Original Proceeding Certified Questions from The District Court of Campbell County The Honorable John R. Perry, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made before final publication in the permanent volume.
[¶1] The circuit court imposed a sentence on Claude Robert Crosby that exceeded the maximum authorized by the relevant statute. After serving part of the sentence in the community corrections facility where he had been placed, Mr. Crosby left without authorization. He was charged with escape and claims the charge is improper because he was serving an illegal sentence at the time he left the facility. Upon the parties' stipulation, the district court certified two questions to this Court:
1. Whether the original sentence was void ab initio in its entirety, or is it an illegal sentence subject to correction under Rule 35(a), Wyoming Rules of Civil Procedure?
2. Given that the escape charge in the above-captioned matter was filed at a time when the sentence was illegal, is it proper to continue the prosecution of the Defendant for escape, should this Court find that the original sentence was illegal and subject to correction?
[¶2] We answer the first part of question 1 "no"; the original sentence was not void ab initio in its entirety. We answer the second part of question 1 "yes"; the original sentence was subject to correction under W.R.Cr.P. 35(a). We answer the second question "yes"; it was proper to continue the prosecution of Mr. Crosby for escape.
[¶3] Mr. Crosby was arrested in Converse County, Wyoming on December 6, 2007, for driving while under the influence of alcohol in violation of Wyo. Stat. Ann. § 31-5-233(b)(ii) (LexisNexis 2009). He was incarcerated in the Converse County Detention Center. On December 11, 2007, he was found guilty in circuit court of driving under the influence, his third offense. The circuit court sentenced him to 365 days in jail with 270 days suspended and 5 days credit for time served from his arrest until sentencing, leaving a balance of 90 days to be served.
[¶4] Mr. Crosby served two more days in the detention center and was then transferred to a correctional facility in Campbell County to serve the 88 days remaining on his sentence. Prior to the expiration of the 88 days, Mr. Crosby allegedly left the facility for his work site, reported to his employer and then left the work site without permission. He was charged with escape in violation of Wyo. Stat. Ann. § 6-5-206(a)(ii)(A) (LexisNexis 2009). On March 4, 2010, he was apprehended and brought to the Campbell County detention center.
[¶5] On April 30, 2010, the circuit court in Converse County, which had imposed the DUI sentence, filed an Order Nunc Pro Tunc reducing Mr. Crosby's sentence of 365 days to 180 days with 90 days suspended. Subsequently, Mr. Crosby filed a motion to dismiss the escape charge in Campbell County asserting it could not stem from an illegal sentence. The State responded, contending the original sentence remained in force because it had not been appealed and could not be challenged in a collateral proceeding. The State argued further that the circuit court properly corrected the sentence and the 90 days Mr. Crosby was ordered to serve was within the maximum sentence authorized by the statute. The district court certified the questions set forth in paragraph 1 above to this Court.
[¶6] The question of whether a sentence is illegal is one of law, which we review de novo. Sarr v. State, 2007 WY 140, ¶ ...