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Jerele Craig Cothren, Jr v. the State of Wyoming

July 30, 2012

JERELE CRAIG COTHREN, JR., APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Natrona County The Honorable David B. Park, 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] The appellant, Jerele Craig Cothren, Jr., currently faces four separate sentences from three courts for unrelated crimes. The most recent sentence, and the one upon which the appellant's appeal is based, required that the appellant serve his term of incarceration concurrent with a sentence for which the appellant is presently incarcerated, as well as consecutive to a probationary period that has yet to begin. Because it is impossible to meet both these requirements, and because the sentence as pronounced would require the period of incarceration to be interrupted by a period of probation, the sentence is illegal. We remand to the district court for resentencing.

ISSUE

[¶2] Is the sentence at issue an illegal sentence?

FACTS

[¶3] Between 2007 and 2010, three district courts sentenced the appellant on four separate occasions for various unrelated crimes. On August 21, 2007, in Natrona County, the appellant pled guilty to larceny by a bailee and received a sentence of two-to-four-years imprisonment at the Wyoming State Penitentiary, suspended in favor of three-years probation. On May 3, 2009, in Sheridan County, the appellant pled guilty to six counts of forgery and one count of identity theft and was sentenced to five-to-eight-years imprisonment on each charge, to run concurrently.*fn1 On November 18, 2009, in Platte County, the appellant pled guilty to livestock rustling and was sentenced to two-to-five-years imprisonment, suspended in favor of five-years probation. On May 30, 2010, the appellant's Natrona County probation was revoked and he was ordered to serve two-to-four-years imprisonment. Finally, regarding the sentence at issue on appeal, the appellant pled guilty to forgery, and on August 6, 2010, was sentenced by the Natrona County district court to eight-to-ten years "to be served concurrent with [the] Sheridan County [sentence], and consecutive to [the] Natrona County [sentence] and [the] Platte County [sentence]."

[¶4] The appellant started his incarceration on May 3, 2009, as a result of his Sheridan County sentence of five-to-eight years. He is also currently serving a two-to-four-year term as a result of the revocation of his Natrona County probation. If the appellant serves the maximum time on his sentences, he will be released in May 2017. At that time, the appellant would begin serving his Platte County five-year probation, which the district court ordered to be served consecutive to the Sheridan County sentence. The sentence that is being appealed, the appellant's second Natrona County sentence, was ordered to be served consecutive to the first Natrona County sentence, consecutive to the Platte County probation, and concurrent with the Sheridan County sentence.

[¶5] The appellant filed a Motion to Correct Illegal Sentence on June 20, 2011. He argued that the second Natrona County sentence is illegal because it would be impossible to serve his imprisonment concurrent with a sentence that is already running (the Sheridan County sentence) and also consecutive to a term that is yet to begin (the Platte County probation). The district court denied the appellant's motion, finding that the sentence was not illegal and was in keeping with the terms of the plea agreement. The appellant now appeals that decision.

STANDARD OF REVIEW

[¶6] The legality of a sentence is a matter of law that we review de novo. Moronese v. State, 2012 WY 34, ¶ 5, 271 P.3d 1011, 1013 (Wyo. 2012).

DISCUSSION

[ΒΆ7] The appellant is currently serving a five-to-eight-year sentence out of Sheridan County, which began on May 3, 2009. Following completion of this sentence in 2017, at the latest, the appellant is supposed to begin a five-year period of probation as a result of a sentence out of Platte County. Prior to these sentences, the appellant was sentenced by Natrona County district court to three-years probation. That probation was revoked on May 30, 2010, and the appellant was ordered to serve a term of two-to-four-years imprisonment. Although the record does not include the order revoking this probation, and the briefs, the Motion to Correct Illegal Sentence, and the transcript of the hearing on that motion differ as to ...


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