               IN THE SUPREME COURT, STATE OF WYOMING

                                        2016 WY 46

                                                            APRIL TERM, A.D. 2016

                                                                   April 20, 2016

CHARLES WAYNE PALMER, JR.,

Appellant
(Defendant),

v.                                                   S-15-0243

THE STATE OF WYOMING,

Appellee
(Plaintiff).

                     Appeal from the District Court of Platte County
                        The Honorable John C. Brooks, Judge

Representing Appellant:
      Charles W. Palmer, Jr., pro se.

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; David L. Delicath, Deputy
      Attorney General; Christyne M. Martens, Senior Assistant Attorney General;
      Joshua C. Eames, Assistant Attorney General.

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




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] In 2006, Charles Palmer, Jr. pled guilty to three counts of second-degree sexual
assault. The district court sentenced him to three consecutive sentences of eight to
sixteen years and credited ninety-nine days of presentence confinement toward his first
sentence. In 2015, Mr. Palmer filed a motion to correct illegal sentence, claiming that he
was entitled to credit for presentence confinement on all three of his consecutive
sentences. The district court denied that motion and Mr. Palmer filed this appeal. We
affirm.

                                         ISSUES
[¶2]    We rephrase the issues as follows:

       1. Does the doctrine of res judicata preclude Mr. Palmer from raising the
question of whether he was properly credited for presentence confinement?

      2. When sentences are consecutive, must presentence confinement credit be
awarded against all sentences or just one of the consecutive sentences?

                                         FACTS

[¶3] In 2006, Mr. Palmer pled guilty to three counts of second-degree sexual assault.
The district court sentenced Mr. Palmer to three consecutive sentences of eight to sixteen
years and awarded him credit for ninety-nine days of time served, which the court applied
to his first sentence.

[¶4] Mr. Palmer appealed the judgment and sentence and we affirmed in Palmer v.
State, 2008 WY 7, 174 P.3d 1298 (Wyo. 2008). The present matter commenced in July
of 2015, when Mr. Palmer filed a motion to correct an illegal sentence pursuant to Rule
35 of the Wyoming Rules of Criminal Procedure. He claimed that after he completed his
first sentence and began his second sentence, he learned that he would not be credited for
time served on his second and third sentences. He argued that he should have been
credited for time served against all three of the consecutive sentences. The district court
denied that motion. This appeal followed.

                                      DISCUSSION

I.     Does the doctrine of res judicata preclude Mr. Palmer from raising the question
       of whether he was properly credited for presentence confinement?

[¶5] The State first argues that the doctrine of res judicata bars Mr. Palmer from raising
the question of the legality of his sentence at this time. The State contends that since Mr.
Palmer did not raise any issue regarding his presentence confinement in his direct appeal,
he is foreclosed from doing so now.

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[¶6] Motions to correct illegal sentences are subject to the doctrine of res judicata. See,
e.g., Tucker v. State, 2015 WY 65, ¶ 11, 349 P.3d 987, 989 (Wyo. 2015); Bird v. State,
2015 WY 108, ¶ 10, 356 P.3d 264, 267 (Wyo. 2015); Evans v. State, 892 P.2d 796, 798
(Wyo. 1995). We have explained that “[c]ourts can correct illegal sentences under
W.R.Cr.P. 35(a) at any time, but the bases for correcting the sentence remain subject to
res judicata. If a party fails to show good cause why an issue was not raised at an earlier
opportunity, the court may decline to consider the issue.” Bird, 2015 WY 108, ¶ 10, 356
P.3d at 267 (citations omitted).

[¶7] In this instance, res judicata would normally apply to bar Mr. Palmer’s Rule 35
motion.1 However, “our rulings make clear that the application of the doctrine is
discretionary.” Patterson v. State, 2013 WY 153, ¶ 11, 314 P.3d 759, 762 (Wyo. 2013)
(citing Hamill v. State, 948 P.2d 1356, 1359 (Wyo. 1997)). This is an appropriate case to
exercise this discretion and consider the application of presentence confinement credit to
consecutive sentences, despite the fact that it could have been raised earlier.

