*1 final entry of a days after within filed order.
аppealable Appeal dismissed. WY73 CENTER, Sr., Appellant A.
Willis
(Defendant), Wyoming, STATE (Plaintiff). Appellee
No. S-10-0211. Wyoming.
Supreme Court
April27,2011. Diane E. Cour-
Representing Appellant: University selle, Program, Aid Defender Law; Mc- and Shannon Wyoming College of Donald, Intern. Student Bruce A. Salz Appellee: Representing General; Terry L. Attorney burg, Wyoming General; Attorney D. Mi- Armitage, Deputy Attorney Pauling, Assistаnt chael Senior Daraie, General; Attor- A. Assistant Justin ney General. HILL, C.J., GOLDEN, KITE,
Before BURKE, VOIGT, and JJ.
HILL, Justice. Center, Sr. Willis A. Appellant, (Center), an order of the dis- appeals motion to correct denying his trict filed initial brief was His sentence. However, brief reply a brief pro se. filed on his behalf the State Law, College оf University Wyoming, Program. He contends Defender Aid *2 the district court sent him from an alcohol ceration following his termination at WYS- (WYSTAR), TAR. center to the state penitentiary, in a manner that violated his 3. argues [The State] that if this Court (due law). rights process constitutional claims, reviews Center's it should do so closely argument, related Center contends "plain under error" standard rather that imposed district court a sentence than the "abuse of discretion" standard. permitted that non-judicial personnel to re- 4. argues [The State] that to the extent placement voke his at WYSTAR a mannеr permitted Center's sentence his treatment that rights process violated his to due of law. unambiguously was desig- We will remand this matter to the district furlough, nated a not a proba- sentence of court with directions that the district court tion. credit Center for all time served connec- 5. State] asserts [The tion with his detention at WYSTAR. The granted court "furlough" [him] after it district court's sentence is otherwise af- imposed legal and therefore firmed. conferring upon WYSTAR officials the power to determine whether Center should
ISSUES expelled be from treatment in- sent [T2] Center raises these issues: prison, stead to without opportunity heard, be was improper not delegation or 1. The district court was in error otherwise unlawful. sending directly prison, [Center] with- out holding preliminary either a or final probation hearing, revocation in violation AND FACTS PROCEEDINGS of the Fourteenth Amendment's Due Pro- [T3] Center plеa entered a of nolo con- cess Wyo. Clause and § Const. art. 6. tendere to aggravated the crime of assault 2. The improperly district court imposed battery on September 2008. a sentence providing for a later revocation lli@)(1)(A). W.R.Cr.P. Judgment was en- by non-judicial personnel, in viоlation of plea tered on that September 283, on 2008. the Fourteenth Amendment's Due Process Sentence and a Mittimus were entered on Wyo. 1, § Clause and Const. art. 6. November 2008. The imposed sentence The State reformulates those issues in this was incarceration period of 36 to 80 phrase:
. months and no mention is probation, made of except that the district court hope saw little Is [Center's] illegal merely be- for him "supervision." Instead, the exe- cause the district stayed its issuance was, cution of essence, the sentence condi- mittimus, in order to conditionally tionally stayed pending Center's admission to release [Center] for alcohol abuse treat- WYSTAR, and Center granted a "fur- ment, and later issued the mittimus with- lough" purpose. for that respect With to a out a hearing? further "furlough," Wyo. (Lex- § Stat. Ann. 7-13-701 Reply Center's Brief asserts that the State's 2009) provides: isNexis brief suggests thеse additional issues: Definitions; 7-13-701. establishment 1. [The argues State] that Center's claim programs. sentencing judi- is barred res (a) As used this section: cata because it could have been raised on direct appeal, in Center's motion for sen- "Department" means the state de- reduction, tence petition or Center's partment corrections; post-conviction relief. (ii) "Compassionate leave" means a 2. [The State] maintains that Center's temporary release to visit a member of claims untimely they because should the inmate's family immediate who is in have bеen raised either on death, direct danger of or to attend the funeral and sentence or on services or other last rites of a member appeal from the order that led to his incar- of the inmate's family; immediate an extensive crimi had (ii) family quite clear. Center member" "Immediate - - more serious history that included ever child, or nal parent, brother spouse, means court was The district criminal offenses. sister. a chance at some give Center willing to (b) adopt reason- may department incarceration treatment before rehabilitative *3 pro- which will regulations rules and able on the material the record began. Based furlough program for reentry vide willfully apparent that Center appeal, it is The any penal institution. inmates of state expec behavior to the