Swain v. State

2009 WY 142, 220 P.3d 504, 2009 Wyo. LEXIS 154, 2009 WL 3857413
CourtWyoming Supreme Court
DecidedNovember 19, 2009
DocketS-08-0280
StatusPublished
Cited by25 cases

This text of 2009 WY 142 (Swain v. State) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swain v. State, 2009 WY 142, 220 P.3d 504, 2009 Wyo. LEXIS 154, 2009 WL 3857413 (Wyo. 2009).

Opinion

GOLDEN, Justice.

[T1] Appellant Nathan Hans Swain appeals the district court's order denying him credit for time served on three separate probation revocation actions. Swain also appeals his conviction for indirect criminal contempt arising from his failure to comply with the district court's order requiring him, as a condition of probation, to attend and complete an inpatient substance abuse treatment program. For the reasons set forth below, we conclude Swain is entitled to additional credit against his sentence, and that his conviction for indirect criminal contempt cannot stand. We reverse and remand for further proceedings consistent with this opinion.

ISSUES

[¶2] Swain presents the following issues:

I. Did the trial court err by imposing an illegal sentence?
II. Did the trial court err by violating Appellant's due process rights by imposing contempt sanctions after improper service, failing to inform Appellant of the consequences of his plea and subjecting Appellant to double jeopardy?

*506 FACTS

[¶8] In January 2007, Swain pled guilty to felony battery against a household member in violation of Wyo. Stat. Ann. § 6-2-501(b) and (F() (LexisNexis 2007). He was sentenced to three to five years in prison, with credit for 275 days of presentence confinement. Execution of that sentence was suspended, and he was placed on four years of supervised probation.

[T4] Between October 2007 and August 2008, the State filed three separate revocation petitions because Swain violated the terms of his probation. The first revocation petition alleged that Swain had used marijuana and absconded from supervision. Swain was arrested on October 15, 2007, and subsequently admitted the allegations contained in the petition. On January 10, 2008, the district court revoked and reinstated his probation. A condition of that probation required Swain to successfully complete the program at the Cheyenne Transitional Center.

[¶5] Swain never reported to the program and absconded from supervision, prompting the filing of the second probation revocation petition. He was arrested on March 20, 2008. As before, Swain admitted to violating the terms of his probation. On July 3, 2008, the district court again revoked and reinstated Swain's probation. As a condition of that probation, the district court ordered Swain to "report directly to and be placed in and successfully complete the Transitions Residential Program," an inpatient substance abuse treatment program.

[T6] Swain also failed to report to that program, and the State's third revocation petition ensued. Swain was arrested on August 7, 2008. At his initial appearance on August 21, the district court advised Swain it was considering charging him with indirect criminal contempt for his alleged failure to abide by the order requiring him to attend and complete the Transitions Residential Program. On August 27, the district court issued an order to show cause in the underlying criminal case requiring Swain to appear before the court on September 4 and show cause why he should not be held in indirect criminal contempt for violating its order.

[T7] At the September 4 hearing, Swain's counsel implored the district court to drop the contempt charge, but the district court declined to do so. The district court, however, continued the contempt hearing, as well as the revocation hearing, until September 18 to allow counsel additional time to prepare a defense. During the September 18 hearing, Swain admitted failing to report to the inpatient treatment program as ordered, thereby providing a factual basis for both the probation revocation and the criminal contempt charge. The district court revoked Swain's probation and reinstated the underlying three-to-five-year prison sentence, with the original presentence credit of 275 days. The district court denied credit against that sentence for the time Swain served pending resolution of the three probation revocation actions. The district court also found Swain in indirect criminal contempt and sentenced him to sixty days in jail, with credit for fourteen days served between September 4 and September 18. The district court ordered that the underlying prison sentence be served consecutively to the sixty-day contempt sentence. This appeal followed.

DISCUSSION

Sentencing Credit

[¶8] Swain contends his sentence is illegal because the district court did not give him credit for the time he served in the Laramie County Detention Center on the three probation revocation actions. A sentence that does not include proper credit constitutes an illegal sentence. Whether a sentence is illegal is a question of law, which we review de movo. Beyer v. State, 2008 WY 137, ¶ 7, 196 P.3d 777, 780 (Wyo.2008); Manes v. State, 2007 WY 6, ¶ 7, 150 P.3d 179, 181 (Wyo.2007).

[¶9] Our recent decision in Jackson v. State, 2009 WY 82, 209 P.3d 897 (Wyo.2009), governs our disposition of Swain's claim. In Jackson, we held that the time spent in custody awaiting disposition of probation revocation proceedings must be credited against the probationer's underlying sentence if the incarceration is directly attributable to the underlying criminal conviction, overruling Halbleib v. State, 7 P.3d 45 (Wyo.2000) (de *507 nying credit on the grounds that pre-revocation confinement is due solely to acts or omissions constituting the violation of the conditions of probation and can never be directly attributable to the underlying offense). Jackson, ¶¶ 10-12, 209 P.3d at 900-01. In reaching this result, we stated:

[There are situations where the incarceration is directly attributable to the act that violates the conditions of probation rather than the underlying criminal charge. The most obvious are those situations where a defendant is arrested and charged with committing a new crime. But there are also cireumstances where a defendant is alleged to have violated probation conditions by committing acts that are not otherwise criminal. For example, probationers are frequently barred from leaving a defined geographic location, drinking alcohol, contacting the victim of the underlying crime, and so on. Violating these conditions may be the direct cause of the probationer's detention, but it is indisputable that the State would be unable to incarcerate the probationer for these acts absent the conviction for the underlying crime. Under those cireumstances, we are forced to conclude that pre-revocation incarceration is attributable to the underlying crime.

Id., ¶ 11, 209 P.3d at 900.

[¶10] We concluded in Jackson that credit was warranted because the sole reason for Mr. Jackson's detention was the allegation he violated the conditions of his probation. Mr. Jackson was not charged with a separate criminal offense as a result of the facts alleged in the petition, and the only allegation resolved in the State's favor supporting the probation revocation was that Mr. Jackson absconded from supervision. Under the specific facts of the case, we determined the time Mr.

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Bluebook (online)
2009 WY 142, 220 P.3d 504, 2009 Wyo. LEXIS 154, 2009 WL 3857413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swain-v-state-wyo-2009.