IN THE SUPREME COURT, STATE OF WYOMING
2013 WY 125
OCTOBER TERM, A.D. 2013
October 10, 2013
JERELE CRAIG COTHREN, JR.,
Appellant
(Defendant),
v. S-12-0270
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Natrona County
The Honorable David B. Park, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, State Public Defender; Tina
N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate
Counsel. Argument by Mr. Alden.
Representing Appellee:
Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy
Attorney General; Theodore R. Racines, Senior Assistant Attorney General;
Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
DAVIS, Justice.
[¶1] Appellant Jerele Cothren returns to this Court to challenge an amended judgment
and sentence issued by the District Court for the Seventh Judicial District following
remand for resentencing. We find that the sentence imposed on remand is still illegal for
reasons discussed below, and reverse and remand for entry of an amended sentence.
ISSUES
[¶2] Cothren raises four issues, which we restate as follows:
1. Did the district court abuse its discretion in refusing to
allow Cothren to withdraw his guilty plea?
2. Did the district court err when it declined to
retroactively reject the plea agreement it had accepted two
years earlier, and to sentence Cothren anew while holding the
State to its agreement to dismiss thirteen of fourteen charges?
3. Did the district court err by attempting to cure the
illegality of Cothren’s sentence without adjusting its length
on the basis of his efforts to reform himself while in prison?
4. Did the district court improperly grant Cothren credit
for time served or otherwise impose an illegal sentence?
FACTS
[¶3] As we noted in Cothren’s first appeal, Cothren v. State, 2012 WY 102, 281 P.3d
352 (Wyo. 2012) (Cothren I), the sentence in this case is one of four imposed for
unrelated crimes by three district courts between 2007 and 2010. In 2007, he was
sentenced to two to four years of incarceration on a conviction for larceny by bailee in
Natrona County. The Natrona County district court suspended Cothren’s term of
incarceration in favor of three years of supervised probation. Id. at ¶ 3, 281 P.3d at 353-
54. In early 2009, the district court in Sheridan County sentenced him to seven
concurrent prison terms of five to eight years for six counts of forgery and one count of
identity theft. Id.
[¶4] Later that year, Cothren was sentenced to a two-to-five-year term of imprisonment
for livestock rustling in Platte County, which the district court there suspended in favor of
a term of five years of supervised probation, which was to begin after Cothren served the
Sheridan County sentence. In May of 2010, his probation in the first Natrona County
case was revoked and the district court imposed the term of two to four years of
1
imprisonment which had been suspended. Id. As discussed below, although the record is
not clear, the parties agree that the sentence on the first Natrona County case was to run
consecutively to the Sheridan County case after probation was revoked.
[¶5] On August 6, 2010, the Natrona County District Court sentenced Cothren to a
term of eight to ten years imprisonment for forgery. The court ordered that sentence to
run concurrently with the Sheridan County sentence and consecutively to the sentence in
the first Natrona County case and the Platte County sentence. Id.
[¶6] The judgment and sentence in Cothren’s present case, the second Natrona County
conviction, was filed on May 3, 2011. On June 20, 2011, Cothren filed a motion asking
the district court to correct his sentence, which he claimed was illegal. In his motion, and
at the hearing on that motion, he suggested that the sentences in both the first Natrona
County case and the Platte County case were to run consecutively to the Sheridan County
sentence. He argued that the second Natrona County sentence could not simultaneously
be consecutive to the first Natrona County sentence and concurrent with the Sheridan
County sentence, and that the second Natrona County sentence could not simultaneously
be concurrent with the imposed Sheridan County sentence and consecutive to the
probationary period of the Platte County sentence. Id. at ¶ 5, 281 P.3d at 354. Cothren
abandoned the first argument and proceeded solely on the second in his appeal from the
denial of that motion, and this Court limited its consideration to that issue in Cothren I.
[¶7] We remanded the case to the district court to correct a sentence that we held to be
illegal in two respects. It was impossible to serve that sentence both concurrently with
the Sheridan County sentence and consecutively to the Platte County probation that was
consecutive to the Sheridan County sentence, and it was unlawful to have Cothren serve
his second Natrona County sentence in two installments separated by the Platte County
probation. Id. at ¶ 14, 281 P.3d at 357.
