Appeal from the District Court of Big Horn County The Honorable John C. Brackley, Judge
The opinion of the court was delivered by: Kite, Chief Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
KITE, C.J., delivers the opinion of the Court; VOIGT, J., files a specially concurring opinion.
NOTICE: 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] After Craig Winstead pled guilty to three counts of third degree sexual assault, the district court sentenced him to serve sentences of ten to fifteen years on each count with the sentence on the first count to be served first and the sentences on the second and third counts to be served consecutively to the first sentence and concurrently with each other. Mr. Winstead subsequently filed a motion to correct an illegal sentence pursuant to W.R.Cr.P. 35(a), claiming his sentences should have merged and asking the court to order that he serve his sentences concurrently. The district court denied the motion. Mr. Winstead appealed. We conclude his claim is barred by the doctrine of res judicata and affirm.
[¶2] Mr. Winstead's pro se brief does not contain a statement of the issue. The State presents the issue for this Court's consideration as follows:
Is [Mr. Winstead]'s claim barred from review by the doctrine of res judicata? If not, did the district court abuse its discretion when it denied [his] motion for correction of an illegal sentence?
[¶3] In March of 2007, the prosecuting attorney in Big Horn County, Wyoming, filed a criminal warrant and information alleging that Mr. Winstead had committed three counts of incest in violation of Wyo. Stat. Ann. § 6-4-402(a)(ii) (LexisNexis 2011) and three counts of third degree sexual assault in violation of § 6-2-304(a)(ii) (LexisNexis 2007) (repealed by Laws 2007, ch. 159 § 3). The charges involved three different victims. The parties entered into a plea agreement in which Mr. Winstead agreed to plead guilty to counts IV, V, and VI alleging third degree sexual assault and the prosecutor agreed to dismiss counts I, II and III alleging incest. The district court convened a change of plea hearing in October of 2007 followed by a sentencing hearing on January 15, 2008. The court entered a judgment and sentence in February of 2008, ordering Mr. Winstead to serve ten to fifteen years on each of the third degree sexual assault counts, serving the time for count IV first and, upon completion of that sentence, serving the time for counts V and VI concurrently. Mr. Winstead filed a timely notice of appeal; subsequently, however, he moved for dismissal of the appeal. This Court granted the motion.
[¶4] In June of 2008, the prosecutor filed a motion to amend the judgment and sentence. The prosecutor asserted the original judgment and sentence did not contain a finding of the period of pre-sentence confinement Mr. Winstead served as required by W.R.Cr.P. 32(c)(2)(E) and (F) and sought clarification of whether Mr. Winstead was to serve count IV first and counts V and VI concurrently to each other but consecutively to count IV. The record contains an affidavit from the Big Horn County detention center stating Mr. Winstead served 396 days pre-sentence confinement for which he should be credited. The district court took no action on the motion.
[¶5] In January of 2009, Mr. Winstead filed a motion for sentence reduction on the grounds that he had complied with penitentiary rules, worked well with the staff, completed stage I of sex offender group therapy, and worked continuously during his confinement. He asked the district court to place him on probation for the rest of his life, place him under house arrest, prohibit contact with anyone under the age of eighteen, place him on a monitor, and require him to continue treatment. The district court ordered the penitentiary to submit a progress report within thirty days. The record contains nothing further concerning the motion or the court's order.
[¶6] In April of 2009, Mr. Winstead filed a motion asking the district court to enter a judgment and sentence nunc pro tunc reflecting that he was entitled to credit for 396 days presentence confinement. He attached the same affidavit referenced in paragraph 4 above. The district court entered a judgment and sentence nunc pro tunc amending the earlier judgment and sentence to require that Mr. Winstead receive credit for 396 days of presentence confinement.
[¶7] In November of 2010, Mr. Winstead filed a motion to correct illegal sentence under W.R.Cr.P. 35(a) and asking for appointment of counsel. He asserted that his sentence was illegal under the double jeopardy clause of the Fifth Amendment because it required him to serve his sentence on count IV first and then serve the sentences on counts V and VI concurrently. He argued the sentences should have merged. He asked the district court to correct the sentence by ordering that the three sentences be served concurrently. After a hearing, the district court entered ...