II.     When sentences are consecutive, must presentence confinement credit be awarded
        against all sentences or just one of the consecutive sentences?

 [¶8] We have long held that motions for reductions of sentence pursuant to W.R.Cr.P.
35(b) are subject to the discretion of the sentencing court. See, e.g., Mead v. State, 2 P.3d
564, 566 (Wyo. 2000) (citing Barela v. State, 936 P.2d 66, 69 (Wyo. 1997); Carrillo v.
State, 895 P.2d 463, 464 (Wyo. 1995); McFarlane v. State, 781 P.2d 931, 932 (Wyo.
1989); Peper v. State, 776 P.2d 761, 761 (Wyo. 1989)). We apply the same standard to
motions under W.R.Cr.P. 35(a). See Harris v. State, 2015 WY 50, ¶ 8, 346 P.3d 944, 945
(Wyo. 2015); Cardenas v. State, 925 P.2d 239, 240 (Wyo. 1996); Ellett v. State, 883 P.2d
940, 942 (Wyo. 1994).

[¶9] However, the imposition of an illegal sentence is not within the discretion of a
sentencing court. In re CT, 2006 WY 101, ¶ 8, 140 P.3d 643, 646 (Wyo. 2006); White v.
State, 934 P.2d 745, 746 (Wyo. 1997) (An “error of law committed by the court under the
circumstances” is an abuse of discretion.) (quoting Garcia v. State, 777 P.2d 603, 607
(Wyo. 1989)). The question of whether a sentence is legal is a question of law which we

1
    In determining whether res judicata bars a claim, we consider the following four factors:

                  (1) identity in parties; (2) identity in subject matter; (3) the issues are the
                  same and relate to the subject matter; and (4) the capacities of the
                  persons are identical in reference to both the subject matter and the issues
                  between them.

Bird, 2015 WY 108, ¶ 10, 356 P.3d at 267 (citing Dax v. State, 2012 WY 40, ¶ 9, 272 P.3d 319, 321
(Wyo. 2012)).


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review de novo. Bird, 2015 WY 108, ¶ 9, 356 P.3d at 267; Manes v. State, 2007 WY 6,
¶ 7, 150 P.3d 179, 181 (Wyo. 2007); Spencer v. State, 2005 WY 105, ¶ 11, 118 P.3d 978,
982 (Wyo. 2005); Brown v. State, 2004 WY 119, ¶ 7, 99 P.3d 489, 491 (Wyo. 2004). 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.”
Manes, 2007 WY 6, ¶ 7, 150 P.3d at 181; Martinez v. State, 2002 WY 10, ¶ 9, 39 P.3d
394, 396 (Wyo. 2002); Duran v. State, 949 P.2d 885, 887 (Wyo. 1997).

[¶10] When the district court sentenced Mr. Palmer, it granted him ninety-nine days of
presentence confinement credit toward only the first of his three consecutive sentences.
Mr. Palmer argues that he is entitled to presentence confinement credit on all three of his
consecutive sentences, and because he was only granted credit on one of his sentences,
his sentence is illegal. The State contends that such credit would award Mr. Palmer
credit for triple the time he actually spent in confinement prior to the time he was
sentenced and thus would be improper.

[¶11] In support of his position, Mr. Palmer relies on language contained in Renfro v.
State, where we stated:

             The prospective rule for sentences entered following the
             publication date of this opinion is:

             Credit will be automatically granted for presentence
             incarceration time on all sentences. We will presume that in
             imposing the stated sentence, the trial court, in its exercise of
             discretion,     considered       presentence        confinement.
             Consequently, without regard for what is or is not stated in
             the sentence, credit for presentence confinement will be
             applied to reduce the length of remaining incarceration under
             the sentence. As long as the maximum and minimum terms
             remain within statutory limits, discretion of the trial court
             continues to establish the periods which obviously include
             recognition of presentence confinement.

