Appeal from the District Court of Laramie County The Honorable Edward L. Grant, Judge.
The opinion of the court was delivered by: Burke, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] Wendell Jackson appeals from an Order Revoking Probation and Imposing Sentence. He contends that the district court erred in failing to award credit against his sentence for the time he spent in jail awaiting resolution of the Petition to Revoke Probation. We conclude that Mr. Jackson was entitled to credit against his sentence. Accordingly, we reverse and remand for modification of Mr. Jackson's sentence.
[¶2] Is Mr. Jackson entitled to credit against his sentence for time spent in jail pending resolution of the Petition to Revoke Probation?
[¶3] Mr. Jackson was charged with one count of Possession of a Weapon with Unlawful Intent in violation of Wyo. Stat. Ann. § 6-8-103 (LexisNexis 2007), one count of Aggravated Assault and Battery in violation of Wyo. Stat. Ann. § 6-2-502(a)(iii), and two counts of Kidnapping in violation of Wyo. Stat. Ann. §§ 6-2-201(a)(iii), (b)(i). Mr. Jackson and the State entered into a plea agreement. Mr. Jackson agreed to plead no contest to the charge of Possession of a Weapon with Unlawful Intent. That crime carries a maximum sentence of "imprisonment for not more than five (5) years, a fine of not more than one thousand dollars ($1,000.00), or both." Wyo. Stat. Ann. § 6-8-103.*fn1 In exchange for Mr. Jackson's plea, the State agreed to dismiss the remaining charges. Both parties agreed to a sentence of three to five years incarceration, suspended in favor of three years of probation. The district court accepted Mr. Jackson's plea. The court entered a judgment and sentence imposing the agreed upon three to five year sentence. The court suspended the sentence and placed Mr. Jackson on probation.
[¶4] Four months later, the State filed a petition to revoke Mr. Jackson's probation. The accompanying affidavit alleged five violations of the terms of probation: termination of his employment, two urine samples testing positive for cocaine and benzoylecgonine (a cocaine metabolite), failure to attend substance abuse counseling, and absconding from supervision. A warrant was issued for Mr. Jackson's arrest. He was arrested on July 9, 2007. On August 3, 2007, Mr. Jackson entered a plea admitting that he had violated the terms of his probation by absconding from supervision. He requested that the district court delay disposition and make referrals to several community corrections programs and an intensive supervision program. The State did not object to the request. The district court entered an order revoking probation but delayed taking further action until learning whether Mr. Jackson was accepted into any of the treatment programs. Mr. Jackson waived his right to speedy disposition pending admission decisions from those programs.
[¶5] Mr. Jackson was denied admission to all of the programs and a dispositional hearing was held on October 26, 2007. At the hearing, defense counsel requested that Mr. Jackson receive credit for all of the time he spent in jail pending resolution of the probation revocation proceedings. The State opposed any credit award. On November 26, 2007, the district court entered its Order Revoking Probation and Imposing Sentence. The district court ordered that Mr. Jackson receive credit for 55 days of the 109 he spent in jail pending probation revocation. The court imposed the underlying sentence of three to five years of incarceration, subject to that credit. Mr. Jackson appeals.
[¶6] Sentencing decisions are normally within the discretion of the trial court. Bitz v. State, 2003 WY 140, ¶ 7, 78 P.3d 257, 259 (Wyo. 2003). "Such discretion is limited, however, inasmuch as a court may not enter an illegal sentence. A sentence is illegal if it violates the constitution or other law." In re CT, 2006 WY 101, ¶ 8, 140 P.3d 643, 646 (Wyo. 2006) (internal case citation omitted). Whether a sentence is illegal is a question of law, which we review de novo. Manes v. State, 2007 WY 6, ¶ 7, 150 P.3d 179, 181 (Wyo. 2007).
[¶7] Mr. Jackson pled no contest to violating Wyo. Stat. Ann. § 6-8-103. The maximum sentence that may be imposed for conviction of that crime is five years. Wyo. Stat. Ann. § 6-8-103. A sentence that exceeds the statutory maximum is illegal. E.g., Ayers v. State, 949 P.2d 469, 470 (Wyo. 1997). A defendant's sentence may not be increased as a result of events that occur after the initial sentencing and the revocation of probation. See Yates v. State, 792 P.2d 187, 192 (Wyo. 1990); Wlodarczyk v. State, 836 P.2d 279 (Wyo. 1992), overruled on other grounds by Daugherty v. State, 2002 WY 52, ¶ 26, 44 P.3d 28, 37 (Wyo. 2002). Mr. Jackson was sentenced to the maximum sentence of five years. He was also sentenced to a minimum term of three years.*fn2 He asserts that he should receive credit against his maximum sentence for the time spent in custody pending resolution of the petition to revoke his probation because the pre-revocation time*fn3 is attributable to the underlying crime. He contends that failure to award credit resulted in a sentence that exceeded the maximum permitted by the statute. Although he does not argue this point, if Mr. Jackson correctly reasons that his maximum sentence increased as a result of the failure to receive credit, his minimum sentence also increased. This would be an impermissible increase in his minimum sentence as a result of events occurring after his initial sentencing. See Yates, 792 P.2d at 192; Wlodarczyk, 836 P.2d at 292.
[¶8] The State, relying upon our decision in Halbleib v. State, 7 P.3d 45, 49 (Wyo. 2000), contends that Mr. Jackson was not entitled to any credit against his original sentence because the incarceration pending probation revocation proceedings was not "directly attributable" to the underlying criminal charge. Mr. Jackson does not dispute the State's interpretation of Halbleib. Instead, he asks us to revisit that decision and overrule it. He contends that, in appropriate circumstances, a defendant should be awarded credit against his original sentence for time spent in ...