Appeal from the District Court of Sheridan County, The Honorable John G. Fenn, Judge.
The opinion of the court was delivered by: Burke, Justice.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶1] Matthew Endris pleaded guilty to a charge of driving while under the influence of alcohol. Consistent with the plea agreement between Mr. Endris and the prosecution, the district court imposed a sentence that allowed Mr. Endris to be released from jail to participate in an alcohol treatment program. The district court informed Mr. Endris that, during his release, he would be considered both on probation and in official detention. Mr. Endris was released, but he failed to enroll in the treatment program. His probation was revoked, and in a separate case, he was convicted of escaping from official detention. In these consolidated cases, he appeals both the revocation of his probation and the conviction on the escape charge. He contends that the sentence he received on the charge of driving while under the influence is illegal because it subjected him to both probation and incarceration at the same time.
[¶2] We agree that the sentence is not authorized under the applicable Wyoming statutes. We will therefore reverse both the revocation of his probation and his conviction for escape. We will also vacate the illegal sentence on the underlying charge of driving while under the influence, and remand this case to the district court for resentencing.
[¶3] Mr. Endris states the dispositive issues*fn1 this way:
1. Did the trial court err as a matter of law in finding that Mr. Endris escaped from official detention when the underlying sentence under W.S. § 7-13-107 was an illegal sentence, and therefore null and void?
2. Did the trial court err in revoking Mr. Endris‟s probation, as Wyoming law does not provide probation to be served concurrently with incarceration for the same offense?
The State combines the two issues into one:
1. Was Appellant in official detention, in effect serving the custodial portion of his split sentence, when he escaped, such that his escape conviction must be affirmed but his probation revocation must be vacated?
[¶4] Mr. Endris was charged with driving while under the influence of alcohol, a violation of Wyo. Stat. Ann. § 31-5-233 (LexisNexis 2007). Because of prior convictions on similar charges, Mr. Endris was charged with a felony. He pleaded guilty pursuant to a plea agreement, in which the prosecution agreed to recommend a sentence of eighteen to twenty-four months in prison, suspended in favor of a "split" sentence requiring Mr. Endris to spend one year in the county jail and one year on supervised probation. The agreement also provided that Mr. Endris would be released from jail to attend an in-patient alcohol treatment program.
[¶5] The district court accepted the guilty plea. Despite concerns that the recommended sentence seemed too "favorable" in light of Mr. Endris‟s criminal record, the district court also accepted the recommended sentence with this explanation:
However, since the county attorney was willing to go along with this and give you an opportunity... certainly the Court does not want to interfere with the ...