785 P.2d 491, 498 (Wyo. 1990) (emphasis added) (footnote omitted). Mr. Palmer
focuses on the term “all sentences” and argues that this language means credit must be
given to each consecutive sentence.

[¶12] In Renfro, however, we did not consider how credit for presentence confinement
would be applied to consecutive sentences. Id. There, a single sentence was at issue: the
defendant pled guilty to a single charge and was sentenced for that charge. The sentence,
however, did not make any mention of the 138 days he spent in jail prior to sentencing.
Id. at 492. We held that the defendant was entitled to credit for that time against his
minimum and maximum sentence. Id. at 498-99.


                                            3
[¶13] While we have never considered the question of whether presentence confinement
must be credited to all sentences when sentences run consecutively, see, e.g., Renfro, 785
P.2d at 498-99, Milladge v. State, 900 P.2d 1156, 1160 (Wyo. 1995) (remanding for
determination of presentence confinement application to concurrent sentences),
W.R.Cr.P. 32(c)(2) provides some guidance. That rule directs sentencing courts to
“[i]nclude a finding of all time served by the defendant in presentence confinement for
any sentenced offense; [and] [s]tate the extent to which credit for presentence
confinement is to be given for each sentenced offense.” W.R.Cr.P. 32(c)(2)(E) and (F).
The rule does not require that presentence confinement credit be given for every
sentenced offense.

[¶14] We hold that when consecutive sentences are ordered, the proper allocation of
credit for time served is one that gives the defendant full credit for the actual time served
against his total term of imprisonment. Thus, allocating credit to one, but not more, of a
defendant’s consecutive sentences is proper. As the Supreme Court of Colorado
explained:

              In the case of concurrent sentences, the period of presentence
              confinement should be credited against each sentence. This is
              so because concurrent sentences obviously commence at the
              same time and in functional effect result in one term of
              imprisonment represented by the longest of the concurrent
              sentences imposed. Only by giving credit against each
              concurrent sentence will the defendant be assured of
              receiving credit for the full period of presentence confinement
              against the total term of imprisonment. When consecutive
              sentences are imposed, crediting the period of presentence
              confinement against one of the sentences will assure the
              defendant full credit against the total term of imprisonment.

Schubert v. People, 698 P.2d 788, 795 (Colo. 1985) (emphasis added). Thus, when
consecutive sentences are ordered, the presentence credit for time served should be
applied in such a way that the defendant receives credit against the total time of
incarceration. When concurrent sentences are imposed, credit is, in effect, given to all of
the sentences so that the total length of imprisonment is reduced by the time served prior
to sentencing. See State v. Romero, 55 P.3d 441, 444 (N.M. Ct. App. 2002) (rejecting
multiplication of presentence credit for consecutive sentences, stating “multiplying
presentence credit may have the effect of rewarding a defendant for committing multiple
crimes”); State v. Tauiliili, 29 P.3d 914, 918 (Haw. 2001) (“Once credit has been granted,
no additional purpose is served by granting a second or ‘double credit’ against a later
consecutive sentence.”)



                                             4
[¶15] At the sentencing hearing the district court ordered that Mr. Palmer receive “credit
for any time served” and, in its written Judgment and Sentence, the court applied Mr.
Palmer’s ninety-nine days of presentence confinement to the first of his three consecutive
sentences. Mr. Palmer was entitled to credit against the aggregate of his sentence for
time served prior to sentencing and he received that credit. The district court committed
no error of law and did not abuse its discretion when it denied his motion to correct
illegal sentence.

                                    CONCLUSION

[¶16] While Mr. Palmer’s argument should have been raised in his direct appeal, we
exercise our discretion and refrain from applying the doctrine of res judicata in this
instance. Mr. Palmer received credit for ninety-nine days of time served prior to
sentencing against the first of his three consecutive sentences. His aggregate sentence
was thereby reduced by that amount of time and is therefore legal. Affirmed.




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