[¶8] Cothren moved to withdraw his guilty plea, which would effectively negate what
the parties regard as a plea based on a joint sentencing recommendation under W.R.Cr.P.
11(e)(1)(B). The plea agreement resulted in the dismissal of thirteen additional felony
forgery counts. However, Cothren’s counsel asked the district court to treat his existing
guilty plea to one count of forgery as a “cold plea,” or a plea made without a plea
agreement. This might arguably allow Cothren to keep the benefit of the plea agreement
(the dismissal of thirteen felony charges), while permitting him to argue for a lesser
sentence on the one remaining count.
[¶9] Cothren also requested an updated presentence investigation report which he
anticipated would reflect successful efforts at rehabilitation while in prison. The district
court declined to order an updated presentence investigation, but it allowed Cothren to
testify as to his rehabilitation at the resentencing hearing. It also allowed Cothren to call
his sister, the victim of the forgery, to testify in favor of probation.
2
[¶10] The record reflects that the district judge in Natrona County was advised by the
district judge in Platte County that he had discharged Cothren from his Platte County
probation before the resentencing hearing. 1 Cothren also testified that he had been
paroled from his Sheridan County sentence to serve the incarceration required by his first
Natrona County sentence.
[¶11] The district court declined to allow Cothren to withdraw his guilty plea, noting
that it could not rationally hold the State to the dismissal of thirteen felonies while
leaving him free to argue for a lesser sentence. It expressed its appreciation for Cothren’s
efforts at rehabilitation, but imposed a sentence of not less than eight nor more than ten
years of incarceration, which was the same term of confinement as in the original
sentence. The sentence was to run concurrently with the Sheridan County sentence and
consecutively to the first Natrona County conviction, as had been the case under the first
sentence. The court awarded Cothren 680 days of credit against his sentence for a period
commencing at the time it imposed the original sentence in this case on August 6, 2010.
This appeal was timely perfected.
DISCUSSION
Denial of Motion to Withdraw Guilty Plea
[¶12] The standard that district courts must apply when ruling on motions to withdraw
guilty pleas is set forth in W.R.Cr.P. 32(d):
If a motion for withdrawal of a plea of guilty or nolo
contendere is made before sentence is imposed, the court may
permit withdrawal of the plea upon a showing by the
defendant of any fair and just reason. At any later time, a plea
may be set aside only to correct manifest injustice.
We review a district court’s determination of a motion to withdraw a guilty plea for an
abuse of discretion. McCard v. State, 2003 WY 142, ¶¶ 7-8, 78 P.3d 1040, 1042-43
(Wyo. 2003). When conducting this inquiry, this Court focuses on the reasonableness of
the district court’s conclusion and whether it was based on “sound judgment with regard
to what is right under the circumstances.” Jackson v. State, 2012 WY 56, ¶ 6, 273 P.3d
1105, 1107 (Wyo. 2012). The district court’s ruling will not be disturbed unless some
part of it is arbitrary and capricious. Id.
1
The order implementing the Platte County district court’s decision is not contained in the record, but the
parties do not dispute that Cothren was released from probation. The parties also appear to agree that the
effect of the decision was to free Cothren from the threat of further incarceration on that sentence, an
issue which we therefore do not find necessary to explore in this opinion.
3
[¶13] Appellant argues that the Court should apply the presentencing “any fair and just
reason” standard because he believes that there was no sentence after the case was
remanded. The State argues that the post-sentence “manifest injustice” standard applies.
We decline to engage in a detailed analysis of this issue, as the district court’s decision
can be affirmed under either standard.
[¶14] The most obvious problem with Cothren’s effort to “withdraw” his guilty plea is
that he did not actually ask the Court to do that at the hearing on the motion. Cothren did
file a written motion seeking to withdraw his plea because the plea bargain could not be
performed. However, at the scheduled sentencing hearing, his attorney indicated that
“[w]hat we would like to do is essentially consider this entire situation as a cold plea
now; that his guilty plea would stand; that – and I think especially in light of the recent
changes that just occurred, that it would make sense to order a new Presentence
Investigation Report on Mr. Cothren.”
