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Matthew C. Kurtenbach v. the State of Wyoming

December 20, 2012

MATTHEW C. KURTENBACH, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Weston County The Honorable Keith G. Kautz, Judge

The opinion of the court was delivered by: Golden, Justice.

Before KITE, C.J., and GOLDEN,*fn1 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] On September, 18, 2008, this Court affirmed Matthew Kurtenbach's conviction for making a false written statement to obtain property. On May 20, 2011, Kurtenbach filed in district court a motion entitled "Motion to Execute Sentence." The district court denied Kurtenbach's motion, and Kurtenbach appeals that denial. We conclude that the district court did not have jurisdiction to consider the "Motion to Execute Sentence," and therefore this Court likewise does not have jurisdiction to consider this appeal. The appeal is thus dismissed.

ISSUE

[¶2] Kurtenbach presents the following issue on appeal:

Should the district court's sentence be ordered to be executed to give effect to subsequent sentences in other jurisdictions and to avoid an illegal sentence?

FACTS

[¶3] On May 14, 2007, Kurtenbach entered a conditional guilty plea to a charge of making a false written statement to obtain property, reserving the right to appeal his claim that his right to a speedy trial had been violated. The district court sentenced Kurtenbach to incarceration for a period of two to five years. Kurtenbach appealed, and on April 23, 2008, he was ordered released on an appeal bond.

[¶4] While Kurtenbach was released on his appeal bond, South Dakota authorities arrested him for crimes committed between April 28, 2008 and June 26, 2008. He was charged and convicted in multiple South Dakota counties, and then in North Dakota counties, for various charges. The respective courts ordered most of Kurtenbach's sentences to run concurrently with each other and with Kurtenbach's Wyoming sentence. Kurtenbach remained incarcerated in the Dakotas throughout the pendency of his Wyoming appeal.

[¶5] On September 18, 2008, this Court issued its decision affirming Kurtenbach's Wyoming conviction. Kurtenbach v. State, 2008 WY 109, 192 P.3d 973 (Wyo. 2008). On December 23, 2008, the district court revoked Kurtenbach's appeal bond and remanded him to custody of the Wyoming Department of Corrections. On January 30, 2009, the State notified the warden of the North Dakota State Penitentiary of Kurtenbach's Wyoming conviction and sentence, and it placed a detainer on Kurtenbach to ensure his return to Wyoming custody upon his release from North Dakota.

[¶6] Prior to this Court's decision affirming Kurtenbach's conviction, Kurtenbach began sending multiple letters to the district court insisting that the court order that his Wyoming sentence began to run while he was incarcerated in North and South Dakota. By letter dated February 23, 2011, the district court informed Kurtenbach as follows:

The court has received your letter dated February 1, 2011. At this time, the court has thoroughly reviewed your file, including the transcript of your sentencing in this matter. Upon review, the court has confirmed that the court never entered an order stating that your sentence in this matter was to run concurrently with your South Dakota or North Dakota sentences. In fact, the court has previously informed you that it would not consider your case appropriate for concurrent sentencing. Although the appeal bond has been returned in this matter, you[r] sentence does not begin to run until you are actually incarcerated in the State of Wyoming. Ms. O'Brien's interpretation of your file is correct.

As to the copy of the order from South Dakota that you provided to the court, the court would inform you that South Dakota does not have the authority to order that Wyoming run its sentences concurrently with South Dakota cases. Any mention of concurrent sentencing in ...


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