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Hernandez v. State

April 8, 2009

MARK ROCKY HERNANDEZ, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Natrona County, The Honorable W. Thomas Sullins, Judge.

The opinion of the court was delivered by: Voigt, Chief Justice

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

[¶1] This is an appeal from the denial of a motion to correct an illegal sentence. The appellant seeks credit for pre-sentence confinement. Finding no error, we affirm.

ISSUE

[¶2] Did the district court err as a matter of law in denying the appellant's Motion to Correct an Illegal Sentence?

STANDARD OF REVIEW

[¶3] A sentence that does not include proper credit for presentence confinement is illegal. 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) (internal citations omitted).

FACTS

[¶4] On July 8, 2003, the appellant was sentenced to a term of four to ten years incarceration for the felony crime of conspiracy to deliver a controlled substance. As a result of that sentence, the appellant was an inmate at the Community Re-Entry Center (CRC) in Casper, Wyoming. On September 4, 2007, he was charged with failing to return to CRC after a work assignment. On December 28, 2007, he pled guilty to escape from official detention. The plea was entered pursuant to the terms of an agreement whereby the appellant would receive a sentence of three to five years incarceration, to run concurrently with the drug conspiracy sentence. In explaining the plea agreement, the prosecutor told the district court the following:

Mr. Hernandez would receive credit for time served from his arrest in this particular matter. I think he has substantial credit against the -- the -- oh [the drug conspiracy sentence]. He would not receive credit, but these would be run concurrent.

[¶5] At the sentencing hearing on February 27, 2008, the following colloquy occurred:

THE COURT: Presuming you're in agreement, there will be no credit for time served, since he's been receiving credit for the other sentence up until this?

[DEFENSE COUNSEL]: I think legally speaking that will be accurate, Your Honor. He was never paroled, so he's always been ...


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