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Nitchman v. State

Supreme Court of Wyoming

October 16, 2018

GEORGE DANIEL NITCHMAN, Appellant (Defendant),
v.
THE STATE OF WYOMING, Appellee (Plaintiff).

          Appeal from the District Court of Washakie County The Honorable Robert E. Skar, Judge

          Representing Appellant: Office of the State Public Defender: Diane M. Lozano, State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; James M. Causey, Senior Assistant Appellate Counsel.

          Representing Appellee: Peter K. Michael, Attorney General; Christyne M. Martens, Deputy Attorney General; Caitlin F. Harper, Senior Assistant Attorney General; Rachel Berkness, Assistant Attorney General.

          Before DAVIS, C.J., and BURKE [*] [†] , FOX, KAUTZ and BOOMGAARDEN, JJ.

          BURKE, JUSTICE.

         [¶1] Appellant, George Daniel Nitchman, appeals from a district court order revoking his probation and ordering that he serve the remaining portions of a prison sentence that had been suspended. He contends that the underlying sentence is illegal. We affirm.

         ISSUE

         [¶2] Is the reduced sentence requested by Mr. Nitchman and ordered by the district court illegal?

         FACTS

         [¶3] In 2007, Mr. Nitchman pleaded guilty to unlawful manufacture of a controlled substance and unlawful possession of a controlled substance. He was sentenced to serve a prison sentence of seven to ten years on the first count and three to five years on the second count, the terms to be served consecutively. In January 2008, Mr. Nitchman filed a Motion to Reduce Sentence. The district court granted the motion ordering that if Mr. Nitchman completed eighteen months of incarceration without incident, the remainder of his sentence on the first count would be suspended and he would be released on probation to complete a drug treatment program. Upon successful completion of that program, Mr. Nitchman's sentence on the second count would also be suspended, and he would be required to serve five years of probation on the first count followed by another five years of probation on the second count.

         [¶4] In 2008, Mr. Nitchman was indicted by a federal grand jury on eight counts, including one count involving possession of a firearm and ammunition while being an unlawful user of or addicted to any controlled substance. The federal charges apparently arose from the same conduct that resulted in the State charges at issue in this case. Mr. Nitchman was taken into federal custody from the Wyoming Department of Corrections on November 20, 2008, approximately four months before his state sentence was scheduled to be suspended and he was to be released on probation. He attempted to reach a plea agreement to resolve the federal charges, but the underlying state sentence was an impediment to the proposed resolution. Mr. Nitchman and the State filed a Stipulated Motion Requesting the Court to Modify Order Granting Sentence Reduction. In the motion, they advised the district court that the plea agreement under consideration in the federal case would require Mr. Nitchman to serve three years of incarceration in the federal prison system, followed by a one-year residential drug and alcohol treatment program, and five additional years of supervised release. They told the court that federal authorities would not allow Mr. Nitchman to begin his federal sentence until he had "completed all of his state sentence" and that the federal authorities would not release Mr. Nitchman to serve his "state probation or a drug treatment program until he has completed his federal sentence." According to the motion, this would require Mr. Nitchman to serve the original state prison sentence that had been ordered on both counts before he could begin serving the federal prison sentence. In the stipulated motion, both parties agreed that no one intended Mr. Nitchman to serve such a lengthy prison sentence.

         [¶5] The parties asked the district court to suspend the state sentence as of the date Mr. Nitchman was taken into federal custody and order that probation on the state charges would begin when Mr. Nitchman was released from federal custody. The five years of probation on Count I of the state sentence would begin upon his release from federal prison and would run concurrently with his federal supervised release. Probation on Count II would begin after Mr. Nitchman completed probation on Count I. The district court granted the motion and entered an order modifying Mr. Nitchman's sentence in accordance with the motion. This is the sentence Mr. Nitchman now claims is illegal.

         [¶6] Mr. Nitchman was released from federal prison in 2011, and began to serve his state probation on Count I. In 2014, the State moved to revoke his probation. Mr. Nitchman entered admissions to some of the alleged violations, and the district court revoked and reinstated his probation. In 2016, the State again moved to revoke Mr. Nitchman's probation. After a hearing, the district court determined that Mr. Nitchman had again violated terms of his probation, revoked the probation, and reinstated the original sentence with credit for time served. This timely appeal followed.

         STANDARD ...


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