refused to conform his be de- furlough program shall reentry program. tations of the WYSTAR to be are about inmates who signed for discharge final from parole or released on for failed at WYSTAR sever Center [T5] reintegration to aid their imprisonment reasons, he importantly most because al but society. The members productive step" as complete his written "first refused to Anonymous program utilized or unes- may provide for escorted the Alcoholics program of absence from temporary leaves corted by A document the file dated WYSTAR. purposes of: 2009, for 26, the institution to be Center's October step. first The (i) completing at AA's community living ar- effort Securing record does not re- concedes that State rangements; certainty means used to trans with fleet (ii) prospective interviews with Job Depart to the fer Center from WYSTAR employers; However, Center does ment of Corrections. (ii) necessаry relearning Learning or assert, proof, sort of much less offer not skills; and living imposed was that the sentence issue (iv) consistent with purposes, Other strayed from what the district manner that interest, necessary for the public sentencing him at the represented to court reintegration into so- inmаte's successful Moreover, has not offered hearing. Center ciety. argument that the district court's any cogent (c) may adopt reason- department that term is con "illegal," as sentence was regulations which will estab- rules and able See, e.g., by precedents. Sun- templated оur provide furlough program to for lish a State, 149, (Wyo. 150-51 ches v. temporary leaves of unescorted escorted or 1999). brief, reply suggests Center In his penal any state institution absence peni to the transfer from WYSTAR that his of: purposes However, tentiary explained to him. was not (i) Maintaining рrisoner's relation- supplied Center much of the documentation members; family ship with immediate abundantly it makes to the district court why he was consid that knew clear Center why he to have failed at WYSTAR ered (ii) compassionate Providing for - Wyoming Peni to fail at the State continued leaves. that on tentiary. does indicate The record recognized it court The district 28, 2009, January was transferred Center allowing Center to re taking a risk Sheriff, Campbell County to the the Sheridan pend ceive alcohol rehabilitation Center, and then to the County Detention signifi and to a ing executiоnof his of Corrections. custody Department of the court did here the district cant extent what sentence, although one that was an "ad hoe" DISCUSSION contrary law that necessarily to the was not apply this standard of We court sentencing. The district applies to as this: in circumstance such review a very if Center did not clear that made normally within Sentencing decisions remanded he would be succeed at Bitz v. Corrections, the trial court. the discretion of "no hear Department of 257, 140, ¶17, State, P.3d 259 78 2003 WY brief, reply Center nothing." In his ing, no limited, is discretion (Wyo.2003). "Such "hopelessly the sentence as characterized may however, court not as a inasmuch pro In the full context confusing." A sentence is illegal sentence. case, actually enter an ceedings in this the sentence 966
illegal if it violates the constitution or other 2, 2009, district court on November Center CT, 101, ¶8, law." In re 2006 WY filed a Sentence," "Motion for Reduction of 643, (internal (Wyo.2006) P.3d but did challenge not case the sentence itself. In omitted). citation Whether a sentence is January 2010, Center filed a "Petition for illegal law, question is a which we re Writ of Review" in petition this Court. That 6, view de novo. Manes 2007 WY was deniеd 9, order February entered on ¶ 7, 2010. Center v. Case No. S-10-0019. April On Endris v. entered its order (citing denying Jackson v. Center's motion for correc ¶82, 6, 2009WY tion of sentence. (Wyo. 898-99 Center a timely 2009)). notice of appeal, was docketed *4 1, this Court on October 2010. We con addition, we have held: - clude that Center's sentence illegal was not 85(a) W.R.Cr.P. allows a court to correct and, when entirety viewed its and in the illegal sentence at illegal time. "An case, unusual context of this he was not sentence is one which statutory exceeds process denied due of law. limits, imposes multiple imprisоn terms of offense, ment for the same or otherwise violates constitutions or the law." Brown CONCLUSION ¶ State, 119, 7, v. 489, 2004WY 99 P.3d 491 [T9] The sentence imposed by the dis- (Wyo.2004); Ryan State, v. 46, 988 P.2d trict and, court was unusual perhaps, ill- (Wyo.1999); State, 62-63 Cardenas v. 925 advised. approve We do not of depar- this 239, (Wyo.1996). P.2d 240 Whether a sen many ture frоm the sentencing alternatives illegal tence is by determined referenc that are available to the district court. How- ing applicable the statute or constitutional ever, we do not find in the appeal record on provisions, subject and is statutory to in cireumstances that render it an "ilegal" sen- Brown, terpretation. ¶7, 491; 99 P.3d at tence. The order of the district deny-