[¶15] In other words, Cothren asked to maintain his guilty plea, which he evidently
believed would allow him to argue for a shorter sentence than the one he had agreed to,
while also preventing the State from refiling the thirteen felony charges it had dismissed.
This was not truly a motion to withdraw a plea of guilty and return to square one, but
rather an effort to keep the benefit of the plea agreement while avoiding its burdens. This
alone would have rendered the trial court’s decision an exercise of sound discretion under
either the “fair and just reason” or “manifest injustice” standard.
[¶16] Cothren also failed to provide a fair and just reason to allow him to withdraw his
plea, and a fortiori, to demonstrate that manifest injustice resulted from the decision to
deny the motion to withdraw his guilty plea. In Osborn v. State, 2012 WY 159, 290 P.3d
1096 (Wyo. 2012), Osborn filed a motion to correct an illegal sentence, which the district
court granted by reducing his sentence without a hearing. Id. at ¶ 7, 290 P.3d at 1098.
Even though Osborn’s request was granted, he appealed, asserting that the district court
erred by not allowing him to withdraw his guilty plea before it modified his sentence. Id.
Osborn argued that because his bargained-for plea was premised on an illegal sentence,
he was entitled to withdraw his guilty plea. Id. at ¶ 18, 290 P.3d at 1100-01.
[¶17] We agreed that a defendant could not bargain for an illegal sentence but held that
Osborn was not entitled to withdraw his guilty plea. Id. at ¶¶ 19-20, 290 P.3d at 1101.
We explained that where a bargained-for guilty plea results in an illegally short sentence,
necessitating resentencing to a longer sentence, a defendant is entitled to withdraw his
plea. Id. However, when the bargained-for guilty plea results in an illegally long
sentence, necessitating a shorter sentence, a defendant is not entitled to withdraw his plea
because the assertion that he would not have pled guilty to receive the shorter sentence is
not credible. Id. We therefore determined that the district court did not abuse its
discretion when it did not allow Osborn to withdraw his plea. Id. at ¶ 22, 290 P.3d at
1101.
4
[¶18] In this case, Cothren not only received the sentence he bargained for, which was
not illegally long, but he was also discharged from probation on his Platte County
sentence, meaning that he eliminated supervision on probation and potential incarceration
which might have resulted from a violation of probation conditions. Beyond that, as
already noted, he got what he really asked for – the court allowed his guilty plea to stand.
The district court therefore did not abuse its discretion in denying Cothren’s motion to
withdraw his plea.
Denial of Request for Presentence Investigation
[¶19] We also apply the abuse-of-discretion standard when we review a district court’s
decision as to whether or not to order an updated presentence investigation report. Davis
v. State, 2005 WY 93, ¶ 51, 117 P.3d 454, 473 (Wyo. 2005) (citation omitted). Cothren
must demonstrate that any purported error was prejudicial and affected his substantial
rights. Id.
[¶20] We find no abuse of discretion in the district court’s failure to order an updated
presentence investigation. The record before us contains a presentence investigation
report from the Platte County case, as well as a post-sentence investigation report related
to this case, both of which were available to the district judge at resentencing. In
addition, the court received testimony from Cothren and his sister, the victim of the
forgery. The court had ample information to arrive at a fair sentence. Refusal to order an
updated presentence investigation is not an abuse of discretion when the sentencing judge
heard evidence of mitigating circumstances before sentencing or when the information
available to the court was not stale, both of which are true here. Arthur W. Campbell,
Law of Sentencing § 10:2, at 466 (3d ed. 2004); People v. Morton, 430 N.E.2d 383, 384
(Ill. App. 1981).
Length of the Sentence
[¶21] Cothren claims that the district court erred when it sentenced him in accordance
with the plea agreement rather than imposing a shorter sentence based on his success in
prison. This Court reviews a district court’s sentencing decision for an abuse of
discretion. Magnus v. State, 2013 WY 13, ¶ 24, 293 P.3d 459, 467-68 (Wyo. 2013). “A
sentence will not be disturbed because of sentencing procedures unless the defendant can
show an abuse of discretion, procedural conduct prejudicial to him, circumstances which
manifest inherent unfairness and injustice, or conduct which offends the public sense of
fair play.” Id. (quoting Joreski v. State, 2012 WY 143, ¶ 10, 288 P.3d 413, 416 (Wyo.
