Petersen v. State
| Decision Date | 30 December 2019 |
| Docket Number | S-19-0136 |
| Parties | Elmer R. PETERSEN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel.
Representing Appellee: Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Russell Farr, Senior Assistant Attorney General.
Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
[¶1] Elmer Petersen pled guilty to domestic battery and failure to register as a sex offender. On appeal, he claims he did not receive adequate credit for his presentence confinement. We affirm.
[¶2] Mr. Petersen presents a single issue that we restate as two issues:
[¶3] In 2009, Mr. Petersen was convicted of second-degree sexual assault and interference with child custody. The conviction arose from an incident in which he sexually assaulted his estranged wife and absconded with their young child. He was sentenced to a prison term of four to sixteen years for the sexual assault and one to two years for the interference, to be served concurrently. He completed his sentence on the interference count in June 2010, and on February 20, 2013, he was granted parole on the sexual assault count.
[¶4] On March 29, 2018, Mr. Petersen’s girlfriend reported two recent incidents during which Mr. Petersen became angry and injured her. She reported that the first occurred on March 21, and that Mr. Petersen placed his hand around her throat and kept her from breathing for about a minute. She reported that the second occurred the next evening, and that he grabbed her by the arm and then pushed her, causing her to fall to the ground. The law enforcement officer who took the report observed bruising on the girlfriend’s neck and arm that was consistent with her report.
[¶5] On March 30, 2018, a warrant issued for Mr. Petersen’s arrest on one count of strangulation of a household member and one count of domestic battery. On April 4, 2018, law enforcement officers went to Mr. Petersen’s last known address to serve the arrest warrant and were told that he no longer lived at that address.
[¶6] On May 9, 2018, Mr. Petersen was arrested in Pennsylvania for violation of his Wyoming parole.1 He waived extradition and was returned to Wyoming, where he was immediately placed in the State’s medium security correctional facility, pending parole revocation. On July 10, 2018, his parole was revoked, and he resumed serving his sentence on the 2009 sexual assault conviction.
[¶7] On May 21, 2018, while Mr. Petersen’s parole revocation was still pending, a warrant issued for his arrest on a charge of failure to register as a sex offender. On August 30, 2018, the State served Mr. Petersen with that arrest warrant and with the March 2018 warrant for the domestic battery and strangulation charges. On August 31, 2018, the circuit court issued two appearance bonds, one for the failure to register charge and one for the strangulation and domestic battery charges. The bonds conditioned release on Mr. Petersen’s personal surety of $50,000, and each also included a note that Mr. Petersen was in the custody of the Department of Corrections and not subject to release.
[¶8] On September 17, 2018, Mr. Petersen was arraigned and pled not guilty to the charges. He later reached a plea agreement with the State, and on January 16, 2019, the district court held a change of plea hearing. The parties outlined the plea agreement as follows:
[¶9] After the above exchange, the court asked Mr. Petersen to confirm his understanding of the plea agreement.
[¶10] After additional questioning to ensure Mr. Petersen’s guilty pleas were knowing and voluntary, the district court accepted his pleas and dismissed the strangulation charge. The court also ordered his appearance bonds revoked.
[¶11] On April 26, 2019, the district court held a sentencing hearing. Per the plea agreement, it sentenced Mr. Petersen to a prison term of two to three years for the failure to register and a term of 180 days for the domestic battery, to run concurrently with each other and the sentence he was already serving. Mr. Petersen again raised the question of credit for time served and asserted that he was entitled to credit from May 9, 2018, the date on which he was arrested in Pennsylvania. The court conferred with the attorneys and Mr. Petersen’s parole officer and concluded that because Mr. Petersen was not arrested on the failure to register and battery charges until August 30, 2018, he was not entitled to credit from the time of the May arrest. The court found that Mr. Petersen was held without bond on the failure to register and battery charges for 102 days (two days before the bonds issued and 100 days after the bonds were revoked) and gave him credit for that time served. Mr. Petersen timely appealed his sentence to this Court.
[¶12] "Whether an imposed sentence is illegal because the defendant was not properly credited for his confinement prior to sentencing is a question of law that this Court reviews de novo." Hutton v. State , 2018 WY 88, ¶ 14, 422 P.3d 967, 970 (Wyo. 2018) (citing Baker v. State , 2011 WY 53, ¶ 8, 248 P.3d 640, 642 (Wyo. 2011) ). We also recognize, however, that a sentencing court may award credit that a defendant may not otherwise be entitled to receive. Askin v. State , 2016 WY 9, ¶ 9, 365 P.3d 784, 786 (Wyo. 2016) (quoting Daniels v. State , 2014 WY 125, ¶ 11, 335 P.3d 483, 486 (Wyo. 2014) ). We review a denial of any such credit for an abuse of discretion. Askin , ¶ 8, 365 P.3d at 786. "An abuse of discretion will not be found unless the court acts in a manner that exceeds the bounds of reason." Sam v. State , 2019 WY 104, ¶ 9, 450 P.3d 217, 221 (Wyo. 2019).
[¶13] Mr. Petersen’s due process claim asserts a constitutional violation that we review de novo. Daniels , ¶ 6, 335 P.3d at 485 (citing Tucker v. State , 2009 WY 107, ¶ 11, 214 P.3d 236, 240 (Wyo. 2009) ).
[¶14] A sentencing court must award credit for time that a defendant spends in official detention on a charge before sentencing. Askin , ¶ 9, 365 P.3d at 786 (quoting Daniels , ¶ 11, 335 P.3d at 486 ).
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) (). Presentence confinement is incarceration 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.
Cothren v. State , 2013 WY 125, ¶ 27, 310 P.3d 908, 915 (Wyo. 2013) ; see also Mitchell v. State , 2018 WY 110, ¶ 33, 426 P.3d 830, 839 (Wyo. 2018).
[¶15] While a sentencing court must award credit when a defendant is in official detention for the offense on which he is being sentenced, the court also has discretion to award credit for other confinement, so long as "the sum of such time spent plus the sentence does not exceed the maximum allowable sentence." Askin , ¶ 9, 365 P.3d at 786 (quoting Daniels , ¶ 11,...
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