Summary 2011 WY 73

Summary of Decision April 27, 2011

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Case Name: Center v. State

Citation: 2011 WY 73

Docket Number: S-10-0211

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462050

Appeal from the District Court of Campbell County, Honorable John R. Perry, Judge

Representing Appellant (Defendant): Diane E. Courselle, Defender Aid Program, University of Wyoming College of Law; and Shannon McDonald, Student Intern.

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

Date of Decision: April 27, 2011

Facts: Appellant entered a plea of nolo contendere to the crime of aggravated assault and battery. Judgment was entered on that plea and sentence and a Mittimus were entered. The sentence imposed was incarceration for a period of 36 to 80 months and no mention was made of probation. The execution of the sentence was, in essence, conditionally stayed pending Appellant’s admission to an alcohol treatment program. Appellant was granted a “furlough” for that purpose. The district court made it very clear that if Appellant did not succeed at the treatment program, he would be remanded to the Department of Corrections, “no hearing, no nothing.” Appellant failed at the program and was transferred without a hearing to the County Detention Appellant, and then to the custody of the Department of Corrections. Appellant appeals from an order of the district court denying his motion to correct an illegal sentence. He contends that the district court sent him from an alcohol treatment center to the state penitentiary, in a manner that violated his constitutional rights (due process of law).

Issues: Whether the district court was in error by sending Appellant directly to prison, without holding either a preliminary or final probation revocation hearing, in violation of the Fourteenth Amendment’s Due Process Clause and Wyo. Const. art. 1, § 6. Whether the district court improperly imposed a sentence providing for a later revocation by non-judicial personnel, in violation of the Fourteenth Amendment’s Due Process Clause and Wyo. Const. art. 1, § 6.

Holdings: Sentencing decisions are normally within the discretion of the trial court. Such discretion is limited, however, inasmuch as a court may not enter an illegal sentence. A sentence is illegal if it violates the constitution or other law. W.R.Cr.P. 35(a) allows a court to correct an illegal sentence at any time. However, claims brought pursuant to W.R.Cr.P. 35(a) are subject to the principles of res judicata. The res judicata doctrine applies when a defendant could have raised such an issue in an earlier appeal or motion for sentence reduction but did not do so. In the present action, Appellant did not appeal the judgment and sentence imposed by the district court at the time it was imposed. Additionally, in a later pleading filed in the district court, Appellant filed a “Motion for Reduction of Sentence,” but did not challenge the sentence itself. Appellant then filed a “Petition for Writ of Review” which was denied. Subsequently, the district court entered an order denying Appellant’s motion for correction of illegal sentence and Appellant filed a timely notice of appeal. Appellant’s sentence was not illegal and, when viewed in its entirety and in the unusual context of this case, he was not denied due process of law.

The sentence imposed by the district court was unusual and, perhaps, ill-advised. However, the record on appeal does not show circumstances that render it an “illegal” sentence. The order of the district court denying Appellant’s motion to correct an illegal sentence is remanded to the district court for the purpose of amending the disputed sentence so as to credit Appellant for all time served in connection with his detention at alcohol treatment center. The sentence is otherwise affirmed.

J. Hill delivered the opinion for the court.

J. Voigt, joined by J. Burke, dissented. A statute or court rule cannot be located with grants authority to a district court to impose a prison sentence, stay execution of that sentence, release the defendant with conditions, but not on probation, have that release revoked without a hearing, and not give credit for time served at a facility where the defendant was subject to a charge of escape. A sentence that imposes a punishment not authorized by the legislature is illegal.