               IN THE SUPREME COURT, STATE OF WYOMING

                                        2014 WY 80

                                                                APRIL TERM, A.D. 2014

                                                                         June 20, 2014

KERRY EUGENE GARNETT,

Appellant
(Defendant),

v.                                                   S-13-0195

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                    Appeal from the District Court of Goshen County
                        The Honorable Keith G. Kautz, Judge

Representing Appellant:
      Kerry Eugene Garnett, pro se.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Jenny L. Craig, Senior Assistant Attorney General; Meri V.
      Geringer, Senior Assistant Attorney General.

Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, JJ.

FOX, J., delivers the opinion of the Court; DAVIS, J., files a specially concurring
opinion, in which HILL, J., joins.


NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
FOX, Justice.

[¶1] Kerry Garnett, Appellant, filed documents entitled Motion to Vacate Judgment
and Sentence and/or Motion to Correct Illegal Sentence, Motion for Order to Show
Cause, and Motion for Hearing challenging his transfer from a Wyoming penitentiary to a
Virginia facility to serve his term of incarceration. The district court denied Mr.
Garnett’s motions, and we affirm.

                                         ISSUE

[¶2] Mr. Garnett, who appears pro se, did not specifically state what he believes to be
the issue in this appeal. Nevertheless, the following question can be distilled from his
argument: Did the district court abuse its discretion by denying Mr. Garnett’s motions
concerning his transfer to an out-of-state prison?

                                         FACTS

[¶3] The underlying facts of Mr. Garnett’s conviction are not material to this appeal
and have been previously set out in detail in Garnett v. State, 769 P.2d 371, 372 (Wyo.
1989). We will not repeat them here.

[¶4] After Mr. Garnett pled guilty to first-degree felony murder and aggravated
burglary, he was sentenced to life in prison on the murder charge plus twenty to twenty-
five years for the burglary count. Mr. Garnett did not appeal his conviction, although
through the years he has filed unsuccessful motions and petitions concerning his
conviction and sentence. Id. In the latest salvo, Mr. Garnett filed a collection of motions
asserting that his sentence is illegal because the Wyoming Department of Corrections
(DOC) transferred him to a facility in Virginia to serve out his sentence in 2013. He
argued that because of the alleged illegality of the transfer, the warden at the Wyoming
State Penitentiary must be ordered to show cause why Mr. Garnett should no longer be
incarcerated here.

[¶5] The district court denied Mr. Garnett’s motions, succinctly stating that they “are
without merit and beyond the jurisdiction of this Court.” This appeal was timely
perfected.

                               STANDARD OF REVIEW

[¶6]         “A motion to correct an illegal sentence under W.R.Cr.P.
             35(a) is addressed to the sound discretion of the sentencing
             court.” Mead v. State, 2 P.3d 564, 566 (Wyo. 2000). We,
             therefore, apply our abuse-of-discretion standard in reviewing
             a denial of a motion to correct an illegal sentence. Cardenas


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                 v. State, 925 P.2d 239, 240 (Wyo. 1996). The abuse-of-
                 discretion standard of review reaches the question of the
                 reasonableness of the trial court’s choice. Griswold v. State,
                 2001 WY 14, ¶ 7, 17 P.3d 728, 731 (Wyo. 2001). Judicial
                 discretion is a composite of many things, among which are
                 conclusions drawn from objective criteria; it means exercising
                 sound judgment with regard to what is right under the
                 circumstances and without doing so arbitrarily and
                 capriciously. Id.

Martinez v. State, 2002 WY 10, ¶ 7, 39 P.3d 394, 396 (Wyo. 2002).

                                               DISCUSSION

[¶7] A district “court may correct an illegal sentence at any time.” W.R.Cr.P. 35(a).
“[A]n illegal sentence is one that exceeds statutory limits, imposes multiple terms of
imprisonment for the same offense, or otherwise violates constitutions or the law.”
Gould v. State, 2006 WY 157, ¶ 25, 151 P.3d 261, 268 (Wyo. 2006) (internal quotation
marks omitted). The Court’s “inquiry under Rule 35 focuses on the sentence itself, not
upon the State’s actions in executing the sentence.” Id. Mr. Garnett challenges the way
in which the State has executed his sentences, not their legality, and thus his transfer to
Virginia does not constitute an illegal sentence. The district court did not abuse its
discretion when it denied his motion to correct illegal sentence.1

                                              CONCLUSION

[¶8]    The district court’s order is affirmed.




1
 Mr. Garnett’s Motion for Order to Show Cause is not a post-conviction motion authorized by statute or rule and
was properly dismissed by the district court.



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DAVIS, Justice, specially concurring, in which HILL, Justice, joins.

[¶9] I agree with the majority opinion that Appellant is not challenging the legality of
his sentences, but only the way in which the State has executed them. I write separately
because that conclusion should compel us to dismiss the appeal for lack of subject matter
jurisdiction, rather than affirm on the merits. Because Appellant is not properly
contesting the legality of his sentences under W.R.Cr.P. 35, the district court rightly
recognized that it did not have jurisdiction to consider Appellant’s assertions. See
Kurtenbach v. State, 2012 WY 162, ¶ 11, 290 P.3d 1101, 1104 (Wyo. 2012) (explaining
that in the absence of a specific statute or court rule allowing the trial court continued
jurisdiction, the court has no power to act further once a defendant’s conviction is final
because he has exercised his right to appeal, or the time for appeal has expired). This
Court ought to do the same. While it is certainly true that district courts have jurisdiction
to correct illegal sentences at any time, a party cannot create jurisdiction by titling a
pleading as something it is not. See, e.g., Hitz v. State, 2014 WY 58, 323 P.3d 1104
(Wyo. 2014); Ragsdale v. Hartford Underwriters Ins. Co., 2007 WY 163, ¶ 4, 169 P.3d
78, 80 (Wyo. 2007) (“[T]his Court looks to the substance of a motion in order to
determine the appropriateness of the motion.”).

[¶10] Because “the district court lacked subject matter jurisdiction, this Court has
jurisdiction on appeal, not on the merits, but only as to the jurisdictional issue.” Rock v.
Lankford, 2013 WY 61, ¶ 18, 301 P.3d 1075, 1080 (Wyo. 2013) (quoting Hall v. Park
Cnty., 2010 WY 124, ¶ 3, 238 P.3d 580, 581 (Wyo. 2010)). “The absence of subject
matter jurisdiction makes dismissal, rather than affirmance, the proper course.” Hall, ¶ 3,
238 P.3d at 581.




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