Summary 2009 WY 142

Summary of Decision issued November 19, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Swain v. State

Citation: 2009 WY 142

Docket Number: S-08-0280

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge.

Representing Appellant Swain: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel, Wyoming Public Defender Program.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Swain appealed the district court’s order denying him credit for time served on three separate probation revocation actions. He also appealed his conviction for indirect criminal contempt arising from his failure to comply with the district court’s order requiring him as a condition of probation to attend and complete an inpatient substance abuse treatment program.

Sentencing credit: Swain contended that his sentence was illegal because the district court did not give him credit for the time he served on the three probation revocation actions. The Court relied on Jackson v. State where it held that time spent in custody awaiting disposition of probation revocation proceedings must be credited against the probationer’s underlying sentence if the incarceration is directly attributable to the underlying criminal conviction. Like Jackson, the sole basis for Swain’s detention in each of the revocation proceedings was the accusation he had violated one or more conditions of his probation. No additional criminal charges were filed against Swain based on the alleged violations, and the justification for revoking probation was basically that Swain absconded from supervision and failed to report to and complete the Cheyenne Transitional Center’s program and the Cheyenne Transitions Residential Program. The Court also concluded that the time spent in custody pending resolution of the three revocation proceedings was directly attributable to his underlying battery conviction and consequently, he was entitled to credit against the underlying three-five year prison sentence.
Criminal contempt conviction: The Court focused on a procedural error in the contempt proceeding. Wyoming endorsed the Gompers “independent and separate proceeding” rule for indirect criminal contempt actions in Garber v. United Mine Workers of America. Proceedings in criminal contempts are independent criminal actions and should be conducted accordingly. The criminal contempt against Swain was not pursued as an independent criminal action. It proceeded as an aspect of the underlying criminal case in which the contempt arose bearing the same docket number as that case. This procedural misstep mandated the conclusion that the jurisdiction of the district court was never properly invoked.

Conclusion: The Court held that Swain was entitled to credit against his penitentiary sentence for the time he was detained pending resolution of the three probation revocation proceedings. The Court also held that his conviction for indirect criminal contempt cannot be sustained because the district court lacked jurisdiction over the contempt action.

Reversed and remanded.

J. Golden delivered the decision.

Link: Access is currently limited to the Judiciary website link located here: http://www.courts.state.wy.us/Opinions.aspx .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]