428 P.3d 173
Wyo.2018Background
- Nitchman pleaded guilty in 2007 to unlawful manufacture and possession of controlled substances and was sentenced to consecutive prison terms (7–10 years and 3–5 years).
- In 2008 the district court granted a sentence reduction: after 18 months, the remainder of Count I would be suspended for probation and, upon successful completion, Count II would also be suspended with probation terms to follow.
- Later in 2008 Nitchman was federally indicted for related conduct; federal authorities required completion of his state sentence before beginning the federal term, which conflicted with a proposed federal plea.
- State and Nitchman filed a stipulated motion in 2009 modifying the state sentence so that: the state sentence would be suspended as of his federal custody date; state probation would begin after he completed the federal term; Count I probation would run concurrently with federal supervised release, Count II probation to follow.
- Nitchman served the federal sentence, began state probation in 2011, had probation revoked and reinstated in 2014, and in 2016 had probation revoked and the original (suspended) state sentence reinstated; he appealed asserting the 2009 modified sentence is illegal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 2009 modified state sentence is illegal because it impermissibly interrupts a sentence | Nitchman: Cites Cothren decisions — a prisoner is entitled to serve a sentence in one continuous stretch; the modification forces him to serve state, then federal, then state probation, so the sentence is interrupted | State: The modification did not interrupt any period of incarceration; Cothren prohibits splitting periods of incarceration, not placing probation after federal custody; also waived res judicata defense | Court: The Cothren line prohibits interruption of periods of incarceration. Nitchman’s sentence did not split incarceration (he was not returned to state imprisonment after federal custody); Cothren does not apply. The modified sentence is legal and affirmed. |
Key Cases Cited
- Cothren v. State, 281 P.3d 352 (Wyo. 2012) (holds that a sentence that requires an incarceration period to be interrupted by probation is illegal)
- Cothren v. State, 310 P.3d 908 (Wyo. 2013) (reiterates that incarceration periods cannot be interrupted and condemns split incarcerations)
- White v. Pearlman, 42 F.2d 788 (10th Cir. 1930) (historical authority that a multi-year sentence must be served continuously unless interrupted by the prisoner’s fault)
- Goetzel v. State, 406 P.3d 310 (Wyo. 2017) (res judicata bars issues that were or could have been raised earlier, but exceptions exist for good cause and interests of justice)