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Representing Appellant: Office of the State Public Defender: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel. Argument by Mr. Alden.
Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; Theodore R. Racines, Senior Assistant Attorney General; Christyne Martens, Assistant Attorney General. Argument by Ms. Martens.
Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
[¶ 1] Appellant Jerele Cothren returns to this Court to challenge an amended judgment and sentence issued by the District Court for the Seventh Judicial District following remand for resentencing. We find that the sentence imposed on remand is still illegal for reasons discussed below, and reverse and remand for entry of an amended sentence.
[¶ 2] Cothren raises four issues, which we restate as follows:
1. Did the district court abuse its discretion in refusing to allow Cothren to withdraw his guilty plea?
2. Did the district court err when it declined to retroactively reject the plea agreement it had accepted two years earlier, and to sentence Cothren anew while holding the State to its agreement to dismiss thirteen of fourteen charges?
3. Did the district court err by attempting to cure the illegality of Cothren's sentence without adjusting its length on the basis of his efforts to reform himself while in prison?
4. Did the district court improperly grant Cothren credit for time served or otherwise impose an illegal sentence?
[¶ 3] As we noted in Cothren's first appeal, Cothren v. State, 2012 WY 102, 281 P.3d 352 (Wyo.2012)( Cothren I ), the sentence in this case is one of four imposed for unrelated crimes by three district courts between 2007 and 2010. In 2007, he was sentenced to two to four years of incarceration on a conviction for larceny by bailee in Natrona County. The Natrona County district court suspended Cothren's term of incarceration in favor of three years of supervised probation. Id. at ¶ 3, 281 P.3d at 353-54. In early 2009, the district court in Sheridan County sentenced him to seven concurrent prison terms of five to eight years for six counts of forgery and one count of identity theft. Id.
[¶ 4] Later that year, Cothren was sentenced to a two-to-five-year term of imprisonment for livestock rustling in Platte County, which the district court there suspended in favor of a term of five years of supervised probation, which was to begin after Cothren served the Sheridan County sentence. In May of 2010, his probation in the first Natrona County case was revoked and the district court imposed the term of two to four years of imprisonment which had been suspended. Id. As discussed below, although the record is not clear, the parties agree that the sentence on the first Natrona County case was to run consecutively to the Sheridan County case after probation was revoked.
[¶ 5] On August 6, 2010, the Natrona County District Court sentenced Cothren to a term of eight to ten years imprisonment for forgery. The court ordered that sentence to run concurrently with the Sheridan County sentence and consecutively to the sentence in the first Natrona County case and the Platte County sentence. Id.
[¶ 6] The judgment and sentence in Cothren's present case, the second Natrona County conviction, was filed on May 3, 2011. On June 20, 2011, Cothren filed a motion asking the district court to correct his sentence, which he claimed was illegal. In his motion, and at the hearing on that motion, he suggested that the sentences in both the first Natrona County case and the Platte County case were to run consecutively to the Sheridan County sentence. He argued that the second Natrona County sentence could not simultaneously be consecutive to the first Natrona County sentence and concurrent with the Sheridan County sentence, and that the second Natrona County sentence could not simultaneously be concurrent with the imposed Sheridan County sentence and consecutive to the probationary period of the Platte County sentence. Id. at ¶ 5, 281 P.3d at 354. Cothren abandoned the first argument and proceeded solely on the second in his appeal from the denial of that motion, and this Court limited its consideration to that issue in Cothren I.
[¶ 7] We remanded the case to the district court to correct a sentence that we held to be illegal in two respects. It was impossible to serve that sentence both concurrently with the Sheridan County sentence and consecutively to the Platte County probation that was consecutive to the Sheridan County sentence, and it was unlawful to have Cothren serve his second Natrona County sentence in two installments separated by the Platte County probation. Id. at ¶ 14, 281 P.3d at 356.
[¶ 8] Cothren moved to withdraw his guilty plea, which would effectively negate what the parties regard as a plea based on a joint sentencing recommendation under W.R.Cr.P. 11(e)(1)(B). The plea agreement resulted in the dismissal of thirteen additional felony forgery counts. However, Cothren's counsel asked the district court to treat his existing guilty plea to one count of forgery as a " cold plea," or a plea made without a plea agreement. This might arguably allow Cothren to keep the benefit of the plea agreement (the dismissal of thirteen felony charges), while permitting him to argue for a lesser sentence on the one remaining count.
[¶ 9] Cothren also requested an updated presentence investigation report which he anticipated would reflect successful efforts at rehabilitation while in prison. The district court declined to order an updated presentence investigation, but it allowed Cothren to testify as to his rehabilitation at the resentencing hearing. It also allowed Cothren to call his sister, the victim of the forgery, to testify in favor of probation.
[¶ 10] The record reflects that the district judge in Natrona County was advised by the district judge in Platte County that he had discharged Cothren from his Platte County probation before the resentencing hearing. Cothren also testified that he had been paroled from his Sheridan County sentence to
serve the incarceration required by his first Natrona ...