Appeal from the District Court of Natrona County The Honorable David B. Park, Judge
The opinion of the court was delivered by: Hill, 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] Joseph F. Dax filed this pro se appeal contesting an order denying him credit for time served. Dax claims he should receive credit against his state sentence for time spent in pre-trial detention on a federal charge. We affirm.
[¶2] Although no issue is stated in Dax's brief, he argues in the body of his brief that his state sentence should be credited with time served, beginning from his date of arrest on the federal charge.
[¶3] Both Dax's state and federal prosecution arise from a Casper burglary that involved theft of firearms in violation of 18 U.S.C. § 922(g)(1). In May of 2002 federal authorities arrested Dax on a charge of a felon in possession of firearms. Shortly thereafter, the State charged Dax with aiding and abetting burglary in violation of Wyo. Stat. Ann. §§ 6-3-301(a)(c)(i) and 6-1-201 (LexisNexis 2011) and with conspiracy to commit burglary in violation of Wyo. Stat. Ann. § 6-1-303 (LexisNexis 2011). The State also lodged a detainer and requested that Dax be transferred to State custody after the federal prosecution.
[¶4] In August of 2002 Dax pled guilty to the federal charge, and in November of 2002 the federal court sentenced him to a minimum term of 15 years in prison. That same month, the State acquired custody of Dax and its prosecution proceeded. Dax also pled guilty at the state level to aiding and abetting, while the conspiracy charge was dismissed. The State agreed that Dax's state sentence would be served concurrently with the federal sentence. In April of 2003 the state district court sentenced Dax to 20 to 25 years to run concurrently with the federal sentence. At that time, Dax requested credit for time served, and the district court ruled that Dax was entitled to credit for time he served solely on the state charge but that he was not entitled to credit for time he served while he served the federal sentence. The State argued that Dax was not entitled to any credit because the federal court imposed sentence before he was transferred to state custody. The state judgment and sentence was silent on the matter of credit for time served.
[¶5] Subsequent to the judgment and sentence, Dax began four legal proceedings. First, he took a direct appeal but voluntarily dismissed it in December of 2003. Second, in April of 2004 he filed a motion for sentence reduction based on good behavior and in that motion requested credit for time served in federal pre-trial confinement. The district court denied that motion without a hearing and Dax did not appeal. Third, in December of 2004 Dax filed another motion for sentence reduction. The State actually supported this motion because Dax had cooperated against another offender. In the motion Dax again requested credit for pre-sentence confinement but did not specify whether he meant federal presentence confinement or state presentence confinement, or both. The district court denied the motion this time after a hearing and again Dax did not appeal. Fourth, and finally, Dax instituted this present action in May of 2011.
[¶6] In this action Dax filed a pro se motion to correct an illegal sentence. He again requested credit for time served, which the district court denied and stated:
Defendant is not entitled to credit for time served in this case because he has failed to show that his confinement was attributable only to the specific charges in this case. Defendant's motion indicates that he was arrested on May 31, 2002, on a federal criminal charge. Defendant then states that on or about May 31, 2002, a detainer was lodged against him by the State of Wyoming for charges that led to the sentence in the above-captioned case. Defendant has failed to show that he would have been released from federal custody if the State of Wyoming had not placed a detainer.