from the District Court of Sheridan County The Honorable
William J. Edelman, Judge
Representing Appellant: Office of the State Public Defender:
Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief
Appellate Counsel; James Michael Causey, Senior Assistant
Appellate Counsel. Argument by Mr. Causey.
Representing Appellee: Peter K. Michael, Attorney General;
Christyne M. Martens, Deputy Attorney General; Caitlin F.
Harper, Senior Assistant Attorney General; Alysia Goldman,
Assistant Attorney General. Argument by Ms. Goldman.
DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
Appellant, Steven Mitchell, was held in contempt of court for
violating a custody order. The district court ordered
confinement until Mr. Mitchell purged himself of contempt by
relinquishing custody of the minor child. While confined for
contempt, Mr. Mitchell pled no contest to one count of felony
interference with custody, in violation of Wyo. Stat. Ann.
§ 6-2-204(a)(ii) and (d)(ii) (Lexis Nexis 2017). The
district court imposed a sentence of three and one-half years
to five years of imprisonment, with no credit for presentence
incarceration. The district court also ordered the criminal
sentence to commence on termination of Mr. Mitchell's
confinement for contempt. Mr. Mitchell appeals his criminal
sentence contending it is illegal. We affirm.
Mr. Mitchell states the issue on appeal as: "Did the
district court illegally sentence Mr. Mitchell when it failed
to credit him for presentence confinement and failed to
permit him to begin serving his [criminal] sentence?"
Mr. Mitchell's criminal proceeding arose from his actions
during a lengthy custody battle over his daughter, EP. The
custody proceedings involved several jurisdictions and
provide useful context here. The State of Montana established
paternity and child support after EP's birth in 2010, but
did not formally establish custody. The parties later moved
to Wyoming where EP's mother, AP, commenced custody
proceedings. Unsatisfied with the Wyoming custody
proceedings, Mr. Mitchell, as an enrolled member of the
Cheyenne River Sioux Tribe, filed proceedings in the Cheyenne
River Sioux Tribal Court (tribal court). He also filed a
custody proceeding in Weston County, Wyoming. The record is
somewhat limited as to the civil filings in the various
jurisdictions. We glean the following facts from the exhibits
and transcripts provided in relation to Mr. Mitchell's
The parties initially agreed EP would reside with AP in
Sheridan, Wyoming, subject to liberal visitation by Mr.
Mitchell, who lived in Newcastle, Wyoming. On March 18, 2012,
Mr. Mitchell picked up EP for his usual week-long visit.
During the visit, he noticed EP was very ill. He took EP to
three different doctors before one discovered a coin lodged
in her throat. After the coin was surgically removed, Mr.
Mitchell kept EP with AP's permission until her treatment
concluded. Thereafter, he refused to return EP to her mother
and denied all contact, claiming AP was abusing and
neglecting their daughter.
AP's repeated attempts to see her daughter failed. On
July 1, 2013, AP petitioned the district court in Sheridan,
Wyoming, to formally establish custody. Mr. Mitchell answered
and, after retaining counsel, moved to dismiss the petition
or, alternatively, change the venue. During the motion
hearing, the parties advised the court of their agreement on
temporary custody and visitation, wherein Mr. Mitchell would
have primary custody subject to visitation by AP. Due to
EP's young age and the length of time AP was denied
contact with her mother, the parties agreed to a graduated
visitation schedule, beginning with supervised visitation
through a third party. The district court entered its written
order on December 11, 2013, which denied Mr. Mitchell's
motion and adopted the parties' proposed terms on
temporary custody and visitation.
Mr. Mitchell refused to comply with the ordered visitation
schedule, and AP filed a motion for an order to show cause.
Prior to the show cause hearing, Mr. Mitchell moved to
Custer, South Dakota, and retained new counsel. On February
21, 2014, Mr. Mitchell filed a motion to modify the temporary
order contending the visitation schedule was not in EP's
best interests because AP neglected EP when she was a baby
and AP had not had any meaningful contact with EP since March
2012. Three days later, the district court held the show
cause hearing and found Mr. Mitchell in contempt of court.
The district court admonished Mr. Mitchell, ordered
visitation to commence as soon as supervised visitation could
be arranged through the third party, and ordered Mr. Mitchell
to pay AP's attorney's fees and costs.
