IN THE SUPREME COURT, STATE OF WYOMING
2023 WY 72
APRIL TERM, A.D. 2023
July 21, 2023
TIMOTHY W. GREENE,
Appellant
(Defendant),
v. S-23-0072
THE STATE OF WYOMING,
Appellee
(Plaintiff).
Appeal from the District Court of Campbell County
The Honorable James Michael Causey, Judge
Representing Appellant:
Timothy W. Greene, pro se.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney
General; Kristen R. Jones, Senior Assistant Attorney General.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, 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.
GRAY, Justice.
[¶1] Timothy Greene was arrested for probation violations in two cases and on new
felony drug charges. At sentencing, the district court imposed the underlying sentences in
the probation violation cases. It entered concurrent sentences on two felony drug
convictions and ordered these sentences to run concurrently with the sentence in one of the
probation revocation cases (Docket 6388). Mr. Greene filed a motion seeking presentence
time served credit against the felony drug sentences. The district court denied the motion
and Mr. Greene appeals. We affirm.
ISSUE
[¶2] Was Mr. Greene, who received presentence confinement credit against the
sentences in his probation violation cases, also entitled to presentence confinement credit
against the sentences in the felony drug possession docket?
FACTS
[¶3] In 2014, Mr. Greene was sentenced on two felony counts of DUI, in Dockets 6388
and 6586. He received consecutive four- to six-year sentences suspended in favor of seven
years of probation. In June 2020, Mr. Greene was arrested and charged with five felonies,
including two counts of possession of anabolic steroids in violation of Wyo. Stat. Ann.
§ 35-7-1031(c)(iii) 1 (Docket 9287) and with probation violations in his two previous cases.
He was held without bond from the time of his arrest on June 24, 2020, to the time of his
sentencing on December 28, 2020, a total of 188 days. 2 The cases proceeded
simultaneously. Pursuant to a global plea agreement, Mr. Greene admitted to the probation
violations and pled guilty to two felony counts of drug possession. At sentencing, the
district court revoked Mr. Greene’s probation and reimposed the underlying consecutive
four- to six-year sentences, with credit for 436 days served in Docket 6388 and 364 days
1
Wyo. Stat. Ann. § 35-7-1031(c)(iii) provides:
(c) It is unlawful for any person knowingly or intentionally to possess
a controlled substance unless the substance was obtained directly from, or
pursuant to a valid prescription or order of a practitioner while acting in
the course of his professional practice, or except as otherwise authorized
by this act. . . . Any person who violates this subsection:
. . .
(iii) And has in his possession any other controlled substance
classified in Schedule I, II or III in an amount greater than set forth
in paragraph (c)(i) of this section, is guilty of a felony punishable
by imprisonment for not more than five (5) years, a fine of not
more than ten thousand dollars ($10,000.00), or both;
Wyo. Stat. Ann. § 35-7-103(c)(iii) (LexisNexis 2023).
2
In his pleadings, he states that his presentence time was 184 days, we calculate the amount of time to 188
days. We will refer to the total time as 188 days throughout this opinion.
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served in Docket 6586. It is undisputed that the credit in those dockets included the 188
days that Mr. Greene was held without bond from his arrest to sentencing. 3
[¶4] The district court imposed concurrent sentences of three to five years with no credit
for time served in Docket 9287 (drug possession counts). It ordered these sentences to run
concurrently with the sentence in Docket 6388. Mr. Greene filed a pro se Motion for Time
Served in Presentence Incarceration arguing that he should have received credit for the
time served after his arrest and before sentencing against his sentences in Docket 9287.
The district court denied that motion and Mr. Greene appeals.
STANDARD OF REVIEW
[¶5] “A sentence that does not include proper credit constitutes an illegal sentence.
Whether a sentence is illegal is a question of law that we review de novo.” Cruzen v. State,
2023 WY 5, ¶ 11, 523 P.3d 301, 304 (Wyo. 2023) (quoting Newnham v. State, 2021 WY
54, ¶ 3, 484 P.3d 1275, 1276 (Wyo. 2021)). The denial of a motion to correct an illegal
sentence is reviewed for an abuse of discretion. Harrell v. State, 2022 WY 76, ¶ 5, 511
P.3d 466, 468 (Wyo. 2022).
DISCUSSION
[¶6] In his pro se brief, Mr. Greene contends that his sentence in Docket 9287 is illegal
because he did not receive credit for 188 days of time served when being held without
bond. This argument requires us to consider and apply our precedent as it relates to credit
for time served pending resolution of probation revocation proceedings; credit for time
served where there are concurrent sentences in separate matters; and credit for time served
where there are consecutive sentences.
[¶7] In Jackson v. State, 2009 WY 82, ¶¶ 10–15, 209 P.3d 897, 900–01 (Wyo. 2009), we
addressed credit for time spent in custody while awaiting probation revocation
proceedings. Mr. Jackson was not charged with a separate criminal offense and his
presentence detention resulted solely from alleged violations of the conditions of his
probation. We concluded that Mr. Jackson’s detention, pending resolution of the probation
revocation proceedings, was a direct result of the original crime for which he was serving
probation, and he was entitled to credit on the underlying sentence. Id. ¶ 14, 209 P.3d at
901. We explained:
[T]here are situations where the incarceration is directly
attributable to the act that violates the conditions of probation
rather than the underlying criminal charge. The most obvious
3
The record is unclear how credit for time served was calculated in Dockets 6388 and 6586, but for purposes
of our analysis, it is only relevant that the calculation included the 188 days of presentence confinement.
2
are those situations where a defendant is arrested and charged
with committing a new crime. But there are also circumstances
where a defendant is alleged to have violated probation
conditions by committing acts that are not otherwise criminal.
For example, probationers are frequently barred from leaving
a defined geographic location, drinking alcohol, contacting the
victim of the underlying crime, and so on. Violating these
conditions may be the direct cause of the probationer’s
detention, but it is indisputable that the State would be unable
to incarcerate the probationer for these acts absent the
conviction for the underlying crime. Under those
circumstances, we are forced to conclude that pre-revocation
incarceration is attributable to the underlying crime.
Id. ¶ 11, 209 P.3d at 900. The time 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. See also Swain
v. State, 2009 WY 142, ¶ 11, 220 P.3d 504, 507 (Wyo. 2009); Hagerman v. State, 2011
WY 151, 264 P.3d 18 (Wyo. 2011); Tallerdy v. State, 2014 WY 47, ¶ 8, 322 P.3d 47, 49
(Wyo. 2014).
[¶8] Jackson does not address Mr. Greene’s issue. Here, unlike Jackson, Mr. Greene
was held pending sentencing in the probation revocation matters and on new charges. As
required by Jackson, Mr. Greene received credit against his underlying sentences. He
received no credit against the sentences for his new convictions. We then look to our
precedent on credit for presentence time served where sentences are concurrent and where
sentences are consecutive.
[¶9] The district court ordered a combination of concurrent and consecutive sentences.
It reimposed the underlying consecutive four- to six-year sentences in Dockets 6388 and
6586 (the probation revocation cases) and awarded full credit for time served in these
dockets. It imposed concurrent sentences of three to five years with no credit for time
served on the new drug possession charges in Docket 9287, and ordered these sentences to
run concurrent with the sentence in Docket 6388.
[¶10] In Scott v. State we held “credit for time served is applied against all concurrent
sentences imposed in a single prosecution.” Scott v. State, 2012 WY 86, ¶ 19, 278 P.3d
747, 753 (Wyo. 2012) (citing Weedman v. State, 792 P.2d 1388, 1389 (Wyo. 1990)). In
Hagerman we held that when concurrent sentences are imposed in a single case, credit for
time served must be applied equally against both sentences. We clearly stated that this
principle does not apply to concurrent sentences imposed in separate cases. Hagerman,
¶ 13, 264 P.3d at 21. See also Abitbol v. State, 2008 WY 28, ¶ 13, 178 P.3d 415, 418 (Wyo.
2008). Applying these principles to Mr. Greene’s case, we find that Mr. Greene is not
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entitled to additional credit in Docket 9287. He received credit for the full 188 days spent
in presentence confinement in Dockets 6388 and 6586. Mr. Greene’s sentences on the two
new charges were ordered to run concurrent with his sentence in a separate docket—Docket
6388. Mr. Greene was not entitled to credit for time served against his concurrent sentence
in a separate case.
[¶11] In Palmer we considered the question of whether presentence confinement must be
credited to all sentences when sentences run consecutively. Palmer v. State, 2016 WY 46,
¶ 14, 371 P.3d 156, 159 (Wyo. 2016). We held that “when consecutive sentences are
ordered, the proper allocation of credit for time served is one that gives the defendant full
credit for the actual time served against his total term of imprisonment.” We explained:
In the case of concurrent sentences, the period of presentence
confinement should be credited against each sentence. This is
so because concurrent sentences obviously commence at the
same time and in functional effect result in one term of
imprisonment represented by the longest of the concurrent
sentences imposed. Only by giving credit against each
concurrent sentence will the defendant be assured of receiving
credit for the full period of presentence confinement against
the total term of imprisonment. When consecutive sentences
are imposed, crediting the period of presentence confinement
against one of the sentences will assure the defendant full
credit against the total term of imprisonment.
Id. (quoting Schubert v. People, 698 P.2d 788, 795 (Colo. 1985)).
[¶12] The district court credited Mr. Greene’s presentence confinement against the
consecutive sentences in Dockets 6388 and 6586. Mr. Greene received full credit for his
presentence confinement against the total term of imprisonment as required by Palmer.
Palmer, ¶ 14, 371 P.3d at 159.
CONCLUSION
[¶13] The district court credited Mr. Greene’s presentence confinement against the
reimposed consecutive sentences in Dockets 6388 and 6586. He was not entitled to credit
for time served against his concurrent sentences in his separate cases in Docket 9287. The
district court did not abuse its discretion when it denied Mr. Greene’s motion to correct an
illegal sentence.
[¶14] Affirmed.
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