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Hibsman v. State

Supreme Court of Wyoming

September 15, 2015

JASON TODD HIBSMAN, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff)

Appeal from the District Court of Natrona County. The Honorable Catherine E. Wilking, Judge.

Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Patricia L. Bennett, Assistant Appellate Counsel. Argument by Ms. Bennett.

Representing Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Joshua C. Eames, Assistant Attorney General. Argument by Mr. Eames.

Before BURKE, C.J., and KITE[*], DAVIS, and FOX, JJ, and KAUTZ, D.J.[**]

OPINION

Page 1241

BURKE, Chief Justice.

[¶1] Appellant, Jason Todd Hibsman, challenges his conviction of larceny by bailee in violation of Wyo. Stat. Ann. § 6-3-402. He claims he received ineffective assistance of counsel and that the district court abused its discretion in awarding restitution in the amount of $127,208.10. We conclude Mr. Hibsman did not receive ineffective assistance of counsel, and we affirm his conviction. However, we remand to the district court for entry of an order reducing the amount of restitution.

ISSUES

[¶2] Appellant presents the following issues:

1. Whether Mr. Hibsman's defense counsel was ineffective, denying him the constitutionally guaranteed right to effective assistance of counsel.
2. Whether the district court abused its discretion in ordering Mr. Hibsman to pay restitution in the amount of $127,208.10.

The State phrases the issues in a similar manner.

Page 1242

FACTS

[¶3] Mr. Hibsman's father, John H. Hibsman, Jr., died testate on June 22, 2008. The will divided his estate, which consisted primarily of two houses, located in Casper, Wyoming, as well as some personal property and stocks, equally among his four children. In December 2008, the will was admitted to probate and, consistent with the will, Mr. Hibsman was appointed personal representative of his father's estate. After his appointment, Mr. Hibsman hired attorney Michael Zwickl to represent him. Mr. Hibsman did not, at any point, file an initial inventory or appraisal of the estate assets as required under Wyo. Stat. Ann. § § 2-7-403 and-404. The two houses held by the estate were sold in April and October 2009.

[¶4] On October 18, 2010, nearly two years after he was appointed as personal representative of the estate, Mr. Hibsman filed a " Final Report, Accounting and Petition for Distribution." That report represented the value of the estate to have been $478,894.94 at the time of the decedent's death. The report stated that total expenditures from the estate had amounted to $358,466.26. Of those expenditures, Mr. Hibsman claimed that $112,594.80 was paid for " Home Improvement & Repair/Labor," $26,170.65 was paid for " Hotel/Food/Gas for Jason," and 25,500.00 was paid for " Out of Pocket Expense reimbursed to Jason."

[¶5] Mr. Hibsman's sister filed an objection to the final report in November and the matter was set for hearing. Following the hearing, the probate court removed Mr. Hibsman as personal representative of the estate and appointed Mr. Zwickl to serve as temporary personal representative. The court froze the estate's bank account and prohibited transfers of estate assets or property. The court also ordered Mr. Hibsman to deliver " all documentation of the Estate" to Mr. Zwickl, including receipts showing all estate expenditures, a detail of all labor expenses, and an account of Mr. Hibsman's time and services as personal representative. In response to the court's order, Mr. Hibsman filed an " Inventory of Estate" in January 2011 which valued the " total inventory" of the estate at $411,111.50.

[¶6] In December 2010, attorney Robert Mullen was appointed as personal representative of the estate. At the time Mr. Mullen took possession of the estate's bank account, it contained $99,067.59. Following his appointment as personal representative, Mr. Mullen issued a report to the probate court concluding that Mr. Hibsman's inventory of the estate assets was incomplete and that, for nearly two years after being appointed personal representative, Mr. Hibsman had distributed assets of the estate and paid estate funds to himself without court approval and " without intelligible justification." Mr. Mullen also reported the discrepancies in Mr. Hibsman's accounting to the Casper Police Department. Following an investigation, the State charged Mr. Hibsman with one count of felony larceny by bailee in violation of Wyo. Stat. Ann. § § 6-3-402(b) and (c)(i) (LexisNexis 2011).[1]

[¶7] During the course of its investigation, the State obtained letters from Mr. Zwickl to Mr. Hibsman (the " Zwickl letters" ) relating to Mr. Hibsman's obligations as personal representative of the estate.[2] The first of those letters, dated March 17, 2010, indicated that Mr. Zwickl had advised Mr. Hibsman that he could not make distributions from ...


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