2012)). Cothren must demonstrate that any purported error was prejudicial and affected
his substantial rights. Id.
5
[¶22] Sentencing courts may consider a wide range of factors relevant to the defendant
and his crimes. Magnus, ¶ 25, 293 P.3d at 468. Due process gives defendants a right to
be sentenced on accurate information. Schaeffer v. State, 2012 WY 9, ¶ 51, 268 P.3d
1045, 1061 (Wyo. 2012) (citation omitted).
[¶23] We find no error in the court’s imposition of the same sentence it imposed earlier.
The court explained that it could not justify enforcing the plea agreement against the
State so as to prevent refiling of thirteen felony charges, and yet deviate from it to impose
a lower sentence. It noted that the sentence had been fair when first imposed, and that the
Platte County “dismissal” had removed the problem that led to remand. It also
acknowledged Cothren’s efforts at rehabilitation.
[¶24] There was no abuse of discretion, procedural conduct prejudicial to Cothren,
inherent unfairness or injustice, or conduct which offends the public’s sense of fair play.
Cothren had an extensive criminal history, avoided trial on a number of charges in
Natrona County and elsewhere, and received the sentence he agreed to, with the bonus of
eliminating possible incarceration on the Platte County sentence. This was a fair
resolution to a complex sentencing problem, and not an abuse of discretion.
Credit for Time Served
[¶25] To the extent that Cothren argues that his sentence was illegal due to failure to
grant proper credit for time served, we apply a de novo standard of review. Moronese v.
State, 2012 WY 34, ¶ 5, 271 P.3d 1011, 1013 (Wyo. 2012). Cothren sought for time
served in the penitentiary on his second Natrona County sentence concurrently with the
Sheridan County sentence on remand. He was awarded 680 days of credit,2 but
contended that he should have received 765 days of credit in his opening brief. The State
agreed that Cothren did not receive sufficient credit, but contended that he is entitled to
748 days.
[¶26] In his reply brief, Cothren agreed with the State’s calculation. We believe the
credit discussion exposes an illegal hiatus in Cothren’s service of his sentence, which we
address below. We also believe the manner in which a district court should approach the
determination of time spent in state penal institutions warrants some discussion.
[¶27] District and circuit courts must determine the amount of time a defendant has
spent in presentence confinement when they impose sentence. Hagerman v. State, 2011
WY 151, ¶ 12, 264 P.3d 18, 21 (Wyo. 2011); W.R.Cr.P. 32(c)(2)(E) (the judgment and
sentence must “[i]nclude a finding of all time served by the defendant in presentence
confinement for any sentenced offense”). Presentence confinement is incarceration
2
We approved the determination of time served on a prison sentence in this fashion in Moronese, ¶ 13,
271 P.3d at 1015. We touch on the issue here because of the complications this case presents.
6
resulting from the failure to post bond on the offense for which the sentence is entered,
and does not include “other confinement that would continue to exist without regard” for
the posting of bond on that offense. Sweets v. State, 2001 WY 126, ¶ 5, 36 P.3d 1130,
1131 (Wyo. 2001). In most cases, calculation of the time spent in presentence
confinement requires the court to do no more than determine how long the defendant was
held in county detention pending trial on the offense before the court, or whether he was
serving time on some other sentence and would have been held regardless of ability to
post bond. The defendant receives a day of presentence credit for any part of a day spent
in confinement.
[¶28] The credit granted a defendant sentenced to prison is obviously important because
it reduces the time before which he will be eligible for release on parole as well as
unconditional release from his sentence. As explained by a leading commentator:
Parole is part of an intricate process involving all three
branches of government. In most state jurisdictions, the
legislature establishes the parole system and the range of
possible sentences for a crime. The executive branch
implements the parole system that was established by the
legislative branch. For example, it is not uncommon to find
that state legislatures will require inmates who have
committed certain types of offenses to serve a minimum
mandatory term before becoming eligible for parole. The
legislature may also establish mandatory sentences for certain
crimes, and may prohibit parole altogether in certain types of
cases.