Ryan, 988P.2d at 62-63. ing Center's motion to correct an sen- tence is remanded to the district court for ... We repeatedly have held that claims purpose the of amending disputed the sen- brought 85(a) pursuant to W.R.Cr.P. tence so as to credit Center for all time subject principles to the judicata. of res served in connection with his detention at State, McCarty 524, v. 929 (Wyo. P.2d 525 WYSTAR. The sentence is otherwise af- 1996); State, Lacey 148, ¶11, 2008 WY firmed. 493, 79 P.3d (Wyo.2003); 495 Dolence v. State, 176, 2005 WY 107 P.3d 178 VOIGT, Justice, dissenting, with whom (Wyo.2005); State, 84, Amin v. BURKE, Justice, joins. ¶5, 1143, 138 P.3d (Wyo.2006). We have also repeatedly judi- held that the res I dissent because I cannot find a cate applies doctrine when a defendant statute or court rule that authorizes the dis could have raised such an issue in an earli trict court to sentence appellant the in the apрeal er or motion for sentence reduction manner that it did. This is what the record but did not do so. Hamill v. 948 reveals: At arraignment his September 4, on 1356, (Wyo.1997); 1358-59 Mead v. 2008, appellant the pled no aggra contest to 564, 2 P.3d (Wyo.2000); Gould vated battery, assault and felony. Judg State], ¶16, [v. [261], at 266 ment of convictionwas orally entered on the [ ]. date, same and a written was en ¶¶ McDaniel v. 7, 9, 2007WY tered on September 2008. Sentencing (Wyo.2007); also see Mead v. place took on November 2008. The dis trict court imposed a sentence of 36 to 80 [T8] Center did not judgment months, the gave and appellant the credit fоr 107 days imposed by served. the district stayed The district court then court in November of 2008. In a pleading filed in the sentence, execution of the with the following added.)2 (1) (Emphasis probation Revocation appellant was not remand the conditions: 39(a)(1). (2) Corrections; requires hearing. W.R.Cr.P. the Department of ed to the Perhaps because the district court contem transported to and appellant was to be (8) delivery Depart enforcement"; plated appellant's the success by "law WYSTAR program hearing WYSTAR without a the completion of the ment Corrections ful of a failure at the event district hearing possibility lead to a would participate place appellant proba appellant being allowed court did not tion, though proce even that seems to be the (4) community program; corrections an adult Instead, dure mandated the statute. program complete the WYSTAR failure to Sentence, court char arrest, the written execution of lead to immediate would Department appellant's post-sentencing transfer to the acterized the re statute, "furlough." I find no lease as (5) Corrеctions, hearing; no without however, that allows a district court to fur time would be allowed credit for served lough a felon onee that felon has been sen WYSTAR; unauthorized attendance Rather, only tenced. would constitute es absence from WYSTAR "furlough" program is the one established cape. (LexisNexis Wyo. Stat. Ann. 7-18-701 filed on A written sentence was [T11]} 2009), grants authority only which such *5 24, 2008, in which November Department of Corrections. that "execution of this sentence court stated short, I have been unable to Mittimus is accompanying order for authority locate statute or court rule admission to stayed pending the Defendant's sentence, impose prison district court to sentence, while The written WYSTAR." stay execution of release the containing provisions similar to those stated conditions, proba defendant with but not sentencing hearing, provid also orally at thе tion, have that release revoked without a granted be ed that "the Defendant shall hearing, give and not credit for time served inpatient at WYS- furlough to facility subject at a where the defendant was added.) The rest is (Emphasis TAR...." "A charge escape. to a of sentence that to histоry; upon appellant's failure com imposes punishment not authorized program, plete the he was dis WYSTAR legislature illegal." ... Endris v. arrested, transported charged, and (Wyo. Penitentiary without hearin Wyoming State 2010) (quoting Apodaca v. g.1 (Wyo.1995)). Bishop v. See also ("The legisla purportedly The distriсt court sus body empowered to determine ture is the of in this case. pended the execution punishable prescribe what crimes are 7-13-802(a)(i) (LexisNexis Wyo. Stat. Ann. acts."), punishment for overruled in 2009) those provides as follows: parton grounds other Griswold (a) plea guilty or After conviction This was offense, except punishable by crimes illegal sentence. imprisonment, following death or life conviction, entry may: imposition Suspend the or execution place the sentence and defendant on
probation.] The Mittimus is in the court [1] ._ Sentence, tence. and without have been separate along file, file attached with the Sen stamp, tothe so it 2. W.R.Cr.P. ry sentence," scheme for such a does not entitled appear modify stay. "Stay execution of the statuto-