Summary 2011 WY 44

Summary of Decision March 10, 2011

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Case Name: Crosby v. State

Citation: 2011 WY 44

Docket Number: S-10-0153

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461810


Original Proceeding Certified Questions from the District Court of Campbell County, Honorable John R. Perry, Judge

Representing Appellant (Defendant): Diane Lozano, State Public Defender, PDP; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General.

Date of Decision: March 10, 2011

Facts: The circuit court imposed a sentence on Appellant that exceeded the maximum authorized by the relevant statute. After serving part of the sentence in the community corrections facility where he had been placed, Appellant left without authorization. He was charged with escape and claims the charge is improper because he was serving an illegal sentence at the time he left the facility.

Certified Questions:

1. Whether the original sentence was void ab initio in its entirety, or is it an illegal sentence subject to correction under Rule 35(a), Wyoming Rules of Civil Procedure?

2. Given that the escape charge in the above-captioned matter was filed at a time when the sentence was illegal, is it proper to continue the prosecution of the Defendant for escape, should this Court find that the original sentence was illegal and subject to correction?

Answers: The first part of question 1 is answered “no”; the original sentence was not void ab initio in its entirety. The second part of question 1 is answered “yes”; the original sentence was subject to correction under W.R.Cr.P. 35(a). The answer to the second question is “yes”; it was proper to continue the prosecution of Appellant for escape.

Holdings: Wyoming law is clear that when part of a divisible sentence is illegal or improper, it may be modified by vacating or striking that part which is illegal or improper and affirming the balance. When a district court exceeds its sentencing authority and the sentence is divisible, the Supreme Court has the option of remanding for resentencing or simply mandating that the illegal portion be stricken. In the present action, the circuit court was authorized to sentence Appellant to a maximum sentence of six months. It was not authorized to sentence him to serve more than six months. The term of imprisonment up to six months is affirmed and the remainder is stricken. However, Appellant had not yet served six months and was properly incarcerated when he allegedly escaped from the correctional facility. At the time he escaped, he was lawfully confined. Thus, the prosecution for the escape charge may continue.

C.J. Kite delivered the opinion for the court.