Swain v. State
| Decision Date | 19 November 2009 |
| Docket Number | No. S-08-0280.,S-08-0280. |
| Citation | 2009 WY 142,220 P.3d 504 |
| Parties | Nathan Hans SWAIN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Representing Appellant: Diane M. Lozano, Wyoming State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel, Wyoming Public Defender Program.
Representing Appellee: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶ 1] Appellant Nathan Hans Swain appeals the district court's order denying him credit for time served on three separate probation revocation actions. Swain also appeals his conviction for indirect criminal contempt arising from his failure to comply with the district court's order requiring him, as a condition of probation, to attend and complete an inpatient substance abuse treatment program. For the reasons set forth below, we conclude Swain is entitled to additional credit against his sentence, and that his conviction for indirect criminal contempt cannot stand. We reverse and remand for further proceedings consistent with this opinion.
[¶ 2] Swain presents the following issues:
I. Did the trial court err by imposing an illegal sentence?
II. Did the trial court err by violating Appellant's due process rights by imposing contempt sanctions after improper service, failing to inform Appellant of the consequences of his plea and subjecting Appellant to double jeopardy?
[¶ 3] In January 2007, Swain pled guilty to felony battery against a household member in violation of Wyo. Stat. Ann. § 6-2-501(b) and (f)(ii) (LexisNexis 2007). He was sentenced to three to five years in prison, with credit for 275 days of presentence confinement. Execution of that sentence was suspended, and he was placed on four years of supervised probation.
[¶ 4] Between October 2007 and August 2008, the State filed three separate revocation petitions because Swain violated the terms of his probation. The first revocation petition alleged that Swain had used marijuana and absconded from supervision. Swain was arrested on October 15, 2007, and subsequently admitted the allegations contained in the petition. On January 10, 2008, the district court revoked and reinstated his probation. A condition of that probation required Swain to successfully complete the program at the Cheyenne Transitional Center.
[¶ 5] Swain never reported to the program and absconded from supervision, prompting the filing of the second probation revocation petition. He was arrested on March 20, 2008. As before, Swain admitted to violating the terms of his probation. On July 3, 2008, the district court again revoked and reinstated Swain's probation. As a condition of that probation, the district court ordered Swain to "report directly to and be placed in and successfully complete the Transitions Residential Program," an inpatient substance abuse treatment program.
[¶ 6] Swain also failed to report to that program, and the State's third revocation petition ensued. Swain was arrested on August 7, 2008. At his initial appearance on August 21, the district court advised Swain it was considering charging him with indirect criminal contempt for his alleged failure to abide by the order requiring him to attend and complete the Transitions Residential Program. On August 27, the district court issued an order to show cause in the underlying criminal case requiring Swain to appear before the court on September 4 and show cause why he should not be held in indirect criminal contempt for violating its order.
[¶ 7] At the September 4 hearing, Swain's counsel implored the district court to drop the contempt charge, but the district court declined to do so. The district court, however, continued the contempt hearing, as well as the revocation hearing, until September 18 to allow counsel additional time to prepare a defense. During the September 18 hearing, Swain admitted failing to report to the inpatient treatment program as ordered, thereby providing a factual basis for both the probation revocation and the criminal contempt charge. The district court revoked Swain's probation and reinstated the underlying three-to-five-year prison sentence, with the original presentence credit of 275 days. The district court denied credit against that sentence for the time Swain served pending resolution of the three probation revocation actions. The district court also found Swain in indirect criminal contempt and sentenced him to sixty days in jail, with credit for fourteen days served between September 4 and September 18. The district court ordered that the underlying prison sentence be served consecutively to the sixty-day contempt sentence. This appeal followed.
[¶ 8] Swain contends his sentence is illegal because the district court did not give him credit for the time he served in the Laramie County Detention Center on the three probation revocation actions. A sentence that does not include proper credit constitutes an illegal sentence. Whether a sentence is illegal is a question of law, which we review de novo. Beyer v. State, 2008 WY 137, ¶ 7, 196 P.3d 777, 780 (Wyo.2008); Manes v. State, 2007 WY 6, ¶ 7, 150 P.3d 179, 181 (Wyo.2007).
[¶ 9] Our recent decision in Jackson v. State, 2009 WY 82, 209 P.3d 897 (Wyo.2009), governs our disposition of Swain's claim. In Jackson, we held that the time spent 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, overruling Halbleib v. State, 7 P.3d 45 (Wyo.2000) (). Jackson, ¶¶ 10-12, 209 P.3d at 900-01. In reaching this result, we stated:
[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 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.
[¶ 10] We concluded in Jackson that credit was warranted because the sole reason for Mr. Jackson's detention was the allegation he violated the conditions of his probation. Mr. Jackson was not charged with a separate criminal offense as a result of the facts alleged in the petition, and the only allegation resolved in the State's favor supporting the probation revocation was that Mr. Jackson absconded from supervision. Under the specific facts of the case, we determined the time Mr. Jackson was detained pending resolution of the probation revocation proceedings was a direct result of the underlying criminal conviction, and he was entitled to credit for the time incarcerated against his minimum and maximum sentence on the underlying sentence. Id., ¶ 14, 209 P.3d at 901.
[¶ 11] In the instant case, like Jackson, the sole basis for Swain's detention in each of the revocation proceedings was the accusation he had violated one or more conditions of his probation. No additional criminal charges were filed against Swain based on the alleged violations, and the justification for revoking probation was basically that Swain absconded from supervision and failed to report to and complete the Cheyenne Transitional Center's program and the Transitions Residential Program. Without doubt, the State could not have arrested and detained Swain for these acts absent his conviction for the underlying crime. Under the circumstances, we must also conclude the time Swain spent in custody pending resolution of the three revocation proceedings was directly attributable to his underlying battery conviction and, consequently, he is entitled to credit against the underlying three-to-five-year prison sentence. Accordingly, we reverse his sentence and remand the matter to the district court with instructions to give Swain credit against his minimum and maximum sentence for the pre-revocation incarceration time.1
[¶ 12] Swain mounts several challenges to the validity of his conviction for indirect criminal contempt. However, our focus is on a procedural error in the contempt proceeding, which we conclude requires reversal of that conviction.
[¶ 13] The power to punish for contempt is inherent in all courts of general jurisdiction in Wyoming. Skinner v. State, 838 P.2d 715, 723 (Wyo.1992); Connors v. Connors, 769 P.2d 336, 343 (Wyo.1989); Horn v. District Court, Ninth Judicial District, 647 P.2d 1368, 1374-75 (Wyo.1982). Contempts of court are classified as either civil or criminal in nature and, within each classification, either as direct (committed in the court's presence) or indirect contempt (committed outside of the hearing or view of the judge). A civil contempt is remedial; the penalty serves to enforce compliance with a court order or to compensate an injured ...
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