Although Mr. Mitchell completed the necessary paperwork for
supervised visitation to commence, he cancelled ten of the
eleven scheduled visits, permitting only one visit. AP filed
another motion for order to show cause. In late September
2014, the district court again found Mr. Mitchell in contempt
of court after he admitted he refused to allow supervised
visitation and telephone contact. The court admonished Mr.
Mitchell, ordered him to abide by the terms of the temporary
custody order, and ordered him to pay AP's attorney's
fees and costs incurred in bringing the second contempt
In mid-October, at Mr. Mitchell's direction, his attorney
requested a scheduling conference to set deadlines for the
custody proceeding. The next day Mr. Mitchell demanded his
attorney withdraw the scheduling conference because he wanted
a new judge prior to the custody trial, and demanded his
attorney withdraw as Mr. Mitchell's counsel. Mr.
Mitchell's attorney attempted to vacate the conference,
but the court denied the request. The district court set trial
for February 6, 2015. Mr. Mitchell's attorney provided
the order to Mr. Mitchell by email and mail. The court
permitted Mr. Mitchell's attorney to withdraw after
receiving Mr. Mitchell's written consent.
Mr. Mitchell did not appear for the custody trial and the
district court found him in default. On February 23, 2015, the
district court awarded primary custody to AP, and required
the parties to keep each other informed of their addresses
and telephone numbers, inter alia (February 2015
custody order). The district court emailed a copy of the
custody order to Mr. Mitchell. Mr. Mitchell nevertheless
refused to relinquish custody of EP and, on April 6, 2015,
the district court issued a nunc pro tunc bench warrant for
AP also sought assistance from the Sheridan police
department. After receiving the police report, the State
prepared a criminal information on April 13, 2015, charging
Mr. Mitchell with one count of felony interference with
custody, in violation of Wyo. Stat. Ann. §
6-2-204(a)(ii), (d)-(e). The circuit court issued a criminal
warrant for his arrest that same day.
After learning of the warrants for his arrest through social
media, Mr. Mitchell contacted AP and stated he was willing to
let AP see EP, but only if AP would agree to a new custody
order. Eager to reconnect with her daughter, AP agreed to Mr.
Mitchell's proposed custody and visitation terms, which
were almost identical to those she agreed to, and the court
ordered in 2013. AP and Mr. Mitchell discussed arrangements
for AP to visit EP on the weekend of July 4, 2015. Although
AP agreed to meet Mr. Mitchell on the reservation, outside of
the reach of the arrest warrants, Mr. Mitchell became
suspicious of AP, alleging she was playing games, using the
meeting as a ruse, and trying to get him in trouble. The
visitation never occurred and Mr. Mitchell refused to sign
the parenting plan he proposed.
A year later, in July 2016, Mr. Mitchell, pro se, filed a
motion requesting the district court relinquish jurisdiction
to the tribal court. When he did not obtain the relief he
desired, he turned himself in to the Weston County Sheriff in
October 2016-a year and a half after the civil and criminal
warrants issued. He did not relinquish custody of EP. Mr.
Mitchell was transported to the Sheridan County Detention
Center where he was detained on both warrants.
On October 17, 2016, Mr. Mitchell first appeared in district
court on the civil bench warrant. The district court held Mr.
Mitchell in civil contempt and ordered confinement until he
complied with the February 2015 custody order by
relinquishing custody of EP.
Later that day, Mr. Mitchell appeared in circuit court on the
criminal warrant. The circuit court set cash-only bail at
$100, 000 and noted it would readdress bond after receiving
proof EP has been returned to Sheridan County and/or the
custodial parent. The circuit court held a preliminary
hearing and bound Mr. Mitchell over to district court where
he was arraigned on November 1, 2016. Mr. Mitchell pled not
guilty and requested a bond reduction, which the district
court denied. The Honorable John G. Fenn, who oversaw the
custody proceedings and Mr. Mitchell's arraignment,
reassigned the case to the Honorable William J. Edelman for
the remainder of the criminal proceedings. Mr. Mitchell
requested another bond reduction, which Judge Edelman denied.
In November 2016, Mr. Mitchell retained new counsel and filed
a motion to set aside the February 2015 custody
order. He also moved to quash the order of
commitment and asked the district court to transfer
jurisdiction to the tribal court. The district court denied
both motions and found that Mr. Mitchell remained in civil
contempt for his continued violation of the custody order.
The district court ordered Mr. Mitchell to remain confined
until he complied with the custody order, and again ordered
him to pay AP's attorney's fees and costs.