The judiciary determines the appropriateness of prison
in an individual case and the length and nature of the sentence
within the limits set by the legislature. In most states, the
granting of parole is a function reserved exclusively to parole
boards or parole commissions, and the judiciary has no
authority to either grant or deny parole.
1 Neil P. Cohen, The Law of Probation and Parole § 4:1, at 4-3 to 4-4 (2d. ed. 1999)
(footnotes omitted); see also Campbell, supra, § 15:6, at 618.3
3
The use of parole can be traced back at least as far as the use of “tickets-of-leave” prisoners exiled to
new South Wales could earn after serving a portion of their sentences, provided that they met certain
standards of industry and good conduct. The governor of the penal colony determined whether these
standards had been met. Paul F. Cromwell, Jr., et. al., Probation and Parole in the Criminal Justice
System, 155-55 (2d ed. 1985).
7
[¶29] Wyoming is an indeterminate sentencing state that requires courts to prescribe a
minimum and maximum term of confinement when a sentence for a felony is imposed.
Wyo. Stat. Ann. § 7-13-201 (LexisNexis 2013); Daniel M. Fetsco, Early Release from
Prison in Wyoming: An Overview of Parole in Wyoming and Elsewhere and an
Examination of Current and Future Trends, 11 Wyo. L. Rev. 99, 103 (2011). The
Wyoming Legislature granted the Board of Parole almost absolute discretion to decide
whether to release inmates on parole, subject only to restrictions which deny eligibility to
inmates who have escaped from a state penal institution, to those who have committed an
assault with a deadly weapon while an inmate, to those who are serving a life sentence or
a life sentence without possibility of parole, and to those who have been sentenced to
death. Wyo. Stat. Ann. § 7-13-402 (LexisNexis 2013); Fetsco, supra, at 106. When a
sentence is imposed, a defendant is remanded to the custody of the Department of
Corrections, an executive branch department to which the legislature has granted general
supervisory powers over correctional facilities, inmates, and parolees. Wyo. Stat. Ann. §
25-1-104(b), (c) (LexisNexis 2013). Those powers include the authority to administer
sentences.
[¶30] Unlike the case of presentence confinement, a day spent by a well-behaved inmate
in a state correctional institution is worth more than a day of credit. If an inmate has a
“proper and helpful attitude, conduct and behavior in the facility and/or has adhered to
the rules of the facility, the Warden may award up to fifteen (15) days per month for each
month served on a sentence, which will reduce the minimum and maximum sentence to
be served.” Wyo. Dep’t of Corrections Policy and Procedure, Inmate Good Time 1.500
(effective July 1, 2010).4 An inmate cannot receive this “good time” credit until he is
confined in a Department of Corrections facility. Id.
[¶31] In addition to the good time awarded by the DOC, the Board of Parole may award
an inmate who has “demonstrated an especially proper and helpful attitude, exemplary
conduct and behavior” up to one month of special good time off his minimum sentence,
up to a maximum of one year credit. Id. Moreover, the Board may award up to a year
off the minimum sentence for the purpose of allowing parole to an adult community
corrections program or certain treatment programs. Id. An inmate is eligible for parole
when he has served the minimum sentence less good time and special good time
allowances, and of course the length of the period of parole is shortened by good time.
The Board may refuse to award or remove good time and require an inmate like Cothren
to serve his entire minimum sentence before granting parole. Fetsco, supra, at 103, 107-
08. This is called “flattening” a sentence, and it is done when the inmate has not behaved
well enough to earn good time or has done something to lose it. Id.
4
See also Governor’s Office, Good Time Allowances for Inmates and Parolees of the Wyoming
Department of Corrections (effective July 1, 2010).
