Appeal from the District Court of Campbell County. The Honorable John R. Perry, Judge.
For Appellant: P. Craig Silva, Williams, Porter, Day & Neville, P.C., Casper, Wyoming.
For Appellee: Peter K. Michael, Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General.
Before KITE, C.J., and HILL, VOIGT[*], BURKE, and DAVIS, JJ.
[¶1] Appellant, Auston Davis Coy, was arrested in 2011 and charged with three crimes. At the time of his arrest, Mr. Coy was on probation for crimes he had committed in 2008. In addition to charging Mr. Coy with the new crimes, the State also sought to revoke Mr. Coy's probation. Prior to trial, Mr. Coy and the State entered into a plea agreement. The terms of that plea agreement are the crux of this appeal. Mr. Coy contends that the sentence imposed was not in accordance with his plea agreement. He seeks modification of the sentence to conform to the terms of the plea agreement. We find that the sentence imposed was not in accord with the plea agreement and was an illegal sentence because it cannot be completed in a " single stretch" or without interruption by another prison sentence. We reverse and remand for entry of an amended sentence.
[¶2] Did the district court enter an illegal sentence?
[¶3] In 2008, Mr. Coy pled guilty to burglary, felony property destruction, and aggravated assault in Criminal Docket No. CR-5008. The district court imposed concurrent sentences of 2 1/2 to 8 years (30 to 96 months) each for the burglary conviction (Count I) and the felony property destruction conviction (Count II). The court sentenced Mr. Coy to 3 to 10 years (36 to 120 months) for the aggravated assault conviction (Count III), which it ordered to be served consecutively to the sentences for Counts I and II. The court recommended that Mr. Coy participate in the Youthful Offender Program, also known as " Boot Camp," offered by the Department of Corrections. Following Mr. Coy's admission to and successful completion of the Youthful Offender Program, the court suspended the balance of his prison term in favor of a fifteen-year period of supervised probation.
[¶4] In November, 2011, in Criminal Docket No. CR-5923, the State charged Mr. Coy with burglary, conspiracy to commit burglary, and possession of a controlled substance. Pursuant to a plea agreement, Mr. Coy agreed to plead guilty to the burglary charge and the State agreed to dismiss the other two charges. Under the agreement,
Mr. Coy would receive a prison sentence of 5-10 years. Additionally, Mr. Coy's probation in Criminal Docket No. CR-5008 would be revoked and the original sentence would be imposed. The dispute in this case involves whether the 5-10 year sentence was to run concurrently with the sentence in Criminal Docket No. CR-5008.
[¶5] The plea agreement was never reduced to writing, and neither the prosecutor nor defense counsel set forth the terms of the plea agreement on the record. At the sentencing hearing, the district court advised Mr. Coy that it would impose " a sentence of not less than five nor more than 10 years, which will run concurrently with the first of your criminal files in the other matter." Mr. Coy advised the court that his understanding of the plea agreement was that the 5-10 year sentence would run concurrently with the sentences for all three counts in CR-5008. The district court instructed Mr. Coy to consult with his attorney. After a brief visit with his counsel, Mr. Coy advised the court that he was prepared to proceed. There was no further discussion of the terms of the plea agreement. At the conclusion of the hearing, the district court announced the sentence: " I will impose a sentence of not less than five nor more than 10 years on the burglary count, which will run concurrently with the other sentence on your probation revocation, and you'll be remanded to the Department of Corrections today."
[¶6] On March 1, 2012, the court issued its Judgment and Sentence in Criminal Docket No. CR-5923, sentencing Mr. Coy to 5-10 years in prison for the burglary conviction, " to run and be served concurrent to the sentence in Count I in Criminal Case 5008." On the same day, the court issued an order revoking Mr. Coy's probation in Criminal Docket No. CR-5008. The court reimposed Mr. Coy's original sentences on all counts in Criminal Docket No. CR-5008, with credit for 406 days served against the sentences for Counts I and II.
[¶7] Shortly thereafter, on March 8, 2012, Mr. Coy wrote a letter to the court in which he claimed he had not received the benefit of his plea agreement. Mr. Coy stated that " What I was told that was to be my plea agreement and what happened were two different things." According to Mr. Coy, his understanding of the plea agreement was that he would receive a 5 to 10 year sentence " to be run concurrent from the beginning." The district court responded on March 9, stating that it was " having a hard time understanding" Mr. Coy's objection. The court wrote that " If you are complaining that you did not get a plea agreement on your probation revocation, given your checkered performance on probation it is doubtful that the court would have accepted any sort of agreement."
[¶8] In October, 2012, Mr. Coy filed a " Motion for Order Nunc Pro Tunc," which requested that the district court amend the Judgment and Sentence to read that Mr. Coy's sentence in Criminal Docket No. CR-5923 would run concurrently with all the sentences issued in Criminal Docket No. CR-5008. Mr. Coy's motion stated that the Judgment and Sentence " should read" that his sentence in Criminal Docket No. CR-5923 is " to run and be served concurrent to the sentence in Count I, II, and III in Criminal Case 5008." The State filed a traverse to Mr. Coy's motion on November 30, asserting that " It is clear, on the record, that the judgment and sentence accurately reflects the deal that the Defendant received." The district court denied Mr. Coy's motion.
[¶9] The present case began on February 19, 2013, when Mr. Coy filed a " Rule 35 Motion to Correct Illegal Sentence and/or Motion for Sentence Reduction."  In that motion, Mr. Coy claimed that " [i]t was the intention of the parties involved" that his sentence in Criminal Docket No. CR-5923 was to be served concurrently with each of the sentences imposed in Criminal Docket No. CR-5008. ...