Appeal from the District Court of Laramie County The Honorable Thomas T.C. Campbell, Judge
The opinion of the court was delivered by: Voigt, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
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 any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Charles Moronese, the appellant, pled guilty to attempted second-degree murder and received a sentence of 20 to 22 years (or 240 to 264 months) imprisonment. More than four years after starting his sentence, the appellant filed a motion to correct an illegal sentence. He alleged that his sentence violated Wyo. Stat. Ann. § 7-13-201 (LexisNexis 2011) because the minimum term was greater than ninety percent of the maximum term. Rather than decrease the minimum term below the statutory minimum, as requested by the appellant, the district court increased the maximum term from 264 months to 267 months. The appellant appealed, arguing that increasing his sentence after he had begun to serve that sentence violated double jeopardy. We affirm, but remand for amendment of the sentence to include credit for time served.
[¶2] Did the district court violate the double jeopardy provisions of the Wyoming and United States Constitutions by increasing the term of the appellant's prison sentence following the appellant's motion to correct an illegal sentence?
[¶3] The appellant was originally charged with attempted first-degree murder. Ultimately, he pled guilty to attempted second-degree murder, in violation of Wyo. Stat. Ann. §§ 6-1-301(a)(i) and 6-2-104 (LexisNexis 2011), and was sentenced to a prison term of 20 to 22 years. The penalty for attempted second-degree murder is imprisonment "in the penitentiary for any term not less than twenty (20) years, or during life." Wyo. Stat. Ann. § 6-2-104. The appellant was transferred to the Wyoming State Penitentiary on June 6, 2006.
[¶4] After serving more than four years of his sentence, the appellant filed a motion to correct illegal sentence, arguing that his sentence violated the indeterminate sentencing statute. That statute requires that "the court imposing the sentence . . . shall establish a maximum and minimum term within the limits authorized for the statute violated." Wyo. Stat. Ann. § 7-13-201. The statute continues, "the minimum term shall not be less than the minimum provided by law for the statute violated, nor greater than ninety percent (90%) of the maximum term imposed." Id. The appellant correctly stated that his sentence of 20 to 22 years, or 240 to 264 months, violated this requirement because 240 months exceeds ninety percent of 264 months. To bring his sentence into compliance with this requirement, the appellant requested that the district court suspend one year of his minimum sentence, so his effective term would be 19 to 22 years. Ruling that the original sentence was illegal in violation of the indeterminate sentencing statute, the district court resentenced the appellant to a term of imprisonment of 240 to 267 months. The appellant now appeals that decision.
[¶5] Whether a sentence is illegal is a question of law we will review de novo. Manes v. State, 2007 WY 6, ¶ 7, 150 P.3d 179, 181 (Wyo. 2007).
[¶6] The appellant argues that his right not to be subjected to double jeopardy in violation of the Wyoming and United States Constitutions was violated when the district court increased his sentence as a result of his motion to correct an illegal sentence. Acknowledging that his original sentence was illegal under the indeterminate sentencing statute, the appellant contends that the proper remedy would be to decrease the minimum term from 220 months to 216 months. Finally, the appellant complains that his new sentence failed to provide credit for time served.
[¶7] The Fifth Amendment to the United States Constitution provides in part that no person shall "be twice put in jeopardy of life or limb" for the same crime. U.S. Const. amend. V. The rights provided in the Fifth Amendment are enforceable against the states through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). Additionally, the Wyoming Constitution explicitly includes the protection against double jeopardy. Wyo. Const. art. 1, § 11. "The double jeopardy provisions of the Fifth Amendment to the Constitution of the United States and Art. 1, § 11 of the Wyoming Constitution have the same meaning and are coextensive in application. . . . Each protects against . . . multiple punishments for the same ...