8
[¶32] As the foregoing demonstrates, the actual length of a sentence served depends on
an inmate’s conduct as well as the length of time spent in a correctional institution. This
can lead to double jeopardy concerns about the grant of credit when a defendant is
resentenced, or when his sentence is vacated and he is either convicted on the same
charge or pleads guilty to it. In North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072,
23 L. Ed. 2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794,
109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989), the United States Supreme Court held as
follows:
And [the double jeopardy clause] protects against multiple
punishments for the same offense. This last protection is what
is necessarily implicated in any consideration of the question
whether, in the imposition of sentence for the same offense
after retrial, the Constitution requires that credit must be
given for punishment already endured. The Court stated the
controlling constitutional principle almost 100 years ago, in
the landmark case of Ex parte Lange, 18 Wall. 163, 168, 21
L.Ed. 872:
If there is anything settled in the jurisprudence of
England and America, it is that no man can be twice
lawfully punished for the same offence. And * * *
there has never been any doubt of (this rule’s) entire
and complete protection of the party when a second
punishment is proposed in the same court, on the same
facts, for the same statutory offense.
. . .
We hold that the constitutional guarantee against
multiple punishments for the same offense absolutely requires
that punishment already exacted must be fully “credited”13 in
imposing sentence upon a new conviction for the same
offense.
. . .
9
13
Such credit must, of course, include the time credited
during service of the first prison sentence for good
behavior, etc.[5]
Id. at 717-19 & n.13, 89 S. Ct. at 2076-77 & n.13 (some footnotes omitted).
[¶33] We believe it is appropriate to include a determination of the time actually spent in
prison prior to resentencing in the judgment and sentence, even though the Department of
Corrections and Board of Parole must administer the sentence and decide when an inmate
is eligible for parole. This is consistent with the recommendation of American Bar
Association Standard for Criminal Justice 18-6.8(c), (d), and (e). As explained in the
commentary to that section:
The best method for implementation of this principle is to
instruct correctional authorities to award such a credit
automatically. Thus, standard 18-6.8 strictly limits the formal
role of the sentencing court in determining the appropriate
credit to a fact-finding responsibility. It contemplates that the
court will simply place on the sentencing record the amount
of time already served, as standard 18-6.6(a)(iii) states.
3 ABA Standards for Criminal Justice 18-6.8 cmt., at 492 (2d ed. 1980).6
[¶34] Including the calculation of time spent in facilities operated by the DOC in the
judgment and sentence associates the actual time served with the crime on which the
defendant is resentenced, which may help to assure that the Department can relate the
time served to the crime on which resentencing took place. On the other hand, it would
be practically impossible for a court to determine the amount of good time or special
good time due without receiving testimony from or the records of the Department of
Corrections or the Board of Parole, since it would have no information concerning
whether an inmate had earned or lost good time or special good time without obtaining it
from the agencies statutorily entrusted with making the decision. As already noted, the
grant or removal of good time is discretionary with the Department and Board of Parole,
not the judicial branch. At least one court has held that a court lacks jurisdiction to make
decisions regarding credit for good behavior because that authority was entrusted
exclusively to the executive branch by the legislature. State v. Trieb, 516 N.W.2d 287,
292 (N.D. 1994).
5
The Court later held that prison authorities are not required to grant inmates credit for good conduct
while they are being held in pretrial detention by local authorities. McGinnis v. Royster, 410 U.S. 263,
272-73, 93 S. Ct. 1055, 1060-611, 35 L. Ed. 2d 282 (1973); Campbell, supra, § 9:29 at 453.
6
To the same effect, see ABA Standards for Criminal Justice Sentencing 18-5.19 cmt., at 214 (3d. ed.
1994).
10
[¶35] The sentencing court should therefore not attempt a calculation of time earned
through good behavior, and the district court did not do so in this case. On the other
hand, little harm could result from noting in the judgment and sentence that Pearce
requires that credit earned for good conduct before resentencing be granted, and that the
court anticipates that the executive branch will administer that credit. The California
courts apply a rule which anticipates this kind of coordination between the judicial and
executive branches. In re Martinez, 65 P.3d 411, 412 (Cal. 2003) (trial court must
determine when actual confinement began after conviction was reversed, and prisoner
pled guilty again, but prison authorities must determine conduct credit).
Legality of Sentence
[¶36] In Cothren I, we held that a prisoner is entitled to serve his sentence in one
continuous “stretch,” and that he cannot be required to serve it in installments unless the
interruption was due to escape, a parole violation, or some other fault on his part.
