Summary 2011 WY 151

Summary of Decision November 7, 2011


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Case Name: Hagerman v. State

Citation: 2011 WY 151

Docket Number: S-11-0154, S-11-0155

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464749

Appeal from the District Court of Fremont County, Honorable Norman E. Young, Judge

Representing Appellant (Defendant): Ryan J. Hagerman, Pro se.

Representing Appellee (Plaintiff): Gregory A. Phillips, 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: November 7, 2011

Facts: The appellant challenges the district court’s denials of motions to correct illegal sentences that he filed in two unrelated, but temporally overlapping, cases. He was first sentenced in a burglary case (S-11-0154), and was later sentenced in a stolen property case (S-11-0155).

Issues: Whether the sentence in either or both cases illegal because the appellant was not given the proper amount of credit for presentence confinement.

Holdings: A sentence that does not include proper credit constitutes an illegal sentence. The law is clear that defendants are entitled to sentencing credit for the time they spend in presentence confinement if that confinement was due to the financial inability to post bond in regard to the charged offense. In addition, a probationer is entitled to credit for time spent in an inpatient treatment facility, if he is subject to a charge of escape while there because he is in “official detention.” Furthermore, if a petition for revocation has been filed and the probationer is in custody, where pre-revocation time is attributable to the underlying criminal charge, credit must be awarded against the underlying sentence. In cases where concurrent sentences have been imposed in a single case, the defendant is entitled to have credit for time served applied equally against both sentences, but this principle does not apply where a defendant is serving concurrent sentences imposed in separate cases.

Application of these rules of law to the facts sub judice leads to the following conclusions:

1. The appellant was entitled to credit against the burglary sentence for the 350 days in the county jail between arrest and sentencing, for the eight days in the county jail following sentencing, and for the 301 days in residential treatment, for a total of 659 days.

2. The appellant was entitled to credit for 33 days in the county jail pending probation revocation upon the three petitions, with such credit applied against either, but not both of the sentences.

3. The appellant was not entitled to any credit for time served against the stolen property sentence, except for any portion of the probation revocation jail time mentioned assigned to that sentence.

The appellant was entitled to credit for time served in the burglary case (No. S-11-0154) in the amount of at least 659 days. He was given credit for only 385 days, so this sentence was illegal. The appellant was not entitled to any credit for time served in the stolen property case (No. S-11-0155), except for whatever portion of the probation revocation jail time that may have been assigned to that sentence, yet he was given credit for 358 days served. A credit “overage,” however, does not make a sentence illegal, and the receipt of that credit has not been challenged in this appeal.

The sentence in S-11-0154 is illegal because the appellant was not given credit against that sentence for time served for the period he was in official detention while in the residential treatment facility. The sentence in S-11-0155 was not rendered illegal by the fact that the appellant was given credit against that sentence to which he was not “entitled.” Consequently, S-11-0154 is remanded to the district court for entry of a sentence consistent with this opinion, and S-11-0155 is affirmed.

J. Voigt delivered the opinion for the court.

J. Burke specially concurring. Appellant was entitled to credit against his burglary sentence for the time spent in the residential treatment center. The decision to grant or deny credit against the stolen property sentence was properly within the district court’s sentencing discretion.