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
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.
DAVIS, C.J., and BURKE [*] [†] , FOX, KAUTZ and
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.
Is the reduced sentence requested by Mr. Nitchman and ordered
by the district court illegal?
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.
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
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.
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.