Cothren I, ¶¶ 10-11, 281 P.3d at 355. Nothing in this record suggests that Cothren has
done anything to interrupt his incarceration on any of the sentences imposed.
[¶37] Neither Cothren nor the State has directly questioned whether the amended
judgment and sentence violated Cothren I because it may require him to serve his
sentence in two segments. However, their dispute about credit served brought this issue
to light. We have held that it is in the interest of judicial economy to determine whether a
sentence is illegal and correct it even if it first comes to our attention in our examination
of the appeal. Chapman v. State, 2013 WY 57, ¶ 72, 300 P.3d 864, 878 (Wyo. 2013)
(quoting Endris v. State, 2010 WY 73, ¶ 21, 233 P.3d 578, 583 (Wyo. 2010)).
[¶38] The record before us is incomplete, but the briefing and the record we have
indicates that the amended sentence does not comply with Cothren I’s requirement that a
prisoner must serve his sentence in one uninterrupted “stretch.” The amended judgment
and sentence, like the original judgment and sentence, requires Cothren to serve his
second Natrona County sentence concurrently with the Sheridan County conviction and
consecutively to the first Natrona County conviction. If the first Natrona County
sentence ran concurrently with the Sheridan County sentence, the second Natrona County
sentence could potentially be served without interruption, if it began at the end of the first
Natrona County sentence while the longer Sheridan County sentence was still being
served.7
7
Taking into account the dates they were set to start, if concurrent, the minimum and maximum terms of
the Sheridan County sentence exceeded those of the first Natrona County sentence by, respectively, two
and three years.
11
[¶39] On the other hand, if the first Natrona County sentence is to run consecutively to
the Sheridan County sentence, the sentence in this case cannot be served in a lawful
manner. If this sentence was to begin when it was first imposed, so as to run
concurrently with the Sheridan County sentence, it could not also begin after the Sheridan
County sentence and the consecutive first Natrona County sentence are completely
served. That is impossible. Nor could it run from when it was first imposed until
Cothren was paroled from the Sheridan County sentence to serve the first Natrona
County sentence, then stop and resume when he was paroled from the first Natrona
County conviction. That would result in the same sort of interrupted sentence that we
held unlawful in Cothren I.
[¶40] Unfortunately, the record does not contain the order revoking Cothren’s probation
in the first Natrona County case. In its brief, the State arrived at its calculation of credit
by concluding that Cothren should not receive credit against the sentence in this case for
a period of time during which he was serving the first Natrona County sentence, meaning
that there has to be a forbidden break in the service of the sentence in this case. The
parties stipulated that Cothren had been paroled to the first Natrona County sentence at
the time of his resentencing, as Cothren also testified. This would also indicate that he
had ceased to serve the Sheridan County sentence and was serving a consecutive first
Natrona County sentence. The parties thus agree that there was an interruption in service
of the sentence in this case.
[¶41] We appreciate the creativity shown by the plea agreement, as well as the challenge
the court faced in crafting a legal sentence related to a number of other sentences.
Unfortunately, it appears to be impossible to implement the agreement because of the
effect of the first Natrona County probation revocation and resulting sentence. The only
resolution to this refractory problem will be to resentence so that the second Natrona
County sentence runs concurrently with the first Natrona County sentence as well as the
Sheridan County sentence. We acknowledge that this will be a windfall to Cothren.
Under our ruling in Osborn, supra, Cothren will not be entitled to withdraw his plea,
because he obtained a sentence which will be less than he bargained for. 2012 WY 159,
¶ 20, 290 P.3d at 1101.
CONCLUSION
[¶42] We find no error in the district court’s rulings on Cothren’s motion to withdraw
his guilty plea or relating to other aspects of resentencing. Unfortunately, we find that
the amended sentence requires an interruption in service of the period of incarceration in
this case, and that this sentence must be made to run concurrently with the first Natrona
County sentence. We therefore reverse and remand for entry of an amended judgment
and sentence which accomplishes that end. The district court should determine the
amount of time spent in custody of the Department of Corrections to the date of
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resentencing and include that calculation in its judgment and sentence, but should not
attempt to make any determination of good time earned or lost.
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