Cothren v. State

• Decision Date: 30 July 2012
• Docket Number: No. S–11–0240.,S–11–0240.
• Citation: 2012 WY 102,281 P.3d 352
• Parties: Jerele Craig COTHREN, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

281 P.3d 352

2012 WY 102

Jerele Craig COTHREN, Jr., Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

No. S–11–0240.

Supreme Court of Wyoming.

July 30, 2012.

Representing Appellant: Diane M. Lozano, State Public Defender; Tina N. Olson, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Susan G. O'Brien, Senior Assistant Attorney General.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

VOIGT, Justice.

[¶ 1] The appellant, Jerele Craig Cothren, Jr., currently faces four separate sentences from three courts for unrelated crimes. The most recent sentence, and the one upon which the appellant's appeal is based, required that the appellant serve his term of incarceration concurrent with a sentence for which the appellant is presently incarcerated, as well as consecutive to a probationary period that has yet to begin. Because it is impossible to meet both these requirements, and because the sentence as pronounced would require the period of incarceration to be interrupted by a period of probation, the sentence is illegal. We remand to the district court for resentencing.

ISSUE

[¶ 2] Is the sentence at issue an illegal sentence?

FACTS

[¶ 3] Between 2007 and 2010, three district courts sentenced the appellant on four separate occasions for various unrelated crimes. On August 21, 2007, in Natrona County, the appellant pled guilty to larceny by a bailee and received a sentence of two-to-four-years imprisonment at the Wyoming State Penitentiary, suspended in favor of three-years probation. On May 3, 2009, in Sheridan County, the appellant pled guilty to six counts of forgery and one count of identity theft and was sentenced to five-to-eight-years imprisonment on each charge, to run concurrently.¹ On November 18, 2009, in Platte County, the appellant pled guilty to livestock rustling and was sentenced to two-to-five-years imprisonment, suspended in favor of five-years probation. On May 30, 2010, the appellant's Natrona County probation was revoked and he was ordered to serve two-to-four-years imprisonment. Finally, regarding the sentence at issue on appeal, the appellant pled guilty to forgery, and on August 6, 2010, was sentenced by the Natrona County district court to eight-to-ten years “to be served concurrent with [the] Sheridan County [sentence], and consecutive to [the] Natrona County [sentence] and [the] Platte County [sentence].”

[¶ 4] The appellant started his incarceration on May 3, 2009, as a result of his Sheridan County sentence of five-to-eight years. He is also currently serving a two-to-four-year term as a result of the revocation of his Natrona County probation. If the appellant serves the maximum time on his sentences, he will be released in May 2017. At that time, the appellant would begin serving his Platte County five-year probation, which the district court ordered to be served consecutive to the Sheridan County sentence. The sentence that is being appealed, the appellant's second Natrona County sentence, was ordered to be served consecutive to the first Natrona County sentence, consecutive to the Platte County probation, and concurrent with the Sheridan County sentence.

[¶ 5] The appellant filed a Motion to Correct Illegal Sentence on June 20, 2011. He argued that the second Natrona County sentence is illegal because it would be impossible to serve his imprisonment concurrent with a sentence that is already running (the Sheridan County sentence) and also consecutive to a term that is yet to begin (the Platte County probation). The district court denied the appellant's motion, finding that the sentence was not illegal and was in keeping with the terms of the plea agreement. The appellant now appeals that decision.

STANDARD OF REVIEW

[¶ 6] The legality of a sentence is a matter of law that we review de novo. Moronese v. State, 2012 WY 34, ¶ 5, 271 P.3d 1011, 1013 (Wyo.2012).

DISCUSSION

[¶ 7] The appellant is currently serving a five-to-eight-year sentence out of Sheridan County, which began on May 3, 2009. Following completion of this sentence in 2017, at the latest, the appellant is supposed to begin a five-year period of probation as a result of a sentence out of Platte County. Prior to these sentences, the appellant was sentenced by Natrona County district court to three-years probation. That probation was revoked on May 30, 2010, and the appellant was ordered to serve a term of two-to-four-years imprisonment. Although the record does not include the order revoking this probation, and the briefs, the Motion to Correct Illegal Sentence, and the transcript of the hearing on that motion differ as to the timing of this sentence, the appellant was incarcerated when his probation was revoked and is therefore presently serving this sentence concurrent with the Sheridan County sentence.

[¶ 8] The legality of the appellant's second Natrona County sentence is the issue addressed in this appeal. The Natrona County district court ordered that the five-to-eight-year sentence be served consecutive to the earlier Natrona County sentence, which, as mentioned above, is being served currently, concurrent with the Sheridan County sentence, and consecutive to the appellant's five-year Platte County probation, which will begin following the completion of the Sheridan County sentence.

[¶ 9] It is impossible for all of these sentences to be served as ordered by the Natrona County district court. Assuming the appellant serves the maximum terms, the first Natrona County sentence will end in May 2014 and the Sheridan County sentence will end in May 2017. The sentence on appeal, the second Natrona County sentence, was ordered to be served consecutive to the first Natrona County sentence and concurrent with the Sheridan County sentence. In order to meet those requirements, the sentence will begin, under the above scenario, in May 2014, following the completion of the earlier Natrona County sentence, and will run concurrently with the balance of the Sheridan County sentence. The sentence on appeal, however, is also supposed to be served consecutive to the Platte County probation, which is supposed to follow completion of the Sheridan County sentence. The appellant is correct that it is impossible for the second Natrona County sentence to be served concurrent with a sentence that is already being served as well as consecutive to a sentence that has yet to begin.

[¶ 10] Moreover, as both parties agree, it would be improper to split the appellant's second Natrona County incarceration so that it would be interrupted by a period of probation. “The discretion of the trial court is also limited by the fact that a sentencing court may only impose those sentences that have been authorized by the legislature.” Daugherty v. State, 2002 WY 52, ¶ 13, 44 P.3d 28, 33 (Wyo.2002) (citing Williams v. State, 949 P.2d 878, 880 (Wyo.1997)). Courts are to “determine and fix the punishment” “[w]ithin the limits prescribed by law.” Wyo. Stat. Ann. § 6–10–104 (LexisNexis 2011). The Wyoming legislature has not authorized a sentencing structure permitting a period of incarceration to be split by probation from another sentence.

[¶ 11] When a prisoner was discharged mistakenly from a five-year sentence, the 10th Circuit Court of Appeals said that “[a] sentence of five years means a continuous sentence, unless interrupted by escape, violation of parole, or...