LLC, for himself, or a business with which Hubbard was associated, Auburn Network, when such use and gain were not otherwise specifically authorized by law, in violation of § 36-25-5(a), Ala. Code 1975. The trial court imposed a sentence of 10 years' imprisonment; that sentence was split, and Hubbard was ordered to serve 2 years, followed by 8 years' probation, this sentence to run concurrently with the sentences imposed for Counts 12, 13, and 14 and consecutively with those imposed for Counts 5 and 6. The trial court also ordered Hubbard to pay a $30,000 fine, court costs, and a $500 victims compensation assessment.

Count 12 alleged that Hubbard, a public official, violated § 36-25-1.1, Ala. Code 1975, intentionally, by representing Robert Abrams d/b/a CV Holdings, LLC, before an executive department or agency, the Alabama Department of Commerce, for compensation in addition to that received in his official capacity. The trial court imposed a sentence of 10 years' imprisonment; that sentence was split, and Hubbard was ordered to serve 2 years, followed by 8 years' probation, the sentence to run concurrently with the sentences for Counts 11, 13, and 14, and consecutively to the sentences imposed for Counts 5 and 6. The trial court also ordered Hubbard to pay a $20,000 fine, court costs, and a $500 victims compensation assessment.

Count 13 charged that Hubbard, a public official, violated § 36-25-1.1, Ala. Code 1975, intentionally, by representing Robert Abrams d/b/a CV Holdings, LLC, before the Alabama Governor for compensation in addition to that received in his official capacity. The trial court imposed a sentence of 10 years' imprisonment; that sentence was split to serve 2 years, followed by 8 years' probation, the sentence to run concurrently with the sentences imposed for Counts 11, 12, and 14, and consecutively to the sentences imposed for Counts 5 and 6. The trial court also ordered Hubbard to pay a $30,000 fine, court costs, and a $500 victims compensation assessment.

Count 14 charged that Hubbard, a public official, violated § 36-25-5(c), Ala. Code 1975, because he intentionally used, or caused to be used, time and/or labor -- his own and that of his chief of staff, Josh Blades -- for his private benefit, specifically, that Hubbard received payment, i.e., currency or checks, from Robert Abrams, and the payment materially affected his financial interest in a way not otherwise provided by law. The trial court imposed a sentence of 10 years' imprisonment; that sentence was split to serve 2 years, followed by 8 years' probation, the sentence to run concurrently with the sentences imposed for Counts 11, 12, and 13, and consecutively to the sentences imposed for Counts 5 and 6. The trial court also ordered Hubbard to pay a $30,000 fine, court costs, and a $500 victims compensation assessment.

Count 16 charged that Hubbard, a public official, violated § 36-25-5.1(a), Ala. Code 1975, by intentionally soliciting or receiving a thing of value, i.e., a $150,0000 investment in Craftmaster Printers, from a principal, Will Brooke, a board member of the Business Council of Alabama ("BCA"). The trial court imposed a sentence of 5 years' imprisonment; that sentence was split, and Hubbard was ordered to serve 18 months, followed by 3 1/2 years' probation, the sentence to run concurrently with all other counts. The trial court also imposed court costs and a $100 victims compensation assessment.

Count 17 charged that Hubbard, a public official, violated § 36-25-5.1(a), Ala. Code 1975, by intentionally soliciting or receiving a thing of value, a $150,0000 investment in Craftmaster Printers, from a principal, James Holbrook and/or Sterne Agee Group, Inc. The trial court imposed a sentence of 10 years' imprisonment; that sentence was split, and Hubbard was ordered to serve 2 years, followed by 8 years' probation, the sentence to run concurrently with all other counts. The trial court also ordered Hubbard to pay a $20,000 fine, court costs, and a $500 victims compensation assessment.

Count 18 charged that Hubbard, a public official, violated § 36-25-5.1(a), Ala. Code 1975, intentionally soliciting or receiving a thing of value, a $150,0000 investment in Craftmaster Printers, from a principal, Jimmy Rane, president of Great Southern Wood. The trial court imposed a sentence of 5 years' imprisonment; that sentence was split, and Hubbard was ordered to serve 18 months, followed by 3 1/2 years' probation, the sentence to run concurrently with all other counts. The trial court also ordered Hubbard to pay court costs and a $100 victims compensation assessment.

Count 19 charged that Hubbard, a public official, violated § 36-25-5.1(a), Ala. Code 1975, by intentionally soliciting or receiving a thing of value, a $150,0000 investment in Craftmaster Printers, from a principal, Robert Burton, president of Hoar Construction. The trial court imposed a sentence of 5 years' imprisonment; that sentence was split, and Hubbard was ordered to serve 18 months, followed by 3 1/2 years' probation, the sentence to run concurrently with all other counts. The trial court also ordered Hubbard to pay court costs and a $100 victims compensation assessment.

Count 23 charged that Hubbard, a public official, violated § 36-25-5.1(a), Ala. Code, by intentionally soliciting or receiving a thing of value, assistance with obtaining new clients for Auburn Network and/or financial advice regarding Craftmaster Printers, from a principal, Will Brooke, a board member of the BCA. The trial court imposed a sentence of 5 years' imprisonment; that sentence was split, and Hubbard was ordered to serve 18 months, followed by 3 1/2 years' probation, the sentence to run concurrently with all other counts. The trial court also ordered Hubbard to pay court costs and a $100 victims compensation assessment.

The trial court denied the State's request for restitution. Hubbard timely filed a motion for a new trial, which was denied by operation of law. This appeal follows.

Statement of the Facts

Hubbard was elected to the Alabama House of Representatives in 1998, and in 2004 he became the minority leader in the House. He was later named the chairman of Alabama Republican Party. Hubbard and other key members of the Republican Party created a plan to overturn the Democratic majority in both houses of the Alabama Legislature, and in November of 2010 the plan came to fruition. Part of the Republican platform was called the "Handshake with Alabama," which was described as a policy agenda the Republican candidates pledged to promote when they were elected, and ethics reform was part of the Handshake with Alabama. In December 2010, Governor Bob Riley called a Special Session of the Alabama Legislature, and the legislature passed a number of bills intended to strengthen the ethics laws. Hubbard was elected Speaker of the House during that Special Session, and ...