Russell v. State, 011321 WYSC, S-20-0130

Docket Nº:S-20-0130
Opinion Judge:BOOMGAARDEN, JUSTICE.
Party Name:BRIAN TODD RUSSELL, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
Attorney:Representing Appellant: Brian Todd Russell, Pro Se. Representing Appellee: Bridget L. Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Kellsie Jo Singleton, Assistant Attorney General.
Judge Panel:Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Case Date:January 13, 2021
Court:Supreme Court of Wyoming

2021 WY 9

BRIAN TODD RUSSELL, Appellant (Defendant),

v.

THE STATE OF WYOMING, Appellee (Plaintiff).

No. S-20-0130

Supreme Court of Wyoming

January 13, 2021

Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge.

Representing Appellant: Brian Todd Russell, Pro Se.

Representing Appellee: Bridget L. Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General; Kellsie Jo Singleton, Assistant Attorney General.

Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

BOOMGAARDEN, JUSTICE.

[¶1] Brian Todd Russell, appearing pro se, appeals the district court's denial of his latest motion to correct an illegal sentence in which he requested credit against his Wyoming sentences for time spent in Colorado. Because Mr. Russell's claim is barred by res judicata, we affirm.

ISSUE

[¶2] We restate the single dispositive issue as:

Is Mr. Russell's W.R.Cr.P. 35(a) motion barred by res judicata?

FACTS

[¶3] Mr. Russell pled guilty to two counts of forgery, two counts of burglary, and one count of aggravated burglary in five separate criminal dockets in Laramie County between 2015 and 2017. On February 22, 2016, Mr. Russell's multiple dockets were at various stages of prosecution when the court modified his bond to $10, 000, concurrent on all dockets, with standard bond conditions and a requirement that he immediately report to a residential treatment program in Casper, Wyoming on release. Mr. Russell posted bond, but instead of going to the treatment program in Casper, he was released to Colorado authorities.

[¶4] Mr. Russell remained in Colorado after posting bond there and committed additional crimes. He spent the next year in and out of Colorado custody. On the State's petition to revoke Mr. Russell's bond and his failure to appear at the hearing to address the petition, the Laramie County District Court issued a warrant for his arrest.

[¶5] By March 2017, Mr. Russell had been returned to Wyoming from Colorado. In June, the district court held a joint hearing in all five dockets. In two dockets, the court revoked Mr. Russell's probation and imposed the underlying sentences of 2.5 to 4 years, to be served concurrently, with 281 days credit for time served. In the remaining three dockets, the court sentenced Mr. Russell to 7 to 10 years, 7 to 10 years, and 7 to 15 years, to be served concurrent to one another but consecutive to the two shorter sentences. He was not entitled to and did not receive any credit for time served on the consecutive sentences.1 Mr. Russell has challenged his sentences on multiple occasions and his latest two motions, filed in 2018 and 2020, are at issue here.

[¶6] In December 2018, Mr. Russell filed a pro se motion to correct an illegal sentence in which he argued he was held in Colorado because Wyoming misled and failed to communicate with Colorado regarding his sentencing. He requested the court "credit [him] the full six-hundred ten (610) days under nunc pro tunc as time served." The district court denied this motion.

[¶7] Mr. Russell appealed. His court-appointed appellate counsel filed an Anders brief stating "that there [were] no meritorious, arguable issues for appeal."2 We accepted the Anders brief and ordered that Mr. Russell may file a pro se brief. Russell v. State, 2019 WY 73, ¶ 2, 444 P.3d 83, 83 (Wyo. 2019). He did not do so in the time allotted. Id. After reviewing the record and the Anders brief, we affirmed. Id. ¶¶ 3, 5, 444 P.3d at 83.

[¶8] In March 2020, Mr. Russell filed another pro se motion to correct an illegal sentence. This time Mr. Russell requested 288 days credit for the time he was "held without bail on a Wyoming Warrant in Colorado from May 12, 2016 [through] February 29, 2017[.]" The district court summarily...

To continue reading

FREE SIGN UP