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Swain v. State

November 19, 2009

NATHAN HANS SWAIN, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Laramie County, The Honorable Michael K. Davis, Judge.

The opinion of the court was delivered by: Golden, Justice.

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

ISSUES

[¶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?

FACTS

[¶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.

[ΒΆ7] 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 ...


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