During a December 2016 status conference in the custody
proceedings, Mr. Mitchell's counsel informed the court:
He knows that he holds the key to unlocking his contempt, and
by turning the child over, that would unlock the contempt. .
. Mr. Mitchell does not plan on doing so. . . . He will not
turn the child over. . . . He believes it will be better for
him to you [sic] sit in jail until the child's
18 and live with [Mr. Mitchell's mom], than to just be
turned over to a mother she doesn't know.
Later that month, Mr. Mitchell's counsel filed a petition
to modify the February 2015 custody order and then moved to
In February 2017, the State amended its information to
reflect two counts of interference with custody for differing
time periods. In July, Mr. Mitchell and the State entered a
plea agreement, which required the State to dismiss Count I
and amend Count II of the information to expressly permit a
five-year maximum sentence, in exchange for a plea of no
contest to Count II as amended. The district court accepted
the plea and ordered a presentence investigation on August
During the sentencing hearing in October 2017, the State
argued that probation was inappropriate because Mr.
Mitchell's interference with custody was an ongoing
offense. The State presented evidence demonstrating that even
after Mr. Mitchell changed his plea, he remained undeterred
from thwarting the February 2015 custody order, which he
considered null and void. Specifically, the State presented
recorded telephone calls where Mr. Mitchell and his mother
discussed plans to continue to pursue protective orders in
the tribal court to preclude AP from seeing EP, disqualify or
utilize political pressure on tribal judges to obtain
favorable rulings, and continue to hide EP if a protective
order was not issued.
The district court agreed Mr. Mitchell's conduct
constituted an ongoing offense and determined probation was
inappropriate, noting that as early as a week before the
sentencing hearing, Mr. Mitchell continued his efforts to
undermine the existing civil action in Sheridan County. The
court sentenced Mr. Mitchell to three and one-half years to
five years of imprisonment for violation of Wyo. Stat. Ann.
§ 6-2-204(a)(ii), (d)(ii), with no credit for
presentence confinement. The court further ordered the
criminal sentence to commence after Mr. Mitchell's civil
contempt confinement ends.
Mr. Mitchell filed a motion to reconsider his sentence,
claiming it was illegal. The district court denied the
motion. Mr. Mitchell timely filed his notice of appeal on
November 3, 2017.
"Sentencing decisions are within the broad discretion of
the sentencing court." Jones v. State, 2003 WY
154, ¶ 11, 79 P.3d 1021, 1025 (Wyo. 2003) (citing
Smith v. State, 941 P.2d 749, 750 (Wyo. 1997)). In
our review for an abuse of discretion, we must
"determine whether the trial court could reasonably
conclude as it did and whether any facet of its ruling was
arbitrary or capricious." Herrera v. State,
2003 WY 25, ¶ 10, 64 P.3d 724, 727 (Wyo. 2003)
(citations omitted). The sentencing court's discretion is
also limited "inasmuch as a court may not enter an
illegal sentence." Bird v. State, 2015 WY 108,
¶ 9, 356 P.3d 264, 267 (Wyo. 2015) (citations omitted).
"A sentence is illegal when it exceeds statutory limits,
imposes multiple terms of imprisonment for the same offense,
or otherwise violates constitutions or the law."
Palmer v. State, 2016 WY 46, ¶ 9, 371 P.3d 156,
158 (Wyo. 2016) (citations and internal quotation marks
omitted). "[W]hether a sentence is illegal is a question
of law, which we review de novo." Manes v.
State, 2007 WY 6, ¶ 7, 150 P.3d 179, 181 (Wyo.
2007) (citations omitted).
Mr. Mitchell contends the district court imposed an illegal
sentence. He first argues his criminal sentence violates the
double jeopardy clause of the federal and state constitutions
because he was punished twice for the same act - the failure
to comply with the February 2015 custody order. Mr. Mitchell
also alleges the court unlawfully increased the statutory
minimum and maximum sentence for interference with custody by
denying credit for presentence confinement and delaying the
commencement of his criminal sentence. He further asserts the
court wrongfully denied credit for presentence confinement
because he could not post bail due to the conditions imposed
by the court. The State counters that the criminal sentence
is not illegal because the court imposed a single sentence
for interference with custody that was within the statutory
limits, the bail conditions imposed did not violate any
constitutional rights or other law, and the district court
properly exercised its discretion when it ordered the
criminal sentence to commence after Mr. Mitchell purged
himself of contempt in the custody proceeding. We address Mr.
Mitchell's double